Introduction to

Administrative Law

Module 1
Themes – Learning Outcomes
• Does arming the administration with more and more power
keep in view the interest of the individual?
• Precautions to ensure that the administration does not misuse
and abuse its power.
• Do administrative agencies follow in discharging their functions,
principles such as, reasonableness, consistent with the rule of
law, democratic values, natural justice, etc?
• Have adequate control-mechanisms been developed so as to
ensure that the that the administrative process are kept within
the bounds of law and not act as power hungry creatures?
• Control the administration with efficiency, so that it doesn’t
interfere with impunity with rights of the individual.
 What is Administrative Law?
Legislature Executive Judiciary

Power/Role of the
Executive and the
relationship it shares.

Additional powers that

are delegated to it by
the Legislature and
the Judiciary
MINI STATE
Assessment Structure

• Mid-Term Examination (Module 1-4) – 30 Marks – In-class.

• Individual Presentations (15 Marks) – Students can select
their respective case laws from the course manual.
• Class Participation (5 Marks) – Offline and Online
interactions.
What organ of the State do you
fear the most?

• Executive
• Judiciary
• Legislature
• I don’t know what these terms mean
• I’m unsure of the answer
 Introduction
• Organ of the State we fear  If we fear the executive, why is that? 
Discretion/Power/Accountability/Police part of the executive.

• How little can we do about it?  if so, should administrative law be declared
illegal and immoral?  cause most of the time, you can do precious little.
• Principle 1 : There needs to be a nexus for the
discretion/power given and the exercise of this discretion.
• Coffee Machine Conundrum.
• Richard Epstein – Huge Administrative Law critique.
• Classical Liberalism  Political Gospel – Lassiez Faire  began to crumble
very quicky, why?
• Police State  Social Welfare State cradle  grave
 a. Protector
b. Regulator
Five Functions of c. Provider
the Executive in d. Entrepreneur
a Social Welfare e. Arbiter
State
Where the relationship between
the executive and judiciary
becomes paramount?
 Recap

• Principle 1 : There needs to be a nexus for the discretion/power

given and the exercise of this discretion.
• AL a necessary evil?
• Radical change in the philosophy of the State  relationship
between the state and the individual.
• Inadequate judiciary  why? Need for tribunalisation.
• Inadequate legislature  why? Need for delegated legislations.
• Scope of Experimentation and Flexibility  COVID.
• Can move away from the technicalities and legalistic approach  adopt
a more functional approach.
What is the implication
of the same?
• Increased State Activism.
• Usurping of More Power.
• Increased responsibility within all
the three organs of the Govt.
 • Executive cum Administrative
Organ.
• Delegated Legislation.
• Quasi-Judicial Bodies.
Hegemony of the • Discretionary Powers.
Executive  The Mini • Regulatory Functions.
State
Why are granting all
these powers imperative? • Socio-Economic Problems
can be tackled on
ground.
• Flexibility and
Experimentation.
• Preventative in Nature.
 Classical Liberalism: New Liberalism:
• STATE SOV. • STATE
• Restricted state action RESPONSIBILITY
Political Reform • free trade • Problems of urban
poverty,
• individual concentration of
responsibility. economic power, etc.
• State authority to • State Activism
promote individual
liberty. • Collectivism.
• Secure a “rule of law”
 Philosophical Reform

STATE  INDIVIDUAL
Classic Liberalism New Liberalism
• Liberty – less state • Liberty – Can only be
intervention. achieved once basic needs
have been met.
• Equality – everyone is
equal in the eyes of the • Equality – States
law. responsibility to achieve
substantive equality.
 What about Law? Classical vs. New Liberalism
• AV Dicey • Leon Duiguit
• Established Legal Philosophy • Functionalist style of Public Law –
dogma.
• Consti Law are transcendent
standards against which social and • Transformation of State =
political changes are evaluated (top- Transformation of Law.
down approach). • Consti Law – must respond to social
• Lawyers' ought to change. (bottom-up)
protect the
fundamental values. • Lawyers' ought to see how the law is
functional to society.
• Subjective Rights – Subjectivist
System. • Objective Law – Individual Rights >
right to the state.
state sov. > natural right of an
individual. • State – Service Provider. Sov.
power to perform functions.
• Sovereign right of the state to
• Legislative Power can be
command. delegated.
• Legislative Power is sacrosanct. • Redressal Mechanism – against any
abuse of power.
 Basic elements:
• Law  promoting human improvement.
• How should law be understood?
• Human are intrinsically social
creatures.
• Public law to promote social solidarity.
Functionalist
• Govt is the subject of duties.
“Style” of Public
• Lawyers should not get bound on
Law ‘form’ over ‘substance.’
• Law should be interpreted purposively.
Why a Style?
• Conceptions of Liberty and Equality.
• Common Good – rights and law in
place.
 • ‘Accountability,
Participation and rights’
do not possess the same
meaning.
Models of • Changes depending on the
type and nature of society.
Administrativ • Legislature – Courts 
e Law both important
determining the nature and
in

scope of administrative law.

 Unitary Democracy
• AV Dicey
• Parliamentary Democracy/Monopoly.
• Omnicompetent.
• Legislature –completely controls the actions of the Executive (Cabinet).
• Principle Doctrinal Barrier – Rule of Law.
• House of Commons – self - correcting
• Judicial Intervention – Ultra Vires Principles. Police the boundaries  Judicial
Review  Restricted to General legislative intent vs. Private rights only –
contract or torts.
• What is the implication of this? – Complex case repository – similar case in India.
• Critique of the ultra vires principle.
 Rights Based Approach

• More Prevalent – Modern Welfare State.

• Imposition of certain standards of legality – courts are not simply just imposing
legislative will – Inclusion of principles as well.
• Judicial Review – three-fold -
1. Protection of Fundamental Rights.
2. Protection of FR + articulation of principles of good administration  legality,
procedural propriety, legitimate expectation, proportionality.
3. Rights based view of law and adjudication  Political morality, fairness, procedural
due process.
Judicial Review is more expansive.
English vs. Indian • Parliament is Supreme. • Written Constitution.
Administrative Law • Any action can be • Power of Judicial review is
challenged only if it is Ultra conferred by the
Vires the statute under which Constitution on the
it was taken. SC/HC.
• Can be challenged as ultra
vires the
constitution/statute/parent
act. (4 possibilities).
Administrative Law is a law but not a law in the lawyer’s sense. It
is a law in the realist's sense.
• Principle 2 - Deals with the relationship of the individual and the
State
• Power of the administrative and quasi-administrative agencies.
• Existing principles must be followed while exercising their power in
relation to individuals  PNJ, Reasonableness and fairness.
• Primarily concerns itself with official actions.
• Principle 3 - Procedure by which an official action is reached.
• Control- Mechanism – Review process.
• “Easy access to justice”
• Right to know (RTI).

Describing Administrative Law.

 “denoting that portion of a nation’s
legal system which determines the
Describing legal status and liabilities of all
State officials, which defines the
- rights and liabilities of private
individuals in their dealings with public
Administrat officials and which specifies the
procedure by which those rights and
ive Law in liabilities are enforced.”
the UK. - AV Dicey

“Law relating to the Administration. It

determines the organization, power and
duties of administrative agencies.”
- Sir Ivor Jennings.
 History in the UK

• Principle Doctrinal Barrier – RULE OF LAW.

• 1885 – Dicey ignored the existence of administrative discretion and administrative justice.
• Ridge vs. Baldwin (1964) – “We do not have a developed system of administrative law –
perhaps because until recently we did not need it.” – Lord Reid.
• 1915 - Dicey changed his tune. Conceded to the fact that some elements of droit had
entered the law in England.
• Board of Education vs. Rice (1911) and Local Government Board vs. Arlidge (1915).
• Administrative Law was restricted to only two aspects – delegated legislation and
administrative adjudication.
• 1929 – Donoughmore Committee  Statutory Instruments Act, 1946.
• 20th Century  increase in Tribunalization
 • Constitutional and Hereditary Monarchy.
• Parliamentary System – supreme authority
held by the legislature  Unitary
Democracy.
• Legislature  Parliament (Rule of law). Lower
House -House of Commons and Upper House
STRUCTURE – UK – House of Lords.
• Executive  Cabinet.
• Judiciary  House of Lords Supreme Court
of Judicature  Country Courts.
 RULE OF LAW
• Basic principles of the English Constitution.
• Entire basis for administrative law.
• Dicey’s understanding of the Rule of law
a. Supremacy of law – as opposed to the influence of
arbitrary powers or wide discretionary powers.
b. Equality before law. – equal subjection of all classes to
the ordinary law  French Structure – Droit Administraf.
c. Judge Made Constitution. – judicial decisions in
concrete cases.
• MAJOR PITFALL.
 “Administrative Law is the law
Describing- concerning the powers and
procedure of administrative
agencies, including the law
Administrat governing judicial
administrative action.”
review of

ive Law in
the US. - Kenneth Culp
Davis.
 • Principle Doctrinal Barrier –
SEPARATION OF POWER
• First Federal Administrative Law –
1789.
History in • Fourth Branch of the Government –
the US Administration.
• 1946 – Administrative Procedure Act
– provisions relating to judicial
control over administrative action.
 • Federal Republic  National or Federal –
State – Local
• Presidential Form of Government.
• Separation of Powers between the executive,
legislation and judicial branches.
• Legislature – Congress.
STRUCTURE • Executive – President.
• Judiciary – Supreme Court and other Federal
Courts.
• Independent Regulatory Commissions
–”fourth branch”
SEPARATION OF POWER
• Principal doctrinal barrier – USA.
• Separation between the executive and the legislature unlike in UK and
India.
• All three powers and functions of the government must, in a free
democracy always be kept separate and be exercised by three separate
organs of the government.
• Montesquieu – The spirit of the law.
“When the legislative and executive powers are united in the same person
or the same body of magistrates, there can be no liberty, because
apprehensions may arise, lest the same monarch or senate should enact
tyrannical laws, to execute the, in a tyrannical manner.”
• Defects of this theory.
 “Administrative Law deals with
the structure, power and
functions of the organs of
administration; the limits of
Indian Model their powers and functions;
the methods by which their
powers are controlled
including the legal remedies
available to a person against
them which his rights are
infringed by their operation.”
- M.P. Jain.
 • British Rule in India 
Significant increase in
History in the government powers.
• 20th Century  Admin
India Law became a live
subject.
Structure in India

The Constitution of India is sometimes referred to as a cosmopolitan

document because it derives several of its features from foreign sources,
most notably:
• Parliamentary government, Dicean Rule of Law and bicameral UK.
• Directive Principles of State Policy  Ireland.
• Fundamental rights, judicial independence, separation of power,
functions of the president from  US.
• Union list and state list  Canada.
• Concurrent list and freedom of trade Australia.
• Fundamental duties  former USSR
• Having features of both federal and unitary constitutions, the
Constitution of India is neither purely federal nor purely unitary and is
widely considered as quasi-federal in nature.
 • Dicey’s Rule of Law has been
adopted and incorporated.
a. Supremacy of law -
Constitution is supreme and
all three organs of the government
Rule of Law are subordinate
Constitution.
to the

under Indian b. Equality before law -

“King can do not wrong” does not
Constitution apply.
c. Judge-made
Constitution - duty of the role to
protect the rule of law.
society’s need vs. an
individual’s personal liberty.

• Is individual liberty really

protected by the Dicean Rule
Black Chapter of Indian Democracy

•1972 – INC Lok Sabha

election win.
•“Garibi Hatao”
•1973 – drought – lead to a
huge deficit in the budget,
inflation shot upto 20%.
•Large scale protests.
Allahabad High Court
•Indira Gandhi vs. Raj Narain
•Justice Jagmohan Lal Sinha of the Allahabad High Court.
•Raj Narain’s case against Gandhi was that Yashpal
Kapoor, who was assisting Gandhi in her election
campaign, was a government servant at that time and
hence it was electoral malpractice.
•Former PM Indira Gandhi was summoned as a witness.
•The hearing of the case had taken four years and the
judgement was reserved on 23.05.1975. Judgment came
out on 12.06.1975.
•256 page verdict.
•Mrs Gandhi guilty of corrupt electoral practices. The
High Court struck down her election to Lok Sabha in
1971 and disqualified her for six years.
•Political Pressure on the Judiciary – Judicial
Independence?
 Emergency Declared
•The Supreme Court didn’t fully come to the rescue either. In its
emergent interim order passed by vacation judge Justice
Krishna Iyer, Mrs Gandhi was permitted to continue attending
the Parliament but restrained from voting.
•The call for the resignation of the lame duck Prime Minister
gained momentum across the nation.
•INC imposed the State of Emergency on 25th June, 1975.
•President Fakhruddin Ahmed Ali signed the proclamation under
Art 352 of the Constitution imposing the State of Emergency
on the frivolous grounds of “internal disturbance”.
•Art 353 and Art 359 of the Constitution came into effect. An
order was issued by the President that no Fundamental Rights,
including the right to life under Article 21 would be enforceable.
•All opposition leaders were detained under draconian
maintenance of internal security Act (MISA) without trial.
•1.5 lakhs individuals were detained.
•The freedom of press was gagged.
•The authoritarian regime under the color of Emergency
flourished till January 1977.
Habeas Corpus Case

• As per Article 359 of the Constitution, upon the Proclamation of

Emergency by the President, an order may be made that all the
fundamental rights become unenforceable (Art 14, 21 and 22).
• Despite the existence of these rights, one does not have the ability to move
any High Court or the Supreme Court to enforce it.
• In these circumstances, the right to life under Article 21 could not be enforced
under Article 226.
• Many of the detainees were not informed of the grounds of their detention.
• Some of them filed WPs (Habeas Corpus) in different High Courts challenging
their detention order as illegal and unconstitutional.
• HCs overruled the government decisions.
• Government filed an appeal in the Supreme Court – ADM Jabalpur vs.
Shivakant Shukla (1976)
WHETHER THERE WAS ANY “RULE OF LAW” IN
INDIA APART FROM AND IRRESPECTIVE OF ART. 21?

Majority Opinion (Ray CJ, Beg, Chandrachud and Bhagwati JJ)

(Paras 435-439, 458-466, 472, 485-487)
• Rule of law concept is inapplicable to emergency, as the emergency
provisions themselves contain the rule of law for such situations.
• Art 21- Rule of law regarding life and liberty. No other rule of law can
have separate existence as a distinct right  is not an inherent right.
• Intention of the Parliament was that the jurisdiction of the court u/A
226 in particular these type of cases is affected during the duration
of an emergency.
Dissenting Opinion (Khanna J.)

(Paras No. – 525-536, 575, 593)

• Justice H.R. Khanna in his dissent stated that invoking Article 359(1) does not
take away the right of an individual to approach the Court for the
implementation of statutory rights.
• He added that Article 21 is not the sole repository of life and personal liberty
• He further stated that during the proclamation of emergency, Article 21 only
loses the procedural power, but the substantive power of this article is very
fundamental, and the State does not have the power to deprive any person
of life and liberty without the authority of law.
• Had Art. 21 not been drafted and inserted in Part III, in that event would it
have been permissible for the State to deprive a person of this life or liberty
without the authority of law? – No, cause it’s a natural right.
• Art. 21 is not the sole repository of the right to life and personal liberty and
can never be taken away from the executive.
44th Constitutional Amendment

• 1978
• A two-thirds majority is needed to pass.
• Required a six-month review of the emergency declaration and,
without new parliamentary assent, its termination after that
period.
• writs of habeas corpus may be filed with the Supreme Court and
the High Courts.
• Anybody may challenge any declaration of emergency in court
based on the government’s bad intentions.
• The National Emergency does not stop the enforcement of Articles
20 and 21 rights.
 Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of
India And Ors (2018)

• The nine Judge Bench in this case unanimously reaffirmed the right to privacy as a fundamental right
under the Constitution of India.
• The right to privacy was integral to freedoms guaranteed across fundamental rights, and was an intrinsic
aspect of dignity, autonomy and liberty.
• Arguments concerning the legal validity of the Aadhaar database.
• “the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article
21 and as a part of the freedoms guaranteed by Part III of the Constitution”.
• “The right to privacy imposes on the State a duty to protect the privacy of an individual, corresponding to
the liability that is to be incurred by the state for intruding the right to life and personal liberty. The right
to life and liberty are inalienable to human existence – not bounties granted by the state, nor creations
of the Constitution. No civilized state can contemplate an encroachment upon them without the
authority of law. ADM Jabalpur vs, S.S. Shukla is overruled to the extent that it held that the aforesaid
rights may be surrendered in an emergency.” – Chandrachud J.
Contd.

• "The judgments rendered by all the four judges constituting the majority in Additional
District Magistrate, Jabalpur are seriously flawed. Life and personal liberty are
inalienable to human existence. They constitute rights under natural law. Neither life
nor liberty are bounties conferred by the State nor does the Constitution create these
rights.”
• "The right to life has existed even before the advent of the Constitution. In recognising
the right, the Constitution does not become the sole repository of the right. It would be
preposterous to suggest that a democratic Constitution without a Bill of Rights would leave
individuals governed by the State without either the existence of the right to live or the
means of enforcement of the right. The right to life being inalienable to each individual, it
existed prior to the Constitution and continued in force under Article of the Constitution.
On J. Khanna’s Opinion

• "Justice Khanna was clearly right in holding that the recognition of the right
to life and personal liberty under the Constitution does not denude the
existence of that right, apart from it nor can there be a fatuous assumption
that in adopting the Constitution the people of India surrendered the
most precious aspect of the human persona, namely, life, liberty and
freedom to the State on whose mercy these rights would depend. Such a
construct is contrary to the basic foundation of the rule of law which imposes
restraints upon the powers vested in the modern state when it deals with the
liberties of the individual.
• "The power of the Court to issue a writ of habeas corpus is a precious and
undeniable feature of the rule of law."
Separation of Power

• Principal doctrinal barrier – USA.

• Separation between the executive and the legislature unlike
in UK and India.
• All three powers and functions of the government must, in a
free democracy always be kept separate and be exercised by
three separate organs of the government.
• Montesquieu – The spirit of the law.
“When the legislative and executive powers are united in the
same person or the same body of magistrates, there can be
no liberty, because apprehensions may arise, lest the same
monarch or senate should enact tyrannical laws, to execute
the, in a tyrannical manner.”
Rai Sahib Ram Jawaya Kapur vs. State of Punjab (1955)

• Art 32.
• 6 people- who carry out the printing, pressing and publishing of books
– “Uttar Chand & Sons”
• Punjab Education department – 1950 & 1952  Nationalization of
textbooks and awarded unwarranted restrictions on book publications.
• Violation of Art. 19 (1) (g) cannot happen by mere executive orders
without any legislative backing.
• Process Pre 1950 – Call for books by Publishers/Authors.
• Post 1950 – Monopolized the process  Call for selected textbooks by
Authors only + Copyright of these books vested with the government
+ authors would only get royalty of 5%.
Petitioner’s Contention

• Executive is “wholly incompetent” to act without any

legislative sanction, to engage in any trade or business
activity.
• Monopoly over a trade or business could only be done by a
legislative act and not an executive action.
• Cannot be done without payment of compensation under Art.
31.
Executive Power under the Constitution

Art 73 and 162 – merely discuss the distribution of power

between the Center and State.

But,
What is the executive?
What would legitimately come within its scope?
“the language of article 162 clearly indicates that the powers
of the State executive do extend to matters upon which
the state Legislature is competent to legislate and are
not confined to matters over which legislation has been
passed already. ”
Court’s Analysis
• Allahabad High Court in Motilal v. The Government of the State of Uttar
Pradesh - whether the Government of a State has power under the
Constitution to carry on the trade or business of running a bus service in the
absence of a legislative enactment authorising the State Government to do so.
• “the executive power may be such as is given to the executive or is implied,
ancillary or inherent. It must include all powers that may be needed to carry into
effect the aims and objects of the Constitution. It must mean more than merely
executing the laws.” (Loughlin – Purposive interpretation)
• The State has a right to hold and manage its own property and carry on such
trade or business as a citizen has the right to carry on, so long as such activity
does not encroach upon the rights of others or is not contrary to law.
• An act would be within the executive power of the State if it is not an
act which has been assigned by the Constitution of India to other
authorities or bodies and is not contrary to the provisions of any law
and does not encroach upon the legal rights of any member of the
public  power of the executive.
What is the function of the
executive?
• The executive power connotes the residue of governmental functions that remain after
legislative and judicial functions are taken away.
• “The Indian Constitution has not indeed recognised the doctrine of separation of
powers in its absolute rigidity, but the functions of the different parts or branches of
the Government have been sufficiently differentiated and consequently it can very well
be said that our Constitution does not contemplate assumption, by one organ or part
of the State, of functions that essentially belong to another. The executive indeed can
exercise the powers of departmental or subordinate legislation when such powers
are delegated to it by the legislature. It can also, when so empowered, exercise
judicial functions in a limited way. ”(Para 14)
• The Executive can never go against any provision of the Constitution or of any law.
• A modern State is certainly expected to engage in all activities necessary for the
promotion of the social and economic welfare of the community.
Limits within which the executive Government can function
• The executive must act subject to the control of the legislature.
• If an executive wants to start a trade/business – does it always need a legislative sanction? – “We cannot say
that such legislation is always necessary.”
• If the trade or business involves expenditure of funds, it is certainly required that Parliament should authorise
such expenditure either directly or under the provisions of a statute.
• The sums required for carrying on the business are entered in the annual financial statement which the
Ministry has to lay before the House or Houses of Legislature in respect of every financial year under article
202 of the Constitution.
• The consolidated fund are submitted in the form of demands for grants to the legislature and the legislature has
the power to assent or refuse to assent to any such demand or assent to a demand subject to reduction of the
amount. (Art 203)
• After the grant is sanctioned, an Appropriation Bill is introduced to provide for the appropriation out of the
consolidated fund of the State of all moneys required to meet the grants thus made by the Assembly (Art. 204)
• The Appropriation Act is passed, the expenditure made under the heads covered by it would be deemed to be
properly authorised by law (Art 266(3))
When is a Legislation required?
“Specific legislation may indeed be necessary if the Government require certain
powers in addition to what they possess under ordinary law in order to carry on the
particular trade or business. Thus when it is necessary to encroach upon private
rights in order to enable the Government to carry on their business, a specific
legislation sanctioning such course would have to be passed.”

Para 19.
Was Art. 19 (1) (g) violated?
• There is no fundamental right in the publishers that any of the books printed and
published by them should be prescribed as textbooks by the school authorities or
if they are once accepted as textbooks they cannot be stopped or discontinued in
future.
• “The only right which publishers, like the petitioners had, was to offer their books
for inspection and approval by the Government. They had no right to insist on any
of their books being accepted as textbooks. So the utmost that could be said is that
there was merely a chance or prospect of any or some of their books being
approved as textbooks by the Government. Such chances are incidental to all
trades and business and there is no fundamental right guaranteeing them.” (Para
22)
• No right was infringed.
Impact on Administrative Law – Recap
• Police (Classical Liberalism) Social Welfare State (New Liberalism)
 Growth/Development of Public Law 5 Functions of the
Executive  Government Accountability  Judicial Review/Activism.
• Executive performing – Administrative/Quasi-Legislative/Quasi Judicial
Functions.
• Tackling socio-economic issues  Flexibility and Experimentation.
• Rule of Law Doctrine – Law + Equality before Law + Judicial
Intervention – create a balance between societal needs vs. individual
liberty.
• Separation of Power Doctrine – Diluted  diverse powers given the
executive  legislative/judicial  effectively implement policies and
ensure law and order  Backed by the Judiciary.
 Discussion Point
Administrative law in India is wholly a judge-made law
which has all the strengths and frailties of judicial law
making. These strengths and frailties may be discussed
with special reference to the trade off between executive
arbitrariness and judicial arbitrariness inherent in judicial
review.