Comparison between Indian Administrative Law and English Administrative Law

The Indian Institution of Law has defined Administrative Law in the following words;

'Administrative Law deals with the structure, powers and functions of organs of administration, the method and procedures followed by them in exercising their powers and functions, the method by which they are controlled and the remedies which are available to a person against them when his rights are infringed by their operation.'[1]

Introduction

The expression "Administrative Law" may mean two different things, namely, (a) law relating to administration, and (b) law made by the administration. The latter would itself be of two kinds. Firstly, it may be rules, regulations, orders, schemes, bye-laws, etc., made by the administrative authorities on whom power to make such subordinate legislation is conferred by a statute. This may be called rule-making. Secondly, certain administrative authorities have power to decide questions of law and/ or fact affecting particular person or persons generally, i.e., adjudication. Most of such powers are exercised quasi-judicially. Such decisions apply a statute or administrative policy and instructions to specific cases. In doing so they create a body of administrative law.

Administrative law relating to administration engages the attention of lawyers. Administration is government or a department or an agency of the government. Under the Constitution of India the powers of the state are divided between the Union (including the Union Territories) on the one hand and the states on the other hand. Both the Union and the states are divided into three great departments, namely, (1) the executive, (2) the legislature, and (3) the judiciary.

Administrative powers are exercised by the executive in either of two ways. It may act in exercise of the executive power of the Union or of a state or it may act under the authority of a specific statute or subordinate legislation. The exercise of all administrative powers is subject to the rule of law. The legal control may be exercised by three authorities, namely, (1) the legislature, (2) the higher executive, and (3) the judiciary. Administrative law concerns itself mainly with the legal control of the government or of administrative authorities by the courts.[2]

Origin

There is an old adage containing a lot of truth that 'power corrupts and absolute power corrupts absolutely'. To evolve effective control mechanism, man had been looking for devices to contain the forces of tyranny and authoritarianism. 'Separation of Powers' was conceived to be one such device.

It may not be possible to state precisely the origins of the doctrine of separation of powers. However, if we look to the writings of the Greek philosopher Aristotle, it is possible to discern a rudimentary separation of powers doctrine. Thus in his Politics, Aristotle remarked that:

There are three elements in each constitution in respect of which every serious lawgiver must look for what is advantageous to it; if these are well arranged, the constitution is bound to be well arranged, and the differences in constitutions are bound to correspond to the differences between each of these three elements. The three are, first the deliberative, which discusses everything of common importance; second, the officials . . .; and third, the judicial element.

The English political theorist, JohnLocke[3] (1632-1704), also envisaged a threefold classification of powers. Writing in The Second Treatise of Government (1689), Locke drew a distinction between three types of power: legislative, executive and federative. . In Locke's analysis, the legislative power was supreme and although the executive and federative powers were distinct, the one concerned with the execution of domestic law within the state and the other with a state's security and external relations, he nevertheless took the view that 'they are always almost united' in the hands of the same persons. Absent from his classification is any mention of a separate judicial power. Moreover, the proper exercise of these powers is achieved not through separation but on the basis of trust i.e., that a community has entrusted political power to a government. Thus, Locke's analysis does not, strictly speaking, amount to the exposition of a doctrine of the separation of powers.[4]

Separation of Powers

In the British Constitution the Parliament is the Supreme legislative authority. At the same time, it has full control over the Executive. The harmony between the Legislator and the (Executive) is secured through the Cabinet. The Cabinet is collectively responsible to the Parliament. The Prime Minister is the head of the party in majority and is the Chief Executive authority. He forms the Cabinet. The Legislature and the Executive are not quite separate and independent in England, so far as the Judiciary is concerned its independence has been secured by the Act for Settlement of 1701 which provides that the judges hold their office during good behaviour, and are liable to be removed on a presentation of addresses by both the Houses of Parliament. They enjoy complete immunity in regard to judicial acts.

In India, the executive is part of the legislature. The President is the head of the executive and acts on the advice of the Council of Ministers. Article 53 and 74 (1) can be impeached by Parliament. Article 56 (1) (b) read with Art 61, Constitution. The Council of Ministers is collectively responsible to the Lok Sabha Article 75 (3) and each minister works during the pleasure of the President. Article 75 (2) If the Council of Ministers lose the confidence of the House, it has to resign.

Functionally, the President's or the Governor's assent is required for all legislations. (Articles 111,200 and Art 368). The President or the Governor has power of making ordinances when both Houses of the legislature are not in session. (Articles 123 and 212). This is legislative power, and an ordinance has the same status as that of a law of the legislature. (AK Roy v Union of India AIR 1982 SC 710) The President or the Governor has the power to grant pardon (Articles 72 and 161) The legislature performs judicial function while committing for contempt those who defy its orders or commit breach of privilege (Articles 105 (3) 194 (3) Thus, the executive is dependent on the Legislature and while it performs some legislative functions such as subordinate it, also performs some executive functions such as those required for maintaining order in the house.

There is, however, considerable institutional separation between the judiciary and the other organs of the government Article 50.[5]

Rule of Law

It does not admit of being readily expressed. Hence, it is difficult to define it. Simply speaking, it means supremacy of law or predominance of law and essentially, it consists of values. The concept of the rule of Law is of old origin. [6]

Edward Coke is said to be the originator of this concept, when he said that the King must be under God and Law and thus vindicated the supremacy of law over the pretensions of the executives. Prof. A.V. Dicey later developed on this concept in the course of his lectures at the Oxford University. Dicey was an individualist; he wrote about the concept of the Rule of law at the end of the golden Victorian era of laissez-faire in England. That was the reason why Dicey's concept of the Rule of law contemplated the absence of wide powers in the hands of government officials. According to him, wherever there is discretion there is room for arbitrariness. Further he attributed three meanings to Rule of Law.

(1) The First meaning of the Rule of Law is that 'no man is punishable or can lawfully be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land[7]

(2) The Second Meaning of the Rule of Law is that no man is above law. Every man whatever be his rank or condition. is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.

(3) The Third meaning of the rule of law is that the general principle of the constitution are the result of judicial decisions determining the rights of private persons in particular cases brought before the court.[8]

The view of Dicey as to the meaning of the Rule of Law has been subject of much criticism. The whole criticism may be summed up as follows.

Dicey has opposed the system of providing the discretionary power to the administration. In his opinion providing the discretionary power means creating the room for arbitrariness, which may create as serious threat to individual freedom. Now a days it has been clear that providing the discretion to the administration is inevitable. The opinion of the Dicey, thus, appears to be outdated as it restricts the Government action and fails to take note of the changed conception of the Government of the State.

Dicey has failed to distinguish discretionary powers from the arbitrary powers. Arbitrary power may be taken as against the concept of Rule of Law . In modern times in all the countries including England, America and India, the discretionary powers are conferred on the Government. The present trend is that discretionary power is given to the Government or administrative authorities, but the statute which provides it to the Government or the administrative officers lays down some guidelines or principles according to which the discretionary power is to be exercised. The administrative law is much concerned with the control of the discretionary power of the administration. It is engaged in finding out the new ways and means of the control of the administrative discretion.

According to Dicey the rule of law requires that every person should be subject to the ordinary courts of the country. Dicey has claimed that there is no separate law and separate court for the trial of the Government servants in England. He criticized the system of droit administratif prevailing in France. In France there are two types of courts Administrative Court and Ordinary Civil Courts. The disputes between the citizens and the Administration are decided by the Administrative courts while the other cases, (i.e. the disputes between the citizens) are decided by the Civil Court. Dicey was very critical to the separation for deciding the disputes between the administration and the citizens.

According to Dicey the Rule of Law requires equal subjection of all persons to the ordinary law of the country and absence of special privileges for person including the administrative authority. This proportion of Dicey does not appear to be correct even in England. Several persons enjoy some privileges and immunities. For example, Judges enjoy immunities from suit in respect of their acts done in discharge of their official function. Besides, Public Authorities Protection Act, 1893, has provided special protection to the official. Foreign diplomats enjoy immunity before the Court. Further, the rules of 'public interest privilege may afford officials some protection against orders for discovery of documents in litigation.' Thus, the meaning of rule of law taken by Dicey cannot be taken to be completely satisfactory[9]

Third meaning given to the rule of law by Dicey that the constitution is the result of judicial decisions determining the rights of private persons in particular cases brought before the Courts is based on the peculiar character of the Constitution of Great Britain.

In spite of the above shortcomings in the definition of rule of law by Dicey, he must be praised for drawing the attention of the scholars and authorities towards the need of controlling the discretionary powers of the administration. He developed a philosophy to control the Government and Officers and to keep them within their powers. The rule of law established by him requires that every action of the administration must be backed by law or must have been done in accordance with law. The role of Dicey in the development and establishment of the concept of fair justice cannot be denied.

The concept of rule of law, in modern age, does not oppose the practice of conferring discretionary powers upon the government but on the other hand emphasizing on spelling out the manner of their exercise. It also ensures that every man is bound by the ordinary laws of the land whether he be private citizens or a public officer; that private rights are safeguarded by the ordinary laws of the land[10]

Rule of Law and Indian Constitution 

In India the Constitution is supreme. The preamble of our Constitution clearly sets out the principle of rule of law. It is sometimes said that planning and welfare schemes essentially strike at rule of law because they affect the individual freedoms and liberty in may ways. But rule of law plays an effective role by emphasizing upon fair play and greater accountability of the administration. It lays greater emphasis upon the principles of natural justice and the rule of speaking order in administrative process in order to eliminate administrative arbitrariness.

In an early case S.G. Jaisinghani V. Union of India and others[11]  the Supreme Court portrayed the essentials of rule of law in a very lucid manner. It observed: ' The absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion when conferred upon executive authorities must be continued within clearly defined limits. The rule of law from this points of view means that decisions should be made by the application of known principles and rules and, in general such decision should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is antithesis of a decision taken in accordance with the rule of law.

The Supreme Court in a case, namely, Supreme Court Advocates on Record Association V. Union of India[12] reiterated that absence of arbitrariness is one of the essentials of rule of law. The Court observed. 'For the rule of law to be realistic there has to be rooms for discretionary authority within the operation of rule of law even though it has to be reduced to the minimum extent necessary for proper, governance, and within the area of discretionary authority, the existence of proper guidelines or norms of general application excludes any arbitrary exercise of discretionary authority. In such a situation, the exercise of discretionary authority in its application to individuals, according to proper guidelines and norms, further reduces the area of discretion, but to that extent discretionary authority has to be given to make the system workable'.

CLASSIFICATION OF ADMINISTRATIVE ACTION

Administrative action is a comprehensive term and defies exact definition. In modern times the administrative process is a by-product of intensive form of government and cuts across the traditional classification of governmental powers and combines into one all the powers, which were traditionally exercised by three different organs of the State. Therefore, there is general agreement among the writers on administrative law that any attempt of classifying administrative functions or any conceptual basis is not only impossible but also futile. Even then a student of administrative law is compelled to delve into field of classification because the present-day law especially relating to judicial review freely employs conceptual classification of administrative action. Thus, speaking generally, an administrative action can be classified into four categories:

i) Rule-making action or quasi-legislative action - Legislature is the law-making organ of any state. In some written constitutions, like the American and Australian Constitutions, the law making power is expressly vested in the legislature. However, in the Indian Constitution though this power is not so expressly vested in the legislature, yet the combined effect of Articles 107 to III and 196 to 201 is that the law making power can be exercised for the Union by Parliament and for the States by the respective State legislatures. It is the intention of the Constitution-makers that those bodies alone must exercise this law-making power in which this power is vested. But in the twentieth Century today these legislative bodies cannot give that quality and quantity of laws, which are required for the efficient functioning of a modern intensive form of government. Therefore, the delegation of law-making power to the administration is a compulsive necessity. When any administrative authority exercises the law-making power delegated to it by the legislature, it is known as the rule-making power delegated to it by the legislature, it is known as the rule-making action of the administration or quasi-legislative action and commonly known as delegated legislation.

ii)Rule-decision action or quasi-judicial action - Today the bulk of the decisions which affect a private individual come not from courts but from administrative agencies exercising ad judicatory powers. The reason seems to be that since administrative decision-making is also a by-product of the intensive form of government, the traditional judicial system cannot give to the people that quantity of justice, which is required in a welfare State. Administrative decision-making may be defined, as a power to perform acts administrative in character, but requiring incidentally some characteristics of judicial traditions

iii)Rule-application action or administrative action - Though the distinction between quasi-judicial and administrative action has become blurred, yet it does not mean that there is no distinction between the two. If two persons are wearing a similar coat, it does not mean that there is no difference between them. The difference between quasi-judicial and administrative action may not be of much practical consequence today but it may still be relevant in determining the measure of natural justice applicable in a given situation. In A.K. Kraipak v. Union of India, the Court was of the view that in order to determine whether the action of the administrative authority is quasi-judicial or administrative, one has to see the nature of power conferred, to whom power is given, the framework within which power is conferred.

A provision in a statute which gives an express power to the Executive to amend or repeal any existing law is described in England as Henry viii Clause because the King came to exercise power to repeal Parliamentary laws. The said clause has fallen into disuse in England, but in India some traces of it are found here and there, for example, Article 372 of the Constitution authorizes the president of India to adopt pro Constitutional laws, and if necessary, to make such adaptations and modifications, (whether by way of repeal or amendment) so as to bring them in accord with the provisions of the Constitution. The State Reorganization Act, 1956 and some other Acts similar thereto also contain such a provision. So long as the modification of a provision of statute by the Executive is innocuous and immaterial and does not effect any essential change in the matter.

In W. B. Electricity Board V. Ghosh, the Regulation of removal of permanent employee with 3 months notice or pay in lieu thereof was held arbitrary & void, such a Henry VIII clause has no place

Principles of Natural Justice

The use of natural law ideas in the development of English law revolves around two problems: the idea of the supremacy of law, and, in particular, the struggle between common law judges and parliament for legislative supremacy on one hand, and the introduction of equitable considerations of 'Justice between man and man' on the other. The first ended in a clear victory for parliamentary supremacy and the defeat of higher law ideas; the latter, after a long period of comparative stagnation, is again a factor of considerable influence in the development of the law. A number of cases are evidenced with the beginning of seventeenth century wherein a statute was declared void and not binding for not being inconformity with the principles of Natural Justice.[13]

It was held in, Maneka Gandhi case that 'Natural justice is a great humanizing principle intended to invest law with fairness and to secure justice and ever the year it has grown into a widely pervasive rule affecting large areas of administrative action. Thus the soul of natural justice is fair play in action and that is why it has received the widest recognition throughout the democratic world. In the United States, the right to  an administrative bearing is regarded as essential requirement of fundamental fairness and in England too it has been held that fair play in action demands that before any prejudicial or adverse action is taken against a person he must be given an opportunity to be heard.'

Separation of Powers

In England:

According to Garner, there is 'no sharing-out' of power in England and as such 'Separation of powers' has no place in its strict sense. There are in England the three Authorities : Parliament, Executive and the Judiciary. But, there is no exclusive province to any specific authority, e.g. The Lord Chancellor, is the head of the Judiciary, chairman of the Upper House, and a prominent member of the Cabinet (though not necessarily). The court exercises legislative powers when it is making the rules of procedure. Ministers make the subordinate legislation and also exercise quasi-Judicial powers. The House of Commons has the power to investigate and punish for breaches of the privileges of the House. Hence, the theory has no direct application in England.[14]

In India:

The Constitution has vested the Executive power in the president (or the Governor). There is no such vesting in the legislature or the Executive. Art. 51 enjoins separation of the Judiciary from the Executive. The supreme court in re Delhi Law Act case" opined that the essence of modern separation of powers was found in the concept of constitutional limitations and trust. e.g. (i) Ordinance making power of the president (Act 123), (ii) Judiciary making its own Rules of procedure (iii) A Minister sitting as chairman of a Board to hear petitions. (iv) Delegations of legislative power to subordinate law making bodies etc. In Ram Jawaya V. St. of Punjab the supreme court held that no organ of the state should exercise functions that essentially belong to the other In Keshavananda Bharathi's case the court held that separation of powers was part of the basic structure of constitution & even under Act 368, it cannot be amended. Thus Parliament should respect & preserve the courts: Courts should not enter into political problems : such mutual checks and balances have become the core of separation of powers in modern constitution. The sum & substance is that the essential functions of the legislature. Executive, and the Judiciary should not be exercised by the others.

[1] http://persmin.gov.in/otraining/UNDPProject/undp_modules/Administrative%20Law%20N%20DLM.pdf
[2] http://14.139.60.114:8080/jspui/bitstream/123456789/738/15/Administrative%20Law.pdf
[3] Parpworth Neil, 'Constitutional & Administrative Law', Oxford University Press United Kingdom, 2012, pp 18,19
[4] https://www.lawctopus.com/academike/separation-of-powers-a-comparative-analysis-of-the-doctrine-india-united-states-of-america-and-england/
[5] http://persmin.gov.in/otraining/UNDPProject/undp_modules/Administrative%20Law%20N%20DLM.pdf
[6] http://www.lse.ac.uk/law/working-paper-series/2007-08/WPS12-2007PooleN2.pdf
[7] The view of Dicey, quoted by Garner in his Book on 'Administrative Law
[8] View of Dicey, quoted by Garner in his book on Administrative Law, p.11
[9] http://www.legalserviceindia.com/article/l457-Rule-of-Law-in-India-&-UK.html
[10]Journal of the Indian law Institute, 1958-59, pp. 31-32
[11] AIR 1967 SC 1427
[12] AIR 1994 SC 268
[13] http://persmin.gov.in/otraining/UNDPProject/undp_modules/Administrative%20Law%20N%20DLM.pdf
[14] http://www.msrlawbooks.com/file/ADMINISTRATIVE_LAW_FF.pdf

 

Rishub 
on 27 October 2017
Published in Constitutional Law
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