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Essay on Administrative Law
- Essay on the Definition of Administrative Law
- Essay on the Working of Administrative Law System
- Essay on the Sources of Administrative Law
- Essay on the Scope of Administrative Law
- Essay on the Growth of Administrative Law
- Essay on the Dicey’s View on Administrative Law
Essay # 1. Definition of Administrative Law:
Ivor Jennings. “Administrative law is the law relating to the administration. It determines the organisation, powers and duties of administrative authorities and indicates to the individual remedies for the violation of his rights”.
F. G. Goodnow. Administrative law is “that part of the public law which fixes the organisation and determines the competence of the administrative authorities and indicates to the individual remedies for the violation of his rights”.
W. B. Munro defines it “as a system of jurisprudence which on the one hand relieves public officials from amenability to the ordinary courts for acts performed in their official capacity and on the other hand sets up a special jurisdiction to hold them accountable”.
He further elaborates, “It deals not only with the liability of the state and its subordinate division for injuries done to private individuals or their property but with the rules relating to the validity of administrative decrees, the methods of granting redress when public officials exceed their legal authority, the awarding of damages to private individuals for injuries which result from faults of the public service, the distinction between official and personal acts on the part of public officers and many kindred matters.”
C. F. Strong defines it as “the body of rules which regulates the relationship of the administrative authority towards private citizens and determines the position of state officials, the rights and liabilities of private citizens in their dealings with these officials as representatives of the state and the procedure by which these rights and liabilities are enforced.”
Hart “Broadly conceived administrative law includes that is made by as well as law that controls the administrative authorities of a government”.
Robson “Administrative law should be regarded as the law relating to Public Administration, in the same way as commercial law consists of the law relating to commerce or land law”.
Garner “Administrative law consists of those rules which are recognized by the courts as law and which relate to and regulate the administration of government”.
The Supreme Court has given an exhaustive definition of Administrative Law. In one of its judgments (GOC in chief vs. Subhash Chandra A.I.R., 1988 Sc 876) it observed 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.”
An analysis of the above views reveals that the system of administrative law displays the following features:
(a) It relieves the public officials of the jurisdiction of ordinary courts for their official acts;
(b) A special tribunal is set up to try officials when the latter are sued by private individuals for their wrongful acts;
(c) It deals with rules relating to the validity of administrative decrees;
(d) It distinguishes official acts from personnel acts;
(e) It awards compensation to private individuals for injuries sustained by them at the hands of arbitrary state authorities;
(f) It regulates the relations of administrative authorities towards private citizens;
(g) It determines the competence of administrative authorities;
(h) It lays down the method of granting redress to sufferers;
(i) It determines the positions of the State, the officials, and the rights as well as the liabilities of private citizens;
(j) It also prescribes the procedure for the enforcement of these rights and liabilities.
Essay # 2. Working of Administrative Law System:
In actual practice, the system has proved a great success in France and some of the European countries. Dicey’s contention that the Administrative Law is arbitrary or irresponsible has proved to be utterly fallacious. The French Council of State—the highest administrative tribunal of France—has proved to be palladium of Frenchmen’s liberties. It has established admirable traditions of impartiality.
According to Duguit, the case law worked out by the French Council of State afforded the Frenchmen “almost perfect protection against arbitrary administrative action.” In fact, a private French citizen has been able to get more real redress from these administrative courts than an Englishman gets from ordinary courts.
In the words of Dr. Gamer, “There is no other country in which the rights of the private individuals are so well protected against administrative abuses and the people are so sure of receiving reparation for injuries sustained as in France.”
From economy point of view also, the system of administrative courts has proved to be less expensive and simpler. The decisions in such courts have been more prompt as vexatious rules of evidence are inapplicable.
The system has also proved more efficient, as these courts consist of expert administrative officials who understand the exigencies of service. Hence, their judgments are also in the nature of expert decisions. On the contrary, an ordinary court manned by an ordinary judge, having no administrative qualifications, would be unaware of administrative technicalities. Hence, he would fail to arrive at correct decisions.
As Administrative Law is not certified, it retains flexibility and adaptability. The administrative courts are not bound by precedents. They are at liberty to break away from a previous ruling in the light of new facts and experience.
Ogg and Zinc correctly hold, “Certainly, it protects public officials against vexatious and abused obstacles as are often interposed by English and American courts on grounds of mere technicality…gives them greater, assurance and independence in making decisions and enforcing law.”
Keeping in view these facts, the Frenchmen and the nationals of the other European countries rightly claim that their system is far better than the system of the Rule of Law which prevails in the Anglo-Saxon countries.
The critics in England and America have also softened down their attitude towards the French system of Administrative Law. We discern definite tendencies in these countries not only towards a proper appreciation of Administrative Law but also towards the use of agencies having the essential characteristics of administrative courts.
It is being increasingly realized that the Administrative Law is an answer to the ever- increasing needs of the present-day changing society which demand to a greater degree a progressive attitude and an adaptation of policies to meet different complex situations. Administrators are not expected to play only a negative role.
They have to play a positive role of formulating policy to develop administrative techniques and to work out new methods of adjusting controversies, to check and modify their standards in the ordinary frictions of everyday life and to adapt their decisions and attitudes accordingly.
Haives has rightly pointed out, “Along numerous lines constructive planning and social engineering are absolute necessities, if modern society is to be able to live in peace, health and even moderately workable social adjustments. Through administrative procedure alone are such planning and engineering practicable.”
Essay # 3. Sources of Administrative Law:
As already stated, Administrative Law comprises a large number of statutes, charters, rules, regulations and procedures as also those resolutions, orders, decision, etc., which are meant for running smooth administration. In reality, administration is both a child and parent of Administrative Law. There are rules and regulations which govern it and there are others by which it is ruled.
The chief sources of Administrative Law are:
(a) The constitution of the country,
(b) The statutes and the resolutions passed by the legislature of a country,
(c) Charters, Local Body Acts granted and enacted by the legislature,
(d) Ordinances, rules, regulations, resolutions, orders, directions and decisions, etc., issued by the administrative authorities
(e) Customs and conventions,
(f) Judicial decisions of the courts.
Essay # 4. Scope of Administrative Law:
In its wider sense, Administrative Law covers the whole of public administration. In reality, in continental countries, Public Administration is studied under the name of Administrative Law.
An American Committee on Public Administration of the Social Research Council (1938) stated the following outlines of the scope of administrative law:
(a) Problems of Public personnel,
(b) Problems of Financial Administration,
(c) Legal conditions in administrative discretion,
(d) Administrative law and administrative courts,
(e) Administrative regulation,
(f) Administrative examination,
(g) Government contracts,
(h) Claims against Government,
(i) Remedies against administrative action,
(j) Law relating to the status and recognition of professional association,
(k) Legal rules as applicable to the action of plural- headed administrative bodies.
James Hart refers to two components of Administrative Law:
(a) The law of internal administration which expounds the nature of public office or elucidates official relation.
It comprises such topics as legal qualifications for office, legal disqualifications for officers, legal aspects of appointment, tenure and conditions of services, legal aspects of the hierarchical form of departmental organisation, the legal relation of administrative superior to the subordinate and the legal relation between the power of removal and of administrative management.
(b) The law of external administration comprises:
(i) Powers and duties of administrative authorities related directly to private interests;
(ii) The scope and limits of such power;
(iii) Sanctions attached to official decisions;
(iv) The remedies against official action’ and nature of Administrative Law.
Essay # 5. Growth of Administrative Law:
The question arises why Administrative Law had such a phenomenal growth? Reasons are not far to seek.
i. Impact of Urbanization and Industrialization:
Due to the impact of fast urbanization and rapid industrialization, the philosophy of Individualism which was prevalent in the 18th and the 19th centuries suffered an eclipse. The old ‘laissez faire’ doctrine of state functions could be tolerated so long as even distribution of means of production and economic power among the masses persisted.
In the course of time, the Industrial Revolution led to a concentration of production in the hands of a comparatively small number of capital owners. This resulted in the abject helplessness and virtual starvation of the working masses who were given by the industrialists only a pittance which could hardly sustain them. Urbanization which appeared in the wake of industrial revolution posed another problem.
Housing accommodation got scarce. Water supply was inadequate. Open air and bright sunshine became the privilege of the few. Under such adverse circumstances, the individual lost the capacity of self-help. Free initiative to individuals seemed to be inimical to common good.
An avaricious industrialist could force his workers to work at low subsistence level wages and a greedy landlord could compel his tenants to reside in dilapidated dingy cells.
Thus the state had to appear as the custodian of the welfare of the exploited. This could be possible only through appropriately regulating and restricting the latter’s rights and freedoms. This resulted in the emergence of special types of laws known as Administrative Laws which subordinated the common law rights of personal freedom and private property to the conception of common good.
To procure the latter, it placed necessary limitations on the former. It emphasized the social interest as against the individual’s freedom.
ii. Flexibility of Standards was Need of the Hour:
The Administrative Law does not stand for the enforcement of individual rights. Instead, it stands for the furthering of policies of social improvement. As such, it lays down certain flexible standards to be applied to cases instead of cut and dried legal rules or precepts to be followed.
For example, Administrative Law may require that the railway rate structure should be reasonable, that the drainage system shall be reasonably adequate, that unfair practices shall be disallowed in certain types of trades.
The reasonableness or unreasonableness, fairness or unfairness of a case is not precisely stated but is left to be determined by the adjudicator. Thus substitution of general standards for legal rules makes Administrative Law more flexible than the traditional body of the older law. Such a flexibility of standards is the need of the hour.
iii. Discretion to Public Officials Found Helpful:
The Administrative Law allows the officials discretion and freedom for the efficient management of public services. Though Administrative Law was under the fire of criticism at the hands of critics like Lord Hewart, yet to secure the public interest the modern state has had to “go into business. The modern state is no longer a police state. It has become a welfare state.
Hence it manages the business which was previously the monopoly of a few individuals. This necessitates freedom of action. Hence discretionary powers to the state officials equip them with requisite freedom of action without which the Government is apt to fail in the fulfillment of its newly sprung up functions.
iv. Suitable Standards to Deal with Technical Matters Necessitated:
Matters of a highly technical nature necessitate laying down of certain standards. The interpretation and applicability of these standards to individual cases is entrusted to administrative courts which are composed of suitable subject-matter experts.
The ordinary courts manned by judges having legal acumen can hardly be the best judges of such standards. For instance, the judges of the ordinary courts can hardly comprehend whether railway rate structures or traffic restrictions placed on the use of a bridge to ensure its safety are or are not reasonable or whether a certain practice in the field of insurance is or is not fair.
Interpretation of all these affairs requires their adequate comprehension which is possible if experts and experienced people in railway management, engineering business and other subject-matter are entrusted this job.
v. Experimental Stage:
Regulatory standards suiting new and hitherto undiscovered fields are being discovered by the Administrative Law. Hence, it is said to be in an experimental and dynamic condition. Evidently, the indispensableness of regulatory standards does necessitate dynamism in law which is discernible in Administrative Law alone.
In the words of Frankfurter, “We are dealing with law in the making…Administrative Law is groping; it necessarily is still crude and empirical. It is dealing with new problems calling for new social inventions or fresh adaptation of old experiences…In a field as vast and unruly, we must be wary against premature generalization and merely formal system….”
Essay # 6. Dicey’s View on Administrative Law:
Dicey—a celebrated English writer—in his famous work. Law of the Constitution, identified administrative law, with that part of the French ‘Droit Administratif’ according to which actions by the citizens against officials for wrongful acts committed in their official capacity, are tried, not by ordinary courts of law but by special administrative courts maimed by civil servants.
Since such a system of courts did not exist in England in those days, Dicey described Administrative Law as contrary to the Rule of Law—a cardinal feature of the British Constitution.
He referred to three distinguishing features of Administrative Law, viz.:
(a) The ordinary courts do not have jurisdiction in cases in which the state or state officials in their official capacity constitute a party;
(b) The rights of the states’ officials are determined by a special body of law and rules, which are not applicable to the citizens;
(c) (As an influence from these arrangements) A special protection was accorded to officials in France for wrongful acts done in their official capacity.
Rule of Law vs. Administrative Law:
In contrast to this, Rule of law as prevalent in U.K. has three distinguishing features, namely:
(i) The absolute supremacy of the ordinary law of the land, permitting no arbitrary power of discretion to administrative authorities. Under it no person was punishable till he has actually violated the law of the land as proved before the ordinary court of law;
(ii) Equality before law for both the officials and non-officials;
(iii) The primacy of the rights of the individuals which constitute the source of constitutional law instead of the latter being the source of the former.
President Lowell of the Harvard University also defined Administrative Law as Dicey had done.
Criticism of Dicey’s Views:
Some of the eminent writers like Ivor Jennings, J.H. Morgan, W.A. Robson, F.G. Goodnow do not accept Dicey’s contention. They opine that Dicey’s appraisal of the nature and effects of Droit Administratif in France identifying a particular aspect of it with the concept of administrative law, and his non-acceptance of the existence of Administrative Law did exist in U.K in Dicey’s own time.
Hence he himself contended that “Rule of law is exposed to new peril”. The sporadic growth of administrative courts in U.K. made him say “The old veneration for the Rule of Law has waned.”
No doubt, Administrative Law has not existed in the sense in which it is understood and practised in France and other European countries. However, its existence in U’.K. cannot be denied.
Following are the main points of criticism against Dicey’s interpretation of Administrative Law:
1. No Special Protection to Officers:
Dicey’s contention that Administrative Law accorded special protection to the officials and the state, in their dealings with the citizens and their rights and claims drawn from the official composition of the administrative courts was wrong.
The administrative courts came into existence during the French Revolution under the influence of Montesquieu theory of separation of powers and the practical needs of the situation.
During their process of evolution, these courts developed a jurisprudence which, far from being a menace to the individual liberty, proved its bulwark. Many a time, they gave decisions in favour of the citizens’ claims against the state. In fact through these courts of laws the liability of the state for wrongful acts of its officials was carried farther than in England or U.S.A.
In the latter countries the State did not assume responsibility for the wrongful acts of its employees committed in the course of their official duty. In countries like France, on the other hand, the State owns such a responsibility and the aggrieved citizen enjoys better protection than his counterpart in the Rule of Law countries.
Morgan has correctly contended that Droit Administrative was not to shield the officials but to extend that liability to cases in which he would be immune in the U.K. Indeed the French Council of State—the highest administrative tribunal—has proved to be palladium of Frenchmen’s liberties.
In the words of Duguit, the French Council of State assured the Frenchmen “almost perfect protection against arbitrary administrative action”. Dr. Gamer while referring to France so remarked, “There is no other country in which the rights of the private individuals are so well protected against administrative abuses and the people are so sure of receiving reparation for injuries sustained as in France”.
Comparatively in U.K., the officials were safeguarded by laws like Officials Protection Act 1863, which limited the right of the citizens to sue him for acts done in the course of his duty. No such restrictions on the rights of the State to sue the citizens exist in France.
2. Separate Administrative Courts Existed in U.K.:
Dicey was not quite clear about the nature and effect of rule of law in England. It was wrong to assume that the State and the citizens in U.K. were being governed by the same ordinary law of the land and that the State had no discretionary powers.
Robson is correct in holding that a special body of laws applicable to the activities of administrative authorities always existed in U.K. Such a type of law extended to authorities special rights and bestowed upon them special powers.
The Income Tax Law, for instance, accorded Island Revenue authorities a position different from that of citizens. Likewise, the Postal Department and the local authorities carried on their several activities under special acts which granted them a special legal status to which the ordinary law of torts and contract does not apply in the same way as to private citizens.
The officers in England did enjoy discretionary powers to which Dicey was allergic. For instance, the prerogative powers of the Crown were nothing but discretion and the entire field of governmental activity was carried on within its scope.
3. No Equality before Law:
Dicey’s contention that under Rule of Law, the officials and the private citizens enjoyed equality before law and the former did not possess special privileges is not based on facts. Until the passage of Crown Proceedings Act 1947, the Crown enjoyed immunity from liability in torts. Even after 1947, this liability is incomplete. The Executive still enjoys a number of other privileges before the courts.
4. Rights do not Emanate from Courts:
Dicey’s contention that in Rule of Law countries, individual’s rights hold primacy over the State rights and that constitutional law is the outcome of the rights emanating from the decision of the courts is wrong. Only a minor part of the English Constitutional Law has emanated from the decision of the courts referring to the rights of the individuals.
A vast part of it is the outcome of conventions, common law and statutes passed by the Parliament from time to time.