CS EXECUTIVE PROGRAMME – JURISPRUDENCE, INTERPRETATION AND GENERAL LAWS
What is Administrative Law?
A Law is an Instrument that was brought into existence to regulate the most volatile of all, human behavior. Of the basic classification of laws into two namely- Public Law and Private Law, Administrative Law is a branch of Public Law. In general, public laws are laws that deal with the relation between the public and the state.
Administrative Law – by the name itself its reveals that it’s a law relating to public administration. It basically deals with the organizational structure, powers, functions, and responsibilities of the administrative authorities of the state, i.e. the executives and officials of the Government.
Administrative Law was initially a part of Constitutional Laws. Later in the growing need for the welfare state, it was not enough for the state to act limited to its traditional duties such as ensuring internal order and protecting from external threats. To cope with the need for welfare, it takes significant efforts by the state to improve the social and economic conditions of its people. In the pursuit of growth and development, it necessitates undergoing significant changes in the field of health, education, pollution, inequality, etc. These complex challenges can be solved only with an effective administration. S
This has led to the origin and growth of administrative law.
Administrative Law endeavors to provide appropriate methods and techniques to have control over administrative actions. In other words, it deals with law governing organizations, procedures, powers, and duties of the organs of public authorities other than the Courts and Legislature.
Administrative Law is a law in the sense. It regulates administrative actions and protects individuals from arbitrary and unlawful actions of the administrative authorities by safeguarding the personal and property right of individuals.
As far as a democratic country like India, the state has three organs- legislative, executive, and judiciary. Traditionally it vested the roles of, the legislature for making of laws, the executive with the implementation of the laws, and the judiciary to administer justice and settle disputes.
Presently it has become an impossible task for legislature and judiciary to handle the ever-growing need for administration only by way of legal enactments or judiciary, which seems to be an inadequate resource. This led to an all-pervasive presence of administrative law for the state.
The purpose of a separate branch as Administrative Law is to establish and maintain the rule of law in the country/state. Its primary function is to emphasis that the administrative authorities are functioning in accordance with the law and at the same time the principles of justice, equity, and good conscious are safeguarded. It also ensures to provide appropriate remedy or relief to the aggrieved individuals.
The whole purpose of bestowing the administration with substantial powers is to ensure a better living environment for the people. Some of the vital purposes the administrative law is laid upon are as follows:
i. Ensuring public good by the maintenance of balance between effective functioning of administration and protection of individual liberty
ii. Protecting, promoting, and uplifting the rule of law
iii. Decentralization of powers and equitable distribution of resources
iv. Subjecting the administrative actions to judicial control
The goal of administrative law is to ensure that the individual at the receiving end of the state’s administrative functions is not aggrieved and if so aggrieved can get it redressed. The study of administrative law is very helpful to the individuals and the society as it protects the individuals from the arbitrary and unlawful actions of the administrative authorities in a nutshell.
Sources of Administrative Laws
Administrative Law is not a well-defined or codified branch of law. It has evolved from the verge of factual situations in the courts. The main sources of administrative law are:
1. Constitutional Law: The Constitution of India is the primary source of administrative law. Article 73 of the Constitution provides that the executive power of the Union shall extend to matters with respect to which the Parliament has the power to make laws. It makes various provisions for powers and functions of the administrative authorities and also makes provisions to controls the powers conferred on the administrative authorities.
Apparently, Article 323-B envisages appropriate legislature may by law, provide for adjudication or trial by the tribunals, public sector and government liability which are important aspects of administrative law.
2. Statutes and Delegated Legislation: Statues and Acts passed by the central and state legislatures and delegated legislation to constitute a source of administrative law. These legislations list the responsibilities of the administration, limit their power in certain respects, and provide for grievance redressal mechanism for the people affected by the administrative action.
3. Ordinance, Administrative Directions, Notifications & Circulars: The administrative authorities are conferred powers and functions by the Ordinances made by the President or the Governor of the State. When the Legislatures are not in session, Article 123 empowers President to promulgate the ordinance at Central, and Article 213 empowers the Governor of the State to promulgate the ordinance at State Level. Administrative directions, notifications, and circulars are issued by the executive in the exercise of the power granted under various Acts.
4. Judicial Precedents or Case Law: In India, the Constitution is the legislation and the Supreme Court is vested with the authority to interpret it. Precedent means the ration of a judicial decision. The decisions of the judges inferred after interpretation of laws are also considered to be an important source of administrative law. The judicial precedents have substantially contributed in the development of law according to the changed conditions and needs of the society.
In India, the existence and the acceleration of the development of administrative law mainly depend upon the judicial pronouncements on the various issues concerning the administrative laws. The courts through their various decisions on the exercise of power by the administration have interpreted the liability of the government in case of breach of contract or tortuous acts of Government servants and have laid down guidelines for their future conduct.
5. Reports of Committees, Commissions, and other power control techniques: The reports of Committees and various Commissions have played a major role in the development of administrative law. In India, Reports of Law Commissions and Parliament’s Committees on subordinate legislation have been vital contributions.
The accelerated growth of the administrative process has led to the increased governance requirement and inference of governments in administration to a larger extent. Whereinto suit the needs of the increased powers of the state suitable tools and techniques that supplement the existing judicial institutions are needed. This need for new tools and techniques paved the way for the establishment of new institutions like Ombudsman, Lokayukta, Lok Pal, Central Vigilance Mechanism, etc.
Principles of Natural Justice
The term Natural Justice involves a procedural requirement of fairness. The principles of natural justice are not established rules and are not codified. They are judge-made rules. A fair exercise of the power of administration is possible only when the power is used according to the fair procedure. The Courts have always insisted that administrative authorities must follow the norms of minimum fair procedure exercising their powers and discharging in their functions.
Ideally it recognizes two major principles, namely:
i. Rule against bias – no man shall be a judge in his own cause
ii. Rule of fair hearing – hearing the other side
Liability of the State or Government
The Constitution of India allows the central and the state governments to enter into contracts. Article 298 of the Constitution confers the executive power on the Central and State Governments to the carry on trade and business by entering into contracts like an individual.
Article 299 deals with Contractual Liability, According to the provisions laid in the Constitution, a contract with the Central or State Government will be valid and binding only if the following conditions are followed:
i. The contract with the Government must be made in the name of the President or the Governor, as the case may be.
ii. The contract must be executed on behalf of the President or the Governor, meaning which a contract will be valid only when it is in writing.
iii. A person duly authorized by the President or the Governor, must execute the contract.
However, neither the President not the Governor including any person executing on behalf of them shall be personally liable in respect of any contract or assurance made under this provisions.
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Article 300 deals with Tortious Liability of the State, which speaks about the Suits and Proceedings. It deals with the legal status of the Central or State Governments to sue and be sued in respect of the torts (civil wrong) committed by its servants while discharging their duties on behalf of the respective Central or Government.
At the outset, the administrative law extends its various functions such as-
i. Determining who are the administrative authority
ii. Acting as control over the unlawful exercise of administrative power
iii. Facilitating fair administrative practice
iv. Emphasizes bringing accountability and transparency
v. Providing a remedy for grievances arising out to actions of administrative authorities
It would be appropriate to mention that the most significant and phenomenal development of the modern era is backed up by the development and effective functioning of administrative laws.
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