DEVELOPMENT AND EVOLUTION OF ADMINISTRATIVE LAW
Administrative law owes its need and development to the shift in the character and nature of states from being ‘Police states’ into becoming ‘Welfare states’; states that strive to aid and accompany their citizens from the cradle to the grave. The state today is not just confined to the primitive tasks of waging war, acquisition of territory, and handling external or internal aggressions. The governments have evolved from being laisseze-faire to parens patria. It now concerns itself with the internal management of activities performed by its citizens on a day-to-day basis. This requires a dynamic kind of law that can cater to the needs of an ever-changing society. Such a law cannot be administered on root levels by the central government body and thus ‘administrators’ are employed for the task. This results in an almost regular and frequent interaction between these administrators and the general public. Thus, it is necessary to solidify the powers, rights, and obligations of the administrators and also remedies for persons if their right is violated by them. Hence the need for Administrative Law.
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 the 20th century. Napolean Bonaparte overthrew the whole system and established a court system.
Two kinds of courts were established:
Civil and Criminal Courts (Azize & Court of desassation)- for resolving disputes among citizens
Administrative Courts (Counsell D’Etat Court of the perfect)- for resolving matters between administrative authority and citizens
India and UK
In 1885, A.V. Dicey, an English jurist, rejected the whole concept of Administrative Law for the reason that it gave discretionary powers which, according to him, ought to lead to arbitrariness and poison liberty of individual. It was not until the 20th century that administrative law came to be accepted as a separate branch of law.
The concept of Administrative law, however, can be traced back to the ancient India; the Mauryan, Maratha and Gupta empire which had a centralized administrative system with the king as the supreme head. The law since then has evolved in order to be practiced in present nation.
With the arrival of the British in India there was the advent of modern administrative law. Establishment of East India Company increased the powers of government. Many Acts, statutes and Legislation were brought and passed by the British government regulating public safety, health, morality transport and labour relations.
In 1947, when the Crown Proceedings act abolished the principle “the king can do no wrong” establishing Rule of Law, the branch of administrative law saw new horizons. In the light of this and such other developments, thorough study of administrative law began. Learned jurists came to study the law and attempted to define it.
Ivor Jennings in his “The law and the constitution, 1959” defined the term “administrative law”; and, according to him, “Administrative law is the law relating to the administrative authorities”. Jennings has defined Administrative Law as “the law relating to the administration. It determines the organization, powers, and duties of administrative authorities”.
Expansion of Administrative Law
The development of administrative law goes hand-in-hand with the development of the society. Administrative law can more rightly be said to be the sociology of law and not the philosophy of law.
The three main stages led to the expansion of the meaning of the term Administrative law-
- Laissez Faire
- Dogma of Collectivism
- Social-Welfare State
The early 20th century was influenced by the political gospel of laissez-faire, which is based on the following principles:
- Minimum governmental control
- Free enterprise
- Law and order not counted as subjects of state
- Concentration of power in the hands of an individual- the king
The characteristics of ‘concentration of power’ yielded human misery and capitalism widening the gap between the rich and the poor.
Dogma Of Collectivism-
After the miserable phase and failure of laissez-Faire of the police state, the principle of collectivism evolved which encouraged synchronisation of individuals. The state gained more control over the life of individuals and also stood up to take responsibility for his life and liberty.
Social Welfare State-
The Dogma of collectivism gave birth to the being of a social-welfare state which strived to protect and promote its citizens social and economic well-being. A state built on the basis of equal opportunity, equitable distribution of wealth and a responsible as well as answerable state.
Development of Administrative Law in India
Administrative law in India or even word wide is hardly a codified law. Infact it is a judge made law and has developed dynamically through precedents changing according to the needs of the society. The following factors have, along with contributing to the growth of administrative law, shaped the development and evolution of the branch of law by widening its scope and application.
After independence, India adopted the nature of a ‘welfare state’ which further increased the role of the state. The philosophy of the welfare state has been ingrained in the preamble of the Indian constitution and directive principles of state policy. The constitution envisions establishing an egalitarian social order rendering to every citizen, social, economic, and political justice in a social and economic democracy [i].
Along with the preamble, the Part IV is filled with directions for the nation to become a welfare state. Such ad Articles 38, 39A and 46.
Hence, we can say that according to the constitution, India is a welfare state.
Being a welfare state means having increased activities of the government into an individual’s life, often in the form of ‘administration’. Thus, the necessity of Rule of law and provisions for judicial review also increased, and so did the need for administrative laws in order to define the powers of such administrators and ensure prevention of arbitrary/malicious use of power vested in them.
Justice Bhagwati in R. D. Shetty v. International Airport Authority of India , in the obiter dicta has said that, “exercise of discretion is an inseparable part of sound administration and, therefore, the State which is itself a creation of Constitution, cannot shed its limitation at any sphere of state activity.”[ii]
When the legislature, in the pressure of work or any other reason delegates some of its legislative power, it results into delegated legislation. This sort of delegation is often made to the executive or administrators to enable them in resolving issues they face on a day-to-day basis. Delegation of power also comes in handy when quick legislations are required to be made according to the immediate needs that may arise at any time in a country.
The Constitution of India provides for this concept while providing the President, head of executive, the power to pass ordinances during recess of Parliament under Article 123; and President’s power to pass regulations for the purpose of administration of Union Territories under Article 240.
There is apparent delegation of power to State administrators under statutes such as taxation laws, land revenue codes etc.
In light of such instances of delegation of power, it is necessary for the presence of clarity so as to the powers, in this case ‘delegated’ one, of the administrators.
In Re Delhi Law Act[iii] case, the Supreme Court of India lays down three important tests that must be fulfilled for a legislative authority to delegate duties. They are as follows:
- Subject matter of delegation must be within the scope of the legislative authority
- The power of delegation mustn’t negate other instruments created by the legislature (power isn’t ultra vires)
- Doesn’t create another legislative body having the same duties and functions to discharge (no abdication of legislative powers)
Inadequacy of courts
The Indian judiciary has an overburdening weight of pending cases. In addition to being time taking, is also expensive and complex. These factors delay justice and justice delayed is justice denied. To solve this, quasi-judicial bodies are formed and judicial power is delegated to administrators. An Administrative Tribunal, established in the pursuance of Article 323A, is a quasi-judicial body created by a statute to adjudicate upon the questions of administrative matters laid before it.
In India, under Article 72, the President-executive head of the country, has judicial powers to pardon any person convicted in the court of law. Similarly, a district commissioner has judicial powers with regard to revenue matter.
Power to take preventive measures
“Prevention is better than cure”
Global development was accompanied by an alarming rate of increase of crimes. To take care of it, administrative authorities are given power to take preventive measures. The authorities do not have to wait for the wrongdoing to be committed, unlike court procedures, preventive measures can be taken on apprehensions that a disorderly situation may arise.
It is noteworthy that such power is not unlimited and the administrative authority shall be 100% answerable and liable for their actions as it is not out of constitutional or judicial purview.
Article 22 of the constitution grants safeguards against arbitrary arrest and detention.
The police, which is part of the executive, can make preventive arrest as they have the authority to hold anyone they suspect of committing a crime
It is apparent that administrative law is not a new concept. It has been around since ancient times and has seen a developed form in France through its court systems. It was only accepted and studied as a separate branch of law in the 20th century.
With the evolution of countries from police states to becoming welfare states, the government intervention in private lives increased and so, it became the need of the hour to have a wholesome branch of law to deal with it. Today, administrative law is an integral part of the working mechanism of democratic countries such as India.
Footnote:[i] Samantha v. State of Andhra Pradesh, AIR 1997 SC 3297 [ii] 1979 AIR 1628 [iii] 1951 AIR 332, 1951 SCR 747
Author: Kailashika Verma,
B.A. LL.B. II year, Rani Durgavati Vishwavidyalaya, Jabalpur