Module 1 - Introduction to

Administrative Law
 • Political Gospel – Lassiez Faire
• Police State  Social Welfare State.
• Five Functions of a Social Welfare

Intro a.
b.
State –
Protector
Regulator
c. Provider
d. Entrepreneur
e. Arbiter
What is the
implication • Increased State Activism.

of the • Usurping of More Power.

• Increased responsibility within all
same? the three organs of the Govt.
Hegemony of • Executive cum Administrative Organ.
• Delegated Legislation.

the Executive – • Quasi-Judicial Bodies.

• Discretionary Powers.
The Mini State • Regulatory Functions.
 Why are • Socio-Economic Problems can be
granting all tackled on ground.
• Flexibility and Experimentation.
these powers
• Preventative in Nature.
imperative?
• 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,
reasonable, 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.

Themes
 Describing Administrative Law.
How is it different ?

• 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.
• Primarily concerns itself with official actions.
• Procedure by which an official action is reached.
• Control- Mechanism – Review process.
• “Easy access to justice”
• Right to know (RTI).
 STATE SOV. STATE RESPONSIBILITY
Political • Restricted state action • Problems of urban
Reform • free trade poverty, concentration of
economic power, etc.
• individual responsibility.
• State Activism
• State authority to promote
• Collectivism.
individual liberty.
• Secure a “rule of law”

Classical vs. New

Liberalism
 Classic Liberalism
• Liberty – less state
intervention.
• Equality – everyone is
equal in the eyes of the
law.

New Liberalism
• Liberty – Can only be
achieved once basic needs
have been met.
Philosophical Reform - • Equality – States
STATE  INDIVIDUAL responsibility to achieve
substantive equality.
What about • AV Dicey
• Established Legal Philosophy
• Leon Duiguit
• Functionalist style of Public Law –
Law? • Consti Law are transcendent
standards against which social
dogma.
• Transformation of State =
and political changes are Transformation of Law.
evaluated (top-down approach).
• Consti Law – must respond to social
Classic vs. • Lawyers' ought to protect the
fundamental values.
change. (bottom-up)

New
• Lawyers' ought to see how the law is
• Subjective Rights – functional to society.

Liberalism state sov. > natural right of an

individual.
• Objective Law – Individual Rights >
right to the state.
• Sovereign right of the state to • State – Service Provider. Sov. power
command. to perform functions.
• Legislative Power is sacrosanct. • Legislative Power can be delegated.
• Redressal Mechanism – against any
abuse of power.
 • ‘Accountability, Participation and
rights’ do not possess the same
meaning.
Models of • Changes depending on the type
Administrativ and nature of society.
e Law • Legislature – Courts  both
important in determining the
nature and scope of administrative
law.
 • AV Dicey
• Parliamentary Democracy/Monopoly.
• Omnicompetent.
• Legislature –completely controls the actions of the
Executive (Cabinet).

Unitary •
•
Principle Doctrinal Barrier – Rule of Law.
House of Commons – self - correcting
Democracy • Judicial Intervention – Ultra Vires Principles. Police
the boundaries  Judicial Review.
• What is the implication of this? – Complex case
repository – similar case in India.
• Private rights only – contract or torts.
• Critique of the ultra vires principle.
 • More Prevalent – Modern Welfare State.
• Imposition of certain standards of legality –
courts are not simply just imposing
legislative will – Inclusion of principles as
well.
Rights Based • Judicial Review – three-fold -
1. Protection of Fundamental Rights.
Approach 2. Protection of FR + articulation of
principles of good administration.
3. Rights based view of law and adjudication.
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).
 “denoting that portion of a nation’s legal system
which determines the legal status and liabilities
of all State officials, which defines the rights and
liabilities of private individuals in their dealings
Describing - with public officials and which specifies the
procedure by which those rights and liabilities are
Administrative enforced.”
Law in the UK. - AV Dicey

“Law relating to the Administration. It determines

the organization, power and duties of
administrative agencies.”
- Sir Ivor Jennings.
 • 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.

History in • 1915 - Dicey changed his tune. Conceded to the fact that
some elements of droit had entered the law in England.
the UK • 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.
• Legislature  Parliament. 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.
c. Judge Made Constitution. – judicial decisions in concrete cases.
• MAJOR PITFALL.
 “Administrative Law is the law concerning the
powers and procedure of administrative
Describing- agencies, including the law governing judicial
Administrative review of administrative action.”
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 – Administration.

the US • 1946 – Administrative Procedure Act – provisions relating to

judicial control over administrative action.
STRUCTURE
• Federal Republic  National or Federal – State – Local
• Presidential Form of Government.
• Separation of Powers between the executive, legislation and judicial branches.
• Legislature – Congress.
• 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
Indian administration; the limits of their powers and
functions; the methods by which their powers
Model are controlled including the legal remedies
available to a person against them which his
rights are infringed by their operation.”
- M.P. Jain.
 • Maurya and Guptas  Dharma
• British Rule in India  Significant increase
History in in government powers.
the India • 20th Century  Admin Law became a live
subject.
 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, rule of law and bicameral
from the UK.
• Directive Principles of State Policy from Ireland.

Structure in • Fundamental rights, judicial independence and functions

of the president from the US.
India • Union list and state list from Canada.
• Concurrent list and freedom of trade from Australia.
• Fundamental duties from the 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 are subordinate to the
Constitution.
Rule of Law b. Equality before law - “King can do not wrong”
does not apply.
under Indian c. Judge-made Constitution - duty of the role to
Constitution protect the rule of law.
society’s need vs. an individual’s personal
liberty.
• Is individual liberty really protected by the Dicean
Rule of Law?
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."
 • 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
Separation of government.
• Montesquieu – The spirit of the law.
Power “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.”
• 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
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.