The most prominent and vital advancement of the modern state is the rapid growth of Administrative law. The growth which took place in the 20th century can be considered as a radical change.[i] The role and the functions of the state have undergone an extreme alteration. There is a multiplication of government functions. The state which is running at present as a progressive democratic state has to make ensure whether the essential needs of the citizens have been satiated by the state.[ii] It as to ensure Social peace and security, control the over production, manufactures and distributes essential commodities, ensures equal pay for equal work it should work on the improvement of slums, health and education of the citizens the modern state takes care of its citizen till their existence inside the state.[iii]
Administrative legislation and system has existed in India since a long time. The English came to India for trade hence, the primary object of British administration was to maximise profit.[iv] As the British gained control over India the efficiency of administration became the basic necessity to fulfil its basic purpose. The executive during this period had superseding powers in the matters of justice.[v]
The institution of Supreme Court in Calcutta ushered in an era of independent judicial administration. Sadly enough it came to an end with the passage of the Act of Settlement, 1781.[vi] After the Battle of Plassy 1757 a centralised administrative system was formed to make laws. Subsequently several regulations were passed to set straight the administrative justice system; one of them being the Cornwallis Code, 1793.[vii] The other one is §108 of Regulation Act 1822 which required administrative agencies to keep a tab of facts, evidence and decision. The court had power to control administrative actions but it provided great respect and attention to the administrative decision. Till the closing stages of British rule the Indian Government was mostly concerned with the primary duties singley.[viii]
Advent of Administrative action in India
The Indian Constitution has adopted and adapted itself to the policy of welfare state. Various provisions of the Constitution such as Article 39 require the state to direct its policy towards adequate means of livelihood.[ix] Article 47 talks about rising of the level of nutrition and standard of living of citizens of India, while articles 32 and 226 confer the power to Supreme Court and High Courts respectively to issue writs.[x] In addition the constitution itself provides for setting up of administrative agencies. Article 315 talks about Public Service Commission in India and article 329 talks about Election Commissions.[xi]
Growth of administrative action
In the case of A.D.M Jabalpur v. Shivkant Shukla[xii] an attempt was made to challenge the administrative order during emergency on the ground that it violates the principle of Rule of Law. Though the contention didn’t succeed but it was clearly established that Rule of Law can be used as a legal concept. In Kesavananda Bharti v. State of Kerala[xiii] the Rule of Law was considered the basic structure of Indian constitution. In Indira Nehru Gandhi v. Raj Narain[xiv] judges held that Article 329A offends the concept of Rule of Law. The Court in case of Som Raj v. State of Haryana[xv] observed that the absence of arbitrary power is the first postulate of Rule of Law.
The contemporary concept of Rule of Law is rather wide. This concept was developed by International Commission of Jurists. It implies that the job of government is to exercise its powers and to create conditions in which the dignity of man as an individual is upheld.[xvi] During the past few years the Supreme Court of India has developed some well founded principles of third world jurisprudence. This can be seen by the extension of the Rule of Law to the underprivileged and the downtrodden, the ignorant and the illiterate who form a significant portion of the population in India.[xvii] This was established by the Supreme Court in response to a letter drawing attention to unjustified and illegal detention of certain prisoners in jail for almost two to three decades in the case of Veena Seth v. State of Bihar[xviii]
Reasons for growth of administrative action[xix]
Changed relations of Authorities and Citizens
It can be seen from the present set up of Administration that relation of the public authorities with the citizens has changed to a huge extent. Citizens earlier were not directly involved with the administration. There was a chasm between the Administrative organs and the citizens. Currently in most of the States there is a democratic process involved with the administration. Citizens now are closely assolated with the state Administration and considered an integral part. In view of these changing relations the basic structure of the legal set up was rearranged, leading to the growth of administrative action.
Origin of welfare state
The concept of welfare state was developed in the 20th century. According to the doctrine the basic objective of the State Administration is to achieve maximum welfare for the masses. All the policies of the state should aim at maximising welfare of the people. This lead to increased functions of the State. Increase in functions of the states created complexities. Therefore it was necessary to develop administrative field to cater to these increased functions.
Shortage of Courts
It’s a well known fact that the Indian judiciary is overburdened with the huge array of pending cases. It will be almost impossible for the courts to solve the ever crowded problems of Administration in addition to the already pending cases. Therefore quasi-judicial and quasi-legislative bodies are given impetus, to reduce the already existing load on the judiciary.
Technical expertise of Administrative organs
Administrative law deals with the everyday needs of the people and the ground realities of the country. They range from the simplest clerical functions to the most technical functions like taxation. This requires technical expertise to ensure that all the functions are done efficiently and that the citizens don’t have any grievances. Administrative action being extremely specialised, having dual nature of legislature and judiciary favours this and helps undertake all administrative functions smoothly
Amalgamation of both judicial and administrative functions
Administrative organs have been created in accordance with the doctrine of separation of powers. The executive, legislature and judiciary function separately even these organs had to coordinate to ensure smooth functioning of Administrative law. However this led to a ruckus. Therefore Administrative action had to be evolved.
Mounting pressure on the Parliament and deficiency of time
The horizon of state activities is expanding with the bulk of legislations rapidly increasing. Therefore, it’s neither pragmatic nor possible for the legislature to devote enough time to discuss everything to the minutest detail. Therefore, the legislature provides the bare skeleton of all rules and regulation and empowers the executive to breathe life into it by filling the requisite details. Also as rightly observed by the ‘Committee on Ministers’ Powers’ that if the legislature won’t delegate its law-making power then it won’t be able to pass the mind and quality that modern public opinion requires.
Parliament cannot foresee all the contingencies while passing an enactment. To rise up to such emergencies, mechanisms are required. A legislative amendment is a slow and cumbersome process. However by way of delegated legislation onto quasi-legislative bodies these situations can be handled expeditiously. This is also the reason why several statutes have removal of difficulty clauses to empower administrative action to take charge.
Delegation of legislation provides the executive room for experimentation. This provides for rapid utilisation of experience, talent and implementation of the changes as and when needed. For instance, in matters of an experiment done with respect to traffic norms will help the administrative authority better understand the actual effect of such norms and work to cater to all the interests of all the stakeholders involved. If the changes made are successfully implemented, they are satisfactory. In case there are problems, the same can be cured immediately
In times of nation-wide emergency, quick action at the behest of the government is required to ensure minimum to no damage to public and public property. The legislature in not equipped with the ability to handle exigencies since it can’t provide effective action in the least possible time. Administrative action is the only convenient and indeed the only possible remedy. Thereby in times of exigencies such as war or famine, the executive is vested with immense powers to swiftly and efficiently deal with such situations. Post World War II era necessitated the need for quick remedial actions, leading to the growth of administrative action.
Complexity of modern administration
The complexity of modern administration and the expansion of the functions of the state to the economic and social sphere have rendered it is necessary to resort to new forms of legislation and to give wide powers to various authorities on suitable occasions
Administration and administrative law has become an all pervading feature of modern life. The spectrum of administration includes in itself:
- To make policy decisions
- To execute and administer law
- To take multiple decisions pertaining to the overlapping regions between legislature and executive and executive and the judiciary
- Varied traditional and non-traditional administrative functions
- Issuing of plethora of rules, regulations, and orders, etc of general nature or otherwise.
Simply put, the reason behind the growing importance of Administrative law is the assumption of very wide powers by the Administrative authorities. This includes legislative and judicial powers which result in bolstering the status of India as a social welfare state.
Since Administrative law is primarily concerned with the control over the exercise of its powers, i.e. to prevent Administrative authorities from power crazed tyrants, administrative action has become subject of growing interest and necessity. Therefore, there has been rapid growth of delegated legislation and growth of both quasi-judicial and quasi-legislative actions. In all it has become an integral part modern day government action and functioning.
Frequently Asked Questions
1. Does arming the administration with more and more powers keep in view the interests of the individual?
In the modern government there is a catena of functions performed by it. Therefore it is expedient to create an alternate authority that can cater to this increased bundle of duties and responsibilities. This will help in efficient working and help protect citizen rights better. This in turn will ensure that citizen rights are taken care of.
2. Are adequate precautions being taken to ensure that the administrative agencies follow in discharging their functions such procedures as are reasonable, consistent with the rule of law, democratic values and natural justice?
Yes several control mechanisms are in action in India to prevent any abuse of power. Parliament has control in that the enabling or parent Act passed by Parliament sets out the framework or parameters within which delegated legislation is made. In India, the question of control on rule-making power engaged the attention of the Parliament. n almost all the Commonwealth countries, the procedure of ‘Laying on the Table’ of the Legislature is followed. It serves two purposes: firstly, it helps in informing the legislature as to what all rules have been made by the executive authorities in exercise of delegated legislation, secondly, it provides a forum to the legislators to question or challenge the rules made or proposed to be made. Moreover there is the provision of judicial review.
3. Have adequate control mechanism been developed so as to ensure that the administrative powers are kept within the bounds of law, and that it would not act as a power drunk creature, but would act only after informing its own mind, weighing carefully the various issues involved and balancing the individual’s interest against the needs of social control?
There are various control mechanisms developed to ensure that administrative bodies don’t act as power drunk creatures. Parliamentary control mechanisms, such as laying; judicial control mechanisms, such as judicial review ensure that administrative actions is exercised within its bounds, by careful balancing of individual, social and state interests.
4. What are the grounds for judicial review of administrative action in India?
The Constitution enshrines in itself the provision for judicial review in order to maintain the Principle of checks and balances. In case any administrative actions goes against the part III of the constitution or is enacted ultra vires or has any other defect or inconsistency, then it is subject to judicial review. The Courts evaluate the constitutionality of the impugned administrative action. In case of inconsistency either it is amended or read down or declared to be void. In case it passes the test of constitutionality, it remains in force.
5. What is the classification of administrative action in India?
There are 3 kinds of administrative actions in India:
- Pure administrative
Edited by Shikhar Shrivastava
Approved & Published – Sakshi Raje
[i] C.K Thakkar, Administrative Law, Introduction, Historical growth and development, p 11
[ii] Law and the constitution (1915) 329
[iii] Law and the constitution (1915) 329
[iv] Administrative Law Text (1959) 1
[v] C.K Thakwani , Lectures on Administrative Law, Introduction, p 14
[vi] C.K Thakwani , Lectures on Administrative Law, Introduction, p 14
[vii] C.K Thakwani , Lectures on Administrative Law, Introduction, p 14
[viii] C.K Thakwani , Lectures on Administrative Law, Introduction, p 14
[ix] Chakravarti, Administrative Law (1970) 166
[x] Chakravarti, Administrative Law(1970) 166
[xi] Chakravarti, Administrative Law(1970) 167
[xii] (1976) 2 SCC 521
[xiii] (1973) 4 SCC 225
[xiv] AIR 1975 SC 2299
[xv] (1990) 2 SCC 653
[xvi] Basu, D.D., Administrative Law (6th Edn., 2004), p. 40.
[xvii] Basu, D.D., Administrative Law (6th Edn., 2004), p. 41.
[xviii] (1982) 2 SCC 583.
[xix] Sathe, S.P., Administrative Law (7th Edn., 2004), p. 50
[xx] Sathe, S.P., Administrative Law (7th Edn., 2004), p. 7