Administrative Law - Lecture notes 1 PDF

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AL-AMEEN COLLEGE OF LAWMODEL ANSWER – 2015ADMINISTRATIVE LAW2 ND SEMESTER 3 YEARS LL AND 6TH SEMESTER 5 YEARS B.A.LL COURSEDURATION:- 3 hours MAX MARKS:INSTRUCTIONS FOR THE CANDIDATES Answer Q.No and any five of the remaining questions Q.No carries 20 marks and the remaining questions carry 16 marks...

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AL-AMEEN COLLEGE OF LAW MODEL ANSWER – 2015 ADMINISTRATIVE LAW 2ND SEMESTER 3 YEARS LL.B AND 6TH SEMESTER 5 YEARS B.A.LL.B COURSE

DURATION:- 3 hours

MAX MARKS:100

INSTRUCTIONS FOR THE CANDIDATES 1. Answer Q.No.9 and any five of the remaining questions 2. Q.No.9 carries 20 marks and the remaining questions carry 16 marks each. 3. Answers should be written in English or in Kannada completely

Q.No.1.Define Administrative law. administrative law.

4X16=64 Explain the nature and scope of

INTRODUCTION Administrative law is the most outstanding legal development arising from confrontation with the complex problems of socio-economic justice in the welfare state. The most significant and outstanding phenomenon of the 20 th century has been the establishment of welfare state in democratic countries. It does not however mean that there was no administrative law before the emergence of welfare state. The truth is that administrative law is based on the assumption that there is a politically organized society and from that assumption certain rules relating to the control of administration emerge, which are called administrative law. DEFINITION:IVOR JENNINGS:-

Administrative law is the law relating to the administration. It determines the organisation, powers and duties of the administrative authorities. This is most widely accepted definition.  It does not distinguish administrative law from constitutional law; and  It is a very wide definition.  It does not include the remedies available for the aggrieved person. WADE:Administrative law is the law relating to the control of governmental power’ according to him the primary object of administrative law is to keep powers of the government within their legal bounds so as to protect the citizens against their abuse. The powerful engines of authority must be prevented from running amok. K.C.DAVIS Administrative law is the law concerning the powers and procedures of administrative agencies, including especially the law governing judicial review of administrative action. NATURE AND SCOPE OF ADMINISTRATIVE. Administrative law deals with the powers of the administrative authorities, the manner in which the powers are exercised and the remedies which are available to the aggrieved persons, when those powers are abused by these authorities. The main object of the study of administrative law is to unravel the way in which these administrative authorities could be kept within their limits so that the discretionary powers may not be turned into arbitrary powers. Administrative law is concerned with the operation and control of administration, with emphasis on function rather than on structure. It deals with administrative process and its control. Schwartz divides Administrative Law in three parts. 1. The powers vested in administrative agencies;

2. The requirements imposed by law upon the exercise of those powers and 3. Remedies available against unlawful administrative actions. Now the state is not merely a police state, exercising sovereign functions, but as a progressive democratic state, it seeks to ensure social security and social welfare for the common man, regulates private enterprise, exercises control over the production, manufacture and distribution of essential commodities, starts many enterprises, seeks to achieve equality for all and ensure equal pay for equal work. It improves slums and looks after health and morals of people. It takes all the steps which socio-economic justice demands. All these developments have led to administrative explosion which has widened the scope and ambit of administrative law. The concept of administrative law has assumed great importance. It is a branch of law which has witnessed remarkable advances in the welfare state as it being increasingly developed to control abuse or misuse of governmental power and keep the executives and its various instrumentalities and agencies within the limits within the limits of their power. CONCLUSION Welfare state is an administrative state which exercises public power for achievement of socio-economic purposes and performs numerous functions. Hence it can be stated that the various functions of the states has given the scope for the evolution of administrative law. ----x---Q.No.2. Explain the concept of “Rule of Law” according to A.V.Dicey. RULE OF LAW:The entire basis of Administrative Law is the doctrine of the rule of Law. Sir Edward Coke, Chief Justice was the originator of this concept.

He stated that ‘In a battle against the King, he maintained successfully that the king should be under God and the Law, and he established the Supremacy of the Law against the Executive. Dicey developed this theory of Coke in his classic work “The Law and the Constitution’ published in the year 1885. Meaning :- The term ‘rule of Law’ means the principles of legality which refers to a government based on principles of law and not of men. According to Dicey:- the rule of law is one of the cardinal principles of the English system. He gave three meanings to the doctrine. 1. Supremacy of law; 2. Equality before law and 3. Predominance of legal spirit. 1. Supremacy of Law: Dicey states that rule of law means the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power or wide discretionary power.  It excluded the existence of arbitrariness, of prerogative power or even wide discretionary authority on the part of government.  According to him the English men were ruled by law and law alone. 2. Equality before law: Dicey says that there must be equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts.  In England, he maintained, all persons were subject to one and the same law, and there were no extraordinary tribunals or special courts for officers of the government and other authorities.  He criticized the French legal system of ‘droitadministratiff’.  According to Dicey, exemption of civil servants from the jurisdiction of the ordinary courts of law and providing them with the special tribunals was the negation of equality.

3. Predominance of legal spirit: The general principles of the constitution are the result of judicial decisions of the courts in England.  In many countries rights are guaranteed by a written constitution;  In England it is not so.  Those rights are the result of judicial decisions in concrete cases which have actually arisen between the parties.  The constitution is not the source but consequence of the rights of the individuals.  The rights in a written constitution can be abrogated at any time by amending the constitution. MERITS:DICEY’S THEORY:- has its own advantage and merits. The doctrine of Rule of Law proved to be an effective and powerful weapon in keeping administrative authorities within their limits. It a test to all administrative actions. This doctrine is almost accepted by all legal system as a constitutional safeguard.  The first principle (supremacy of law)- recognizes a cardinal rule of democracy that every government must be subject to law and not law subject to the government.  The second principle (equality before law) it is also important in a democratic polity.  The third principle puts emphasis on the role of judiciary in enforcing individual rights and personal freedoms irrespective of their inclusion in a written constitution. DEMIRITS: The first rule was criticized on the ground that Dicey equated supremacy of Rule of Law with absence of not only arbitrary powers but even of discretionary powers.

 According to him ‘wherever there is discretion, there is room for arbitrariness’ and he failed to distinguish between arbitrary power from discretionary power.  The second principle of Dicey was equally fallacious. He had criticized the legal system of France- droitadministratif.  He stated that the administrative courts of France conferred on government officials special rights, privileges and prerogatives as against private citizens.  But it was not so, the French system in many respects proved to be more effective in controlling abuse of administrative powers than the common law system.  During Dicey’s time, several administrative tribunals had come into existence which adjudicated upon the rights of subjects not according to common law and procedure of Crown’s courts but according to special laws applied to specified groups.  The crown enjoyed immunity under the well-known maxim ‘the king can do no wrong’.  It was therefore not correct to say that there was ‘equality before law’ in strict sense. -----x-----Q.No.3. What is delegated legislation? What are the different controls over delegated legislation?

DEFINITION:Delegated legislation is a legislation made by a body or person other than the sovereign in parliament by virtue of powers conferred by such sovereign under the statute. “when the function of legislation is entrusted to organs other than the legislature by the legislature itself, the legislation made by such organs is called delegated legislation.” According to Jain and Jain, the term ‘delegated legislation’ is used in two senses:

1. Exercise by a subordinate agency of the legislative power delegated to it by the legislature. 2. Subsidiary rules themselves which are made by the subordinate authority in pursuance of the power conferred on it by the legislature. 1. According to the first point, it means that the authority making the legislation is subordinate to the legislature. The legislative powers are exercised by an authority other than the legislature in exercise of the powers delegated or conferred on them by the legislature itself. This is also known as subordinate legislation’, because the powers of the authority which makes it are limited by the statute which conferred the power and consequently, it is valid only insofar as it keeps within those limits. 2. Delegated legislation according to second point means all rules, regulation, bye-laws, orders etc. Ex:- the essential commodities Act, 1955 enumerates certain commodities as essential commodities under the Act. But the list given in the statute is not exhaustive and the central government is empowered to declare any other commodity as essential commodity and to apply the provisions of the Act to it. Ex. Minimum wages Act 1948:- to provide for fixing minimum wages in certain employment. The Act applies to employments mentioned in the schedule. But the central government is empowered to add other employment to the schedule if, in the opinion of the government the Act should apply.

1. 2. 3. 4. 5. 6. 7.

REASONS FOR GROWTH OF DELEGATED LEGISLATION Pressure upon parliamentary time. Technicality:Flexibility:Experimentation:Emergency:Confidential matters:Complexity of modern administration:-

CLASSIFICATION OF DELEGATION LEGISLATION 1. TITLE BASED CLASSIFICATION :2. Nature based classification. CONTROL OVER DELEGATED LEGISLATION Due to the complexities and exigencies of intensive form of government, the institution of delegated legislation has come to stay. Delegation of legislative powers to the executive has to be conceded within the permissible limits. However, there is inherent danger of abuse of the legislative power by the executive authorities. The need, therefore, is that of controlling the delegate in exercising his legislative powers. Therefore, ‘today the question is not whether delegated legislation is desirable or not but it is what controls and safeguards can be introduced so that the power conferred is not misused or misapplied. The control which are exercised over delegated legislation may be divided into three categories. 1. Judicial control 2. Legislative control 3. Procedural control. 1. Judicial control:- judicial control over delegated legislation is exercised by applying two tests, a. Substantive ultra vires and b. Procedural ultra vires. Ultra vires:- means beyond powers. An act which is done in excess of power is ultra vires. When a subordinate legislation goes beyond the scope of authority conferred on the delegate to enact, it is known as substantive ultra vires.

It is a fundamental principle of law that a public authority cannot act outside, the powers and if the authority acts, such act becomes ultra vires and accordingly void. When a subordinate legislation is enacted without complying with the procedural requirements prescribed by the parent Act or by the general law, it is known as procedural ultra vires. In case of procedural ultra vires, the court may or may not quash delegated legislation as it depends upon the circumstances whether the procedure is held to be mandatory or directory. Judicial control over delegated legislation is exercised by applying the doctrine of ultra vires in a number of circumstances. 1. Where Parent Act is Ultra vires to the constitution. The constitution prescribes the boundaries within which the legislature can act. If the parent Act or enabling Act is ultra vires to the constitution the rules and regulations made thereunder would also be null and void. The parent act is declared ultra vires to the constitution. If it violates:i. Express constitutional limits. ii. Implied constitutional limits. iii. Constitutional rights. i. Express constitutional limits:Invalidity of the rules and regulations arises if the parent Act is violative of express limits prescribed by the constitution. The legislative powers of the union and the states are distributed in Article 246 of the constitution. It either legislature encroaches upon the exclusive sphere of the other as demarcated in three limits. a. Union list b. State list and c. Concurrent list, its legislation will be ultra vires. ii. Implied constitutional limits. Implied constitutional limits are those which were enunciated in Delhi law Act case.

Legislature cannot delegate essential legislative function to any other agency and if it so delegates the parent Act will be ultra vires the constitution. CASE LAW. HAMDARD DAWAKHANA V. UNION OF INDIA [AIR 1960 SC 554] The court held section 3 of the Drugs and Magic Remedies (objectionable advertisement) Act Ultra vires the constitution because the legislature had not laid down sufficient guidelines for the exercise of administrative discretion in selecting a disease to be included in this list. ST. JOHNS TEACHERS TRAINING INSTITUTE V. REGIONAL DIRECTOR, NATIONAL COUNCIL FOR TEACHERS EDUCATION (AIR 2003 SC 8014) The supreme court has laid down that delegated legislation is based on the assumption that legislative cannot possibly forsee every administrative difficulty that may arise in operation of statute. Delegated legislation is designed to fill those needs and is meant to supplement and not supplant the enabling statute. iii.

Constitutional rights.

No legislature has competence to pass a law violative of the provisions of commerce clause, right to property under Article 300-A or right to life and personal liberty under Article 21. The parent Act may be challenged although the statute is well within the legislative compliance yet violates the provisions of Part III of the constitution by imposing what may be called an unreasonable restrictions on the enjoyment of fundamental rights. Case Law. ChintamanRao V. State of Madhya Pradesh [AIR 1951 SC 118]. The parent Act conferred power on the Deputy commissioner to prohibit the manufacture of bidis notified areas during the agricultural season as fixed by him.

The Deputy commissioner imposed a total ban on the manufacture of bidis. The order passed by the Deputy commissioner was held ultra vires in as much as the Act under which it was made violated the fundamental right to carry on trade, business, profession and occupation guaranteed under Article 19(1)(g) of the constitution of India. In the opinion of the court the order imposed unreasonable restriction on the exercise of fundamental right. II. where delegated legislation is ultra vires the constitution Sometimes it may happen that the parent Act may not be ultra vires the constitution and delegated legislation may be consistent with parent Act, yet the delegated legislation may be held invalid on the ground that it is ultra vires the constitution. NarendraKumar V union of India [AIR 1954 SC 224] There was an Act by named the Essential supplies (temporary powers) Act, 1946. The parent Act was constitutionally valid but clause 3(2) (b) of the act was held ultra vires by the supreme court as it violated Article 19(1) (g) of the constitution of India by imposing unreasonable restrictions on the right to carry on trade and business. The clause 3(1) of the Act provided that no one can carry on business in coal except under a licence. Clause 3(2)(b) was ultra vires Articles 19(1) (g) as it confers arbitrary powers on the executive in granting exemptions. iv.

Arbitrary power is ultra vires the constitution.

In HIMMAT V. COMMISSIONER OF POLICE [AIR 1973 SC 87] Under the Bombay Police Act 1951 : section 33(1) had authorized the commissioner of police to make rules for regulation of conduct and behavior of Assemblies and Processions on or along the streets.

Rule 7:- made that no public meeting will be held without previous permission of the commissioner. The rule was held ultra vires on the ground that it conferred arbitrary powers on the commissioners in granting or refusing permission and as such it imposed unreasonable restriction on the exercise of freedom of speech and expression guaranteed under Article 19(1)(b) of the constitution. iii) Theory of Derivative immunity. The parent Act cannot be challenged before the court because it is protected under Article 31-B of the constitution on account of its placement in the 9 th Schedule, the question is whether the delegated legislation made there under can be challenged. VASANLAL MAGANBHAI V. STATE OF BOMBAY [AIR 1961 SC 4] It was held that if the parent Act is saved under Article 31-B and cannot be challenged, the delegated legislation also cannot be challenged as being violative of any fundamental rights on the ground of derivative protection. PRAG ICE AND OIL MILLS V. UNION OF INDIA [AIR 1978 SC 1296] In this case the constitutional validity of the Mustard oil(price control) order, 1977 was challenged. The parent Act (Essential commodities Act, 1955) was placed in the 9 th schedule and, therefore was protected under Article 31-B. The question before the supreme court was whether the orders and notification (child legislation) issued under the Essential commodities Act, 1955 can be still be challenged as violative of fundamental rights. The supreme court held that even a case where a parent Act cannot be challenged before the court because of protection of Article 31-B of the constitution on account of its placement in the 9 th schedule, the delegated legislation promulgated there under can still be challenged if it violates any provision of the constitution.

In this way the child legislation does not come under the protective umbrella of the 9th schedule III. WHERE THE DELEGATED LEGISLATION IS ULTRA VIRES THE PARENT ACT. Delegated legislation can be challenged on the ground that it is ultra vires the parent Act or enabling statute or any general law. It is accepted principle that the authority of delegated legislation must be exercised within the authority. The delegate cannot make a rule which is not authorized by the parent statute or delegating statute. Delegated legislation or subordinate legislation can be declared valid only if it conforms exactly to the power conferred. Rule is always open to challenge on the ground that it is unauthorized. Case law ADDITIONAL DISTRICT MAGISTRATE [REV] V. SRI RAM (2000) 4 scc 452. In this case the Delhi Land Revenue Act and Delhi Reforms Act did not empower rule-making authority to classify land or to exclude any area from preparation of record of right and annual register. However, rules made under Act in 1962 classified land into six categories and provided that the name of tenure holder or sub-tenure holder occupying land in ‘extended abadi’ and in prescribed six categories of land will not ...