Law and You > Administrative Law > Sources of Administrative Law
In this article, we shall study different sources of administrative law. Different sources of administrative law are as follows
Judicial Decisions:
Administrative law is uncodified law of India. It is unwritten and mostly judge-made. It grown gradually step by step.
Stare decisis is a Latin term, that means “to stand by decided matters”. It is an abbreviation of the Latin phrase “stare decisis et non quieta movere” which means “to stand by decisions and not to disturb settled matters”.
The doctrine of precedent (stare decisis) lays down that the court is to follow judicial decisions in earlier cases, when the same questions or points are raised before it in subsequent matters. The term case law refers to legal rules announced in opinions written by appellate judges when deciding appellate cases before them. Judicial decisions reflect the court’s interpretation of constitution, statutes, common law, or administrative regulations. This interpretation, controls how the law will be enforced and applied in the future. Administrative actions are bound by precedent. The Government of India Act, 1935 expressly made the decisions of the Federal court and the Privy Council binding on all Courts in British India and thus gave statutory recognition to the doctrine of stare decisis.
Article 141 of the Constitution of India makes the ‘law declared’ by the Supreme Court binding on all courts within the territory in India. The Expression ‘law declared’ implies the law creating role of the Supreme Court. The Supreme Court is not bound by its own decisions.
In Bengal Immunity Co. v. State of Bihar the court observed that there is nothing in the Indian constitution that prevent the Supreme Court from departing from its own previous decision if it is convinced of its error and baneful effect on public interest. In so far as high court are concerned, the decisions of a High Court are binding on all subordinate courts within the jurisdiction of High Court.
Administrative authorities perform executory, quasi-legislative, and quasi-judicial functions. Whenever courts have faced with new and unique situations, the courts have provided pragmatic solutions to complex problems of administrative law. The function of courts is two-fold, regulative and formative. The rules laid for controlling the actions of administration by various devices namely, reasoned decisions, quasi-judicial function, rules of natural justice, for instance, rule of hearing and rule against bias have been developed. The new principles laid down form guidelines for the future course of action. Numerous administrative tribunals have been set up in India and there is no uniform procedure prescribed in them. It often results into lack of uniformity, confusion, and conflicting decisions.
Statutes:
Statute is the principal source of administrative power. Under the Constitution, law-making power has been given to the leislature. The term statutes include Act of legislature and delegated legislation under the Act. Administrative authorities are given powers by statutes. All the statutes by the legislation must be in accordance with the constitutional provisions and all the powers of administrative authorities must to statutory patterns. In England as well in the United States, a good deal of legislation has been enacted to provide for administrative procedures, composition and procedures of tribunals, liability of state and its bureaucracy and for strengthening the control on the exercise of administrative powers. In India, statutory law in the field of administration is absent. There is need of codification of vital part of administrative law.
The Constitution:
India has a lengthiest and written Constitution which is the supreme law of the land. In India the Constitution is considered to be Supreme. All the statutes by the legislation must be in accordance with the constitutional provisions and all the powers of administrative authorities must to statutory patterns. The Constitution also provides an elaborate control mechanism. Constitution also lays down the administrative and legislative powers of the Union and the States. It also empowers the courts to adjudicate on the constitutional validity of all legislative and administrative action in both the Union and the States. All the legislative actions of the administration have been expressly brought within the purview of Article 13 of the Constitution. All administrative action must also confirm to such rules and regulations, the parent Act and also the Constitution.
Article 32, 226, and 227 of the Constitution give the courts ample power to examine and exercise judicial control over administrative action, function, decision, discretion, and legislation.
Similarly the Constitution also contains provisions relating to Union Public Service Commission and State Public Service Commissions and provides safeguards for removal of government servants.
Committee Reports:
Reports submitted by various committees can also be considered as a good source of administrative law. In India, there is Lok Sabha Committee on Subordinate Legislation, and Rajya Sabha Committee on Subordinate Legislation. These committees were established to scrutinize and closely examine the delegated legislation made by the Executive. A parliamentary control is exercised over delegated legislation through these committees in an effective way. Law Commission has gone into the question of grassroots tribunals, which will have public participation.
In England Frank’s Committee Report on Tribunals and Enquiry has played significant role in improving the working of administrative tribunals in England.
Rules, Regulations, etc.:
Rules and regulations, Departmental Circulars, Manuals, Government Orders, Schemes and the like made by government departments can also be regarded as a fruitful source of administrative law.
Ordinances:
Article 123 of the Constitution of India deals with the legislative powers of the President empowers the President to promulgate ordinances on the advice of Council of Ministers when the Parliament is not in session. Similar power is conferred on the Governor of a state under Article 213 when the state legislature is not in session. The provision of promulgating ordinances have provided flexibility to the State. The ordinance must get approval of the Houses within prescribed period. Thus, the power is subjected to legislative control.
Administrative Practice:
Administrative practice is practice that is followed by various administrative authorities and agencies. It also serves as important source of administrative law. “Administrative Direction” is the most effective technique for achieving some kind of uniformity in the exercise of administrative discretion and determination of policy and its uniform application. These instructions also serve the purpose of providing desired flexibility to the administration bypassing the technicalities involved in rule-making process.
Rules of Natural Justice:
The principle of natural justice constitutes one of the most important concepts of administrative law. It is a legal philosophy used in some jurisdictions in the determination of just, or fair, processes in legal proceedings. It involves the procedural requirements of fairness. These rules which have been laid down by the Courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice. The rules of natural justice do not supplant the law of the land but only supplement it. There are three principles in the natural justice.
- Nemo judex in causa sua means one cannot be a judge in his own cause also known as the rule against bias.
- Audi alteram partem means hear the other side/party or an opportunity for a fair hearing must be given before passing any order.
- Speaking Order or Reasoned Order
These principles are discussed in detail in next few articles.
The Maxim of Equity (Ubi jus ibi remedium):
Ubi jus ibi remedium means whenever there is a legal right there is a remedy. This maxim can only be used when the law does not provide either any relief or sufficient relief. The court of law cannot reject an application seeking justice for violation of right, simply because there is no formal recognition or provision of remedy. It is the duty of the court of law to find a remedy in such case.
Under Article 32 of the Constitution a person can approach the Supreme Court and under Article 226 of the Constitution a person can approach a High Court to seek redressal against abusive administrative action. Under these article of the constitution, the Courts have writ jurisdiction.
Writs jurisdiction and types of writs are discussed in detail in next few articles.
In the study of development of administrative law, the study of sources of administrative law is important.
Difference Between English and Indian Administrative Law:
Content wise there is not much difference between the two laws.
In England the Parliament is Supreme. Hence English courts have no power to declare any law passed by Parliament as unconstitutional. Thus judicial review in England, has limited scope.
In India the Constitution is supreme. If any law passed by parliament is unconstitutional it can be challenged in the court. Thus administrative action is subjected to judicial review.
In administrative action can be challenged before a court in many cases. Some of them are elaborated below:
- If it is shown that such administrative action is not in accordance with the Rules and Regulations framed under the Act in question, the same can be set aside by a competent court.
- Even if such action is in conformity with such Rules and Regulations, but if such Rules and Regulations are themselves not in accordance with the parent Act, they may be declared to be void. Hence action taken under such Rules and Regulations becomes void.
- Even if such action is in conformity with such Rules and Regulations, but and such Rules and Regulations are themselves are in accordance with the parent Act. But the Act itself is unconstitutional, then the Act itself will be declared unconstitutional and struck down. Hence action taken under such Rules and Regulations becomes void.
Constitutional Law and Administrative Law:
Administrative law deals with the organizations, powers, functions, and duties of administrative authorities, on the other hand, constitutional law deals with the general principles relating to the organization and powers of various organs of the state and the relationship of these organs with the individuals. According to Hood Philips “Constitutional law is concerned with the organisation and function of government at rest while administrative law is concerned with that organisation and those functions in motion.”
According to Keith, “It is logically impossible to distinguish administrative law from constitutional law, and all attempts to do so are artificial.” This confusion can be attributed to unwritten Constitution in England.
Indian Constitution deals with the composition and powers of legislature, executive and judiciary. Administrative law deals with pubic departments, local authorities, statutory bodies and the like. Constitutional law deals with the constitutional status of civil servants, while administrative law deals with the working of different government departments. Due to written constitution and the Constitution being considered as supreme, the administrative action can be viewed under the light of the Constitution.