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Administrative Law Droit Administratif

In the present time in almost in every country irrespective of its political philosophy the administrative process has increased too rapidly that today we are living not in its shade but shadows.
Sir Ivor Jennings defines Administrative Law as the law relating to administration. It determines the organization, powers and the duties of administrative authorities.

It lays entire emphasis on the organization, power and duties to the exclusion of the manner of their exercise. Being a student of law we are not concerned with, how a minister is appointed but only how a minister discharges his functions in relation to an individual or a group. How the minister of housing and rehabilitation is appointed is not the concern of the Administrative Law but when this minister approves a scheme of new town ship which involves the acquisition of houses and lands of persons living in that area questions of Administrative Law arise. Many aspects remain untouched.

Diceys formulation

  1. Firstly the Administrative Law relates to that portion of a national legal system which determines the legal status and liabilities of all state officials.
  2. Secondly, the rights and liabilities of private individuals in their dealing with the public officials.
  3. Thirdly, specifies the procedure by which those rights and liabilities are enforced.

The American approach is significantly different from the early English approach as it recognized Administrative Law as an independent branch of Legal discipline. According to Davis the Administrative Law is a law which concerns the power and procedures of administrative agencies including especially the law governing judicial review of administrative action.
Prof. Upendra Baxi thus lays special stress on the protection of the Little man” from the arbitrary exercise of public power. According to him administrative law is a study of the pathology of power in a developing society”.

In contrast to the system of rule of law in England, France has adopted the system of administrative law. Public Law is divided into two types as administrative law and general law. Dicey defines administrative law as a body of rules for the protection of officials who have committed abuse of power against the citizens”.

Administrative law is that portion of law which regulates the relations of administrative authority towards private citizens i.e.,
  1. Determines the position of the State officials.
  2. The rights and liabilities of private citizens in their dealings with those officials as representatives of the State.
  3. The procedure by which these rights and liabilities are enforced. This has resulted in two parallel systems of Courts-the administrative courts and ordinary courts.

The general or ordinary law and the regular courts are concerned with the administration of justice between citizen and citizen, while the administrative courts apply Special laws, to adjudicate between the citizens and the officials as the representatives of their government. The judges of the administrative courts are senior executive officials. This type of law prevails in France, Italy and Germany.

Features of Administrative law:

  1. It relieves the public officials of the jurisdiction of ordinary courts of their officials.
  2. Special tribunals are set up to try officials for their wrongful acts.
  3. It distinguishes official acts from personal acts.
  4. It regulates the relations of officials towards private citizens.
  5. It lays down the method for granting redress to sufferers.

Merits of Administrative Law

  1. It provides real and quick redress to the private citizens.
  2. Under it, the expenditure incurred by the individual is less.
  3. Judges will be able to give better judgments in general cases as they concentrate on them.

Defects of Administrative Law

  1. It adopts rigid procedures.
  2. It ensures justice only in legal terms but not in moral terms;
  3. It fails to inspire public confidence.
The administrative law has support of the argument that the officials are regarded as the representatives of the State and hence must be given preferential treatment. And, it is supported on the concept of separation of powers as the executive ought to be independent of the judiciary.

The four basic bricks of the foundation of any Administrative Law may be identified as:

  1. The check, abuse or detourment of administrative power.
  2. To ensure citizens an impartial determination of their disputes by officials.
  3. To protect them from unauthorized encroachment on their rights and interests.
  4. To make them those who exercise public power accountable to the people.

Administrative Law is a law but not in the sense of lawyer like property law, contract law. It is a law in the realists sense which includes statute law, administrative rule making precedents, customs, administrative directions etc.

Administrative Law is a branch of public law in contradiction with a private law which deals with the relationship of individuals interests. Administrative Law deals with the organization and powers of administrative and quasi administrative agencies. The stress on the study of organization is only to the extent that it is necessary to understand the powers, characteristics of actions, procedure for the exercise of those powers and the control mechanism. The study includes not only administrative agencies but also the quasi-judicial agencies such as corporation, boards, universities, independent domestic agencies and the like.

Administrative Law primarily concerns itself with the official action which may be:

  1. Rule making action.
  2. Rule decision action or adjudicatory action.
  3. Rule application action.
One of main thrusts of the study of Administrative Law is on the procedure by which the official action is reached. If the means or procedure are not trust worthy the end cannot be just.

An administrative action may be controlled by:

  1. Courts exercising writ jurisdiction through the writs of habeas corpus, mandamus, certiorari, prohibition and quo-warranto.
  2. Courts exercising ordinary judicial powers through suits, injunctions and declaratory actions.
  3. Higher administrative authorities.
  4. Public opinion and mass media in the 20th century is also an important control on any administration which a student of Administrative Law cannot lose sight of.

Consumer organizations and interests representations also play an important role in controlling the arbitrary exercise, public power both the pre-natal and postnatal stages. Though in India this form of control is still at the take off stage yet organizations such as consumer protection and research society for protection of civil liberties and other consultative and advisory bodies have played a significant role in this direction.

Cause of Administrative Law in India.
Basically Administrative Law is a byproduct of intensive form of government. During the last century the role of government has changed in almost every country of the world Laissez fairy to paternalism and from paternalism to materialism. Today the expectation from the government is not only to protect its people from external aggression and internal disturbance but also to take care of its citizens from the cradle to the grave.

Till the end of the British rule in India, the government was concerned with the most primary duties only and the functions of a welfare state were not discharged. When India became independent the philosophy of welfare state was made the creed of the Indian Constitution.

Article 38 provides that the state shall strive to secure a social order in which social and economic justice shall inform all institutions of national life.
Article 39 requires the state to direct its policy towards securing an order in which citizen have equal rights to an adequate means of livelihood.
Article 39-A and Article 31 oblige the state to provide for equal justice and free legal aid, work within its economic capacity and development, education assistance in old age, unemployment and other contingencies.
Article 43 & Article 43-A enjoin upon the state to secure work for the workers, Living wage, decent standard of living and participation in the management of industries.
Article 45 obliges the state to provide free and compulsory education for children up to the age of 14 years.
Article 47 enjoins upon the state to regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties.
Article 48-A impose a duty upon the state to protect and improve environment.
Article 300 gives a right to the individual to file a suit against the government for the torts committed by its servants.
Article 311 protects government servants from arbitrary actions of the government in the matters of dismissal, termination and reduction in rank.
Article 136 confers power on the Supreme Court to grant special leave to appeal from any judgment, decree, determination, sentence or order passed or made by any court or tribunal in India.
Article 32 and 226, the Supreme Court and the various high courts have been invested with powers to issue writs to check the excess of the government and the administrative agencies.

Today in India, the administrative process has grown so much that it will not be out of place to say that today we are not governed but administered.

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