Administrative law deals with the legal control of the government and related
administrative powers. On the other hand, judicial review is a process under
which executive or legislative actions are subject to review by the judiciary.
Administrative law is the law relating to the control of governmental power. The
primary objective of administrative law is to limit the powers of the government
to protect citizens against their abuse. In other words, we can define
administrative law as the body of rules, regulations, orders, and decisions
created by the administrative agencies of government.
According to Ivor Jennings, “Administrative law is the law relating to the
administration. It determines the organization, powers, and duties of the
According to 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 actions.”
Nature of Administrative Law
Administrative law deals with the powers of administrative authorities, the
exercise of such powers remedies for aggrieved persons by such law, etc. The
administrative process is considered necessary evil in all progressive and
developing societies, particularly in a welfare State. Such a process may affect
the right of citizens of the country. It has been observed by Lord Denning that
“Proper exercise of the new powers of the executive lead to the welfare state,
but if abused they lead to the totalitarian State.”
Scope of Administrative Law
Administrative law deals with the following aspects:
According to Friedman, the scope of administrative law is as under:
- Who are administrative authorities?
- The powers exercised by such authorities.
- Limitations of such powers exercised by such authorities.
- Procedure for using administrative powers.
- It deals with law-making powers of administrative authorities under
common law and various statutes.
- Judicial and quasi-judicial powers of administrative authorities i.e.
Court and Tribunal to deal with problems and remedies (Article 136 and 227
of the Constitution of India).
- Executive power of administration i.e. concentration of power.
- Power of the court to supervise administrative authorities.
- Legal liability of public servant.
According to M.C Jain, the scope of administrative law includes:
Delegated legislation, indispensability, permissibility and constitutionality,
modes of delegation, procedural formality required to be observed by an
administrative agency, safeguard against abuse of power and judicial control.
In respect of judicial functions, it covers the judicial function of
administrative agencies, Administrative Tribunal, procedural guarantee, the
finality of the decision, the jurisdiction of the Supreme Court and the High
Court over the administrative agencies and Tribunals.
It also includes immunities of administrative agencies and bodies from suits and
remedies available against the Union of India and the State instrumentalities.
Administrative Law and Constitutional Law
- A Constitution is the supreme law of the country. No law is above the
Constitution of India and hence, every law must satisfy its provisions and
not be in its violation. So, administrative law is subordinate to
constitutional law. In another word, while Constitution is the genus,
administrative law is a species.
- Constitution deals with the structure of the State and its various
organs, whereas administrative law deals only with the administration of the
- While Constitution touches all branches of law and deals with general
principles relating to organization and powers of the various organs of the
State, administrative law deals only with the powers and functions of the
In a nutshell, the administrative authorities should follow the Constitution
first and then work as per the administrative law.
Administrative Law in India
Administrative law in India meant to regulate administrative actions by
controlling delegated legislation and subjecting administrative discretionary
actions to judicial review. It also provides for the Constitution of Tribunals
and their composition.
When the functions of the legislature are entrusted to organs other than the
legislature by the legislature itself, the legislation made up by such organ is
called delegated legislation. Such power is delegated to the executives or
administrators to resolve the practical issues which they have to face on a
day-to-day basis. The practice of delegated legislation is not bad, however, the
risk of abuse of power is incidental and hence, safeguards are mandatory. There
are three measures to control abuse of power with the help of delegated
legislation as adopted in India, which are as follows:
Parliamentary control is considered as a normal constitutional function because
the executives are responsible for the Parliament. At the initial stage of
Parliamentary control, it is made sure that the law provides the extent of
delegated power. The second stage of such control involves laying of the Bill
before the Parliament.
There are three types of laying:
- Simple Laying: In simple laying, the rules and regulations come into
effect as soon as they are laid down before the Parliament. It is laid down
to inform the Parliament, but the consent of the Parliament with respect to
its approval for the rules and regulations are not required.
- Negative Laying: The rules will come into force as soon as they are
placed before the Parliament, but cease to have effect if disapproved by the
- Affirmative Laying: The rules shall have no effect unless approved by
both the houses of the Parliament.
Procedural control means that the procedures defined in the Parent Act (Act
delegating the legislating power) have to be followed by the administrative
authority while making the rules. It involves pre-publication of the rules, so
that the people who would be affected by the proposed rules know it beforehand
and can make representations if they are not satisfied. After pre-publication is
done and once all the concerned bodies, persons, and authorities have been
consulted, the rules are to be published in the official gazette, in order to
inform the public about the existence of the rules.
The judiciary looks into the following aspects to determine the legal validity
of the rules so made, using the power so delegated:
Administrative Adjudication Tribunals
- If the administrative legislation ultra-vires the Constitution.
- If the administrative legislation ultra-vires the Parent Act.
- If the administrative legislation is arbitrary, unreasonable, and
- If the administrative legislation is mala fide (in bad faith).
- If the administrative legislation encroaches upon the rights of private
citizens derived from the common law, in the absence of express authority in
the Parent Act.
- If the administrative legislation is in conflict with another Statute.
- Power of the legislating authority to legislate the rules.
- If the administrative legislation is vague.
Tribunals are constituted for speedy adjudication (a formal judgment on a
disputed matter) of disputes and settlement of complaints. In a Tribunal,
matters are adjudicated by a bench comprising both judicial and non-judicial
members. However, Tribunals are not a substitute for courts. In India, there are
a number of Tribunals which are constituted under the Central Acts.
Some of the
tribunals are listed below:
- Claim Tribunal Constituted under the Motor Vehicle Act, 1939.
- Industrial Tribunal Constituted under the Industrial Dispute Act, 1947.
- Income Tax Appellate Tribunal Constituted under Income Tax Act, 1961.
- Administrative Tribunal Constituted under the Administrative Tribunal
- Railway Rates Tribunal Constituted under the Railway Act, 1989.
- Competition Appellate Tribunal Constituted under the Competition Act,
In L Chandra Kumar V. Union of India
case, the Supreme Court had held
that Tribunals are the court of the first instance in respect of the areas of
law for which they were constituted. All the decisions of the Tribunals are
subject to scrutiny before the Division Bench
of the High Court within whose jurisdiction
the concerned Tribunal would fall, through an appeal.
Lokayuktas and RTI Act (Lakpal and Lokayuktas Act, 2013)
The Lokpal and Lokayuktas Act, 2013 is an Anti-Corruption Act, which provides
for the establishment of the institution of Lokpal which would inquire into
allegations against public functionaries and matters connected to them. The Act
provides for an investigation into complaints of maladministration
(mismanagement). The office of the Lokpal is equivalent to that of an Ombudsman.
The Act was a result of the massive public protest against corruption under the
leadership of Anna Hazare. The Lokpal is an officer of the Parliament having as
his primary function, the duty of acting as an agent for the Parliament for the
purpose of safeguarding citizens against the abuse or misuse of administrative
power by the executive.
Right to information Act, 2005
The Act provides for the right to information of citizens to gain access to
information under the control of public authorities. The Act promotes the
transparency and accountability of every public authority. The Act is essential
as it keeps the citizenry informed and holds the government and its agencies
accountable to the governed.
Importance of Administrative Law
Administrative law plays an important role in changing the era of the
administrative system. It can be understood with the help of the following
- In Changing Nature of State: The Police State has changed to Welfare
State in the 20th Century. The traditional functions of the State i.e. defence and
administration of justice have undergone a drastic change. The State undertakes
various functions for the benefit of the people in the 20th century.
- To Remove the Shortcomings of the Judicial System: The judicial system
has proved to be inadequate to decide all types of disputes. It was slow,
expensive, complex, and having various other drawbacks that lead to the
enhancement of the importance of administrative law.
- Remove the Inadequacy of Legislative Process: The legislative process is
not capable of laying down detailed rules and regulations for the
functioning of the State. Thus, administrative law helps in removing this
- Reform in Social Life: The social aspect has undergone a drastic change
amongst the citizens of the State. More and more laws were required to deal
with complex situations in the daily life of citizens.
- Increasing Demand from People: Merely defining the right of citizens was
not sufficient, but also solving their problem was important for the State.
- Enhance the Scope for Experiment: The present law-making process is
time-consuming and cannot deal with all problems of the society. Therefore,
it is necessary for a different aspect of making laws.
- Preventive Measures: Administrative authorities also implement
preventive measures like licensing to liquor shops, rate fixing, etc.
- State Economy: The administrative authorities frame national policies
and plans for achieving goals contemplated in the Constitution of India.
- Regulatory Measures: Administrative authorities implement regulatory
measures in relation to industrial production, manufacturing, and
distribution of essential commodities.
- Industries: Industrialization leads to various labor issues. The
administrative machinery was needed to solve such issues.
Natural justice is a concept of common law and represents higher procedural
principles developed by the courts, which every judicial, quasi-judicial and
administrative agency must follow while taking any decision adversely affecting
the rights of a private individual. In short, natural justice implies fairness,
equity, and equality.
It is basically a technical terminology for the rule against bias
in causa sua) and the right to a fair hearing
(audi alteram partem).
While the term natural justice is often retained as a general concept, it has
largely been replaced and extended by the 'general duty to act fairly
The basis for the rule against bias is the need to maintain public confidence in
the legal system. Bias can take the form of actual bias, imputed bias, or
apparent bias. The mere fact that a decision affects the rights or interests is
sufficient to subject the decision to the procedures required by natural
Principles of Natural Justice
In India, the principles of natural justice is firmly grounded in Article 14 and
21 of the Constitution. With the introduction of the concept of substantive and
procedural due process in Article 21, all that fairness which is included in the
principles of natural justice can be read into Article 21. The violation of
principles of natural justice results in arbitrariness and therefore, it also
violates the equality clause of Article 14.
The principle of natural justice encompasses following two rules:
Audi Alteram Partem
Justice cannot prevail if there is no equality. Equality is one of the pillars
on which the entire legal system is based. Under the Indian Constitution, the
principles of natural justice can be traced under Article 14 and Article 21.
The principle of Audi Alteram Partem is the primary notion of the principle of
natural justice. It is derived from The Latin phrase “audiatur et altera pars”
It means 'hear the other side',
or 'no man should be condemned
the sides must be heard before passing any order
The motive of this maxim is to provide an opportunity for other parties to
respond to the evidence against him. This ensures a fair hearing and fair
justice to both parties. Under this doctrine, both parties have the right to
speak. No decision can be declared without hearing both the parties. This
principle aims to allow both parties to defend themselves.
Essential elements of
this maxim include:
Nemo Judex in Causa Sua (Rule against Bias)
- Right to notice.
- Right to present case and evidence.
- Right to rebut adverse evidence i.e. cross-examination and legal
- Disclosure of evidence to the party.
- Report of inquiry to be shown to the other party.
- Reasoned decisions or speaking orders.
It is popularly known as the rule against bias. It is the minimal requirement of
the natural justice that the authority giving decision must be composed of
impartial persons acting fairly, without prejudice and bias.
According to the Lectric Law Library's Lexicon:
any mental condition that would
prevent a judge from being fair and impartial is called bias. It may be ground
for disqualification of the judge in question.”
It is also defined as:
“A predisposition or a preconceived opinion that prevents
a person from impartially evaluating facts that have been presented for
determination; a prejudice.”
This principle of natural justice consists of the rule against bias or interest
and is based on three maxims:
Kinds of Bias
- No man shall be a judge in his own cause.
- Justice should not only be done but manifestly and undoubtedly be seen
to be done.
- Judges, like Caesar's wife, should be above suspicion.
- Personal Bias: It arises out of the personal or professional
relationship or hostility between the authority and the parties. It's human nature that we try
to give the favorable decisions to our friends or relatives, whereas using the
same as a weapon against the enemies. There are two kinds of test for personal
- Reasonable Suspicion of Bias Looks mainly outward appearance.
- Real Likelihood of Bias Focuses on court's own evaluation of
- Pecuniary Bias: Any financial interest, howsoever small it may be, is
bound to vitiate the administrative action and the judicial opinion is
unanimous as to it.
- Subject-matter Bias: The situations where the deciding officer is
directly or indirectly is the subject-matter of the case. In R v. Deal
justices case, the Magistrate was not declared disqualified to try a case of
cruelty to an animal on the ground that he was a member of the royal society
for the prevention of cruelty to animals, as this did not prove a real
likelihood of bias.
- Departmental Bias: The problem of departmental bias is something which
is inherent in the administrative process and if it is not effectively
checked, it may negate the very concept of fairness in the administrative
proceeding. The problem of departmental bias arises in different context
i.e. when the functions of judge and prosecutors is combined in the same
department. It. is not uncommon to find that the same department which
initiates a matter also decides it, therefore, at times, departmental
fraternity and loyalty militates against the concept of fair hearing.
- Preconceived Notion Bias: Bias arising out of preconceived notions is a
very delicate problem of administrative law. On the one hand, no judge as a
human being is expected to sit as a blank sheet of paper. On the other hand,
preconceived notions would vitiate a fair trial.
The problem of bias arising from preconceived notions may have to be disposed of
as an inherent limitation of the administrative process. It is useless to accuse
a public officer of bias merely because he is predisposed in favor of the same
policy in the public interest.
Doctrine of Necessity
The bias would not disqualify an officer from taking an action, if no other
person is competent to act in his place. This exception is based on the doctrine
of necessity. The doctrine of necessity makes it imperative for the authority to
decide and considerations of judicial propriety must yield. It can be invoked in
cases of bias, where there is no authority to decide the issue.
If the doctrine of necessity is not allowed full play in certain unavoidable
situations, it would impede the course of justice itself and the defaulting
party would benefit from it. If the choice is between either to allow a biased
person to act or to stifle the action altogether, the choice must fall in favor
of the former as it is the only way to promote decision-making.
Therefore, the Court held that bias would not vitiate the action of the speaker
in impeachment proceedings and the action of the Chief Election Commissioner in
Judicial review is the power of the Supreme Court or High Court to examine an
executive or legislative act and to invalidate that act if it is contrary to
constitutional principles. This power has been incorporated in the Constitution
itself and cannot be done away with, since it is a basic feature. The
researchers have analyzed the ground of judicial review. Though there is no
clarity regarding the same, through an analysis of case law, the researchers
have attempted to arrive at a certain accepted basis for such a review to take
Judicial Review of Administrative Actions-Grounds
In Council of Civil Services Union v. Minister of Civil Service case, the
grounds of judicial review was stated to be:
- Jurisdictional error
- Procedural impropriety
- Legitimate expectation
Though these grounds of judicial review are not exhaustive and cannot be put in
watertight compartments, yet, these provide sufficient base for the courts to
exercise their review jurisdiction over administrative action in the interest of
efficiency, fairness and accountability.
The term jurisdiction
means power to decide
. The jurisdiction of the
administrative authority depends upon the facts, the existence of which is
necessary to initiate the proceedings and without which the act of the court is
a nullity. These are called 'jurisdictional facts'. This ground of judicial
review is based on the principle that administrative authorities must correctly
understand the law and its limits before any action is taken. The court may
quash an administrative action on the ground of ultra vires in the following
Lack of Jurisdiction
It means where the Tribunal or authority has no jurisdiction at all to pass an
The court has the power to review and may be exercised on the following
Excess of Jurisdiction
- That the law under which the administrative authority is constituted and
exercising jurisdiction is itself unconstitutional.
- That the authority is not properly constituted as required by law.
- That the authority has wrongly decided a jurisdictional fact and thereby
assumed jurisdiction which did not belong to it.
Here the authority initially had the jurisdiction but exceeded it and hence, its
action becomes illegal.
This may happen under the following situations:
Abuse of Jurisdiction
- Continue to exercise jurisdiction despite the occurrence of an event
- Entertaining matters outside its jurisdiction.
All the administrative powers must be exercised fairly, in good faith for that
purpose for which it is given. In the following situations, abuse of power may
Irrationality (Wednesbury Test)
- Improper Purpose: Administrative power cannot be used for the purpose
for which it was not given.
- Error Apparent on the Face of the Record: In Syed Yakoob v. K.S.
Radhakrishnan case, the Supreme Court explained that there would be a case of
error of law apparent on the face of the record, where the conclusion of law
recorded by an inferior tribunal is:
- based on an obvious misinterpretation of the relevant Statutory
- in ignorance of it, or
- in disregard of it, or
- expressly based on reasons which are wrong in law.
- In Bad Faith: Where a decision-maker has acted dishonestly by claiming
to have acted for a particular motive when in reality the decision was taken
with another motive in mind, he may be said to have acted in bad faith.
- Fettering Discretion: An authority may act ultra vires if, in the exercise of
its powers, it adopts a policy which effectively means that it is not truly
exercising its discretion at all.
A general principle which has remained unchanged is that discretionary power
conferred on an administrative authority is required to be exercised reasonably.
A person, in whom discretion is vested, must exercise his discretion upon
reasonable grounds. A decision of the administrative authority shall be
considered irrational if it is so outrageous in its defiance to logic or
accepted norms of moral standard that no sensible person, on the given facts and
circumstances, could arrive at such a decision.
Irrationality as a ground of judicial review was developed by the court
in Associated Provincial Picture House v. Wednesbury case
, later came to be
known as “Wednesbury test” to determine 'irrationality' of administrative
The Delhi High Court in Neha Jain v. University of Delhi case
, clarified that
the basic requirement of Article 14 is fairness inaction of the State and
non-arbitrariness in essence and substance is the heart of fair play, judicial
interference with policy decision is permissible:
- If the decision is shown to be patently arbitrary, discriminatory, or mala
- If it is found to be unreasonable or violative of any provision of the
Constitution or any other statute.
- If it can be said to suffer from any legal infirmity in the sense of its
being wholly beyond the scope of the regulation-making power.
- If it is demonstrably capricious or arbitrary and not informed by any
Failure to comply with the procedures laid down by statute may invalidate a
decision. Procedural impropriety is to encompass two areas viz. failure to
observe rules lay down in statute; and a failure to observe the basic common law
of natural justice. It is a fundamental requirement of justice that, when a
person's interests are affected by a judicial or administrative decision, he or
she has the authority to know and understand any allegations made and to make
representations to the decision-maker in order to meet such allegations.
principles of natural justice, which are imposed by the courts, comprise two
- Audi alteram partem (the rule of fair hearing).
- Nemo Judex in causa sua (there should be an absence of bias with no person
being a judge in their own cause). The essence of justice lies in a fair
hearing. The rule against bias is strict, i.e. it is not necessary to show that
actual bias existed but the merest appearance or possibility of bias will
Proportionality means that the administrative action should not be more drastic
than it ought to be for obtaining the desired result. Proportionality is
sometimes explained by the expression taking a sledgehammer to crack a nut
Thus, this doctrine tries to balance means with ends. Proportionality shares
space with reasonableness
and courts while exercising the power of review see,
'is it a course of action that could have been reasonably followed'.
India have been following this doctrine for a long time, but English Courts have
started using this doctrine in administrative law after the passing of the Human
Rights Act, 1998. Thus, if an action taken by the authority is grossly
disproportionate, the said decision is not immune from judicial scrutiny. The
sentence has to suit the offense and the offender and should not be vindictive
or unduly harsh.
A legitimate expectation will arise in the mind of the complainant wherever he
or she has been led to understand, by the words or actions of the
decision-maker, that certain procedures will be followed in reaching a decision.
A legitimate expectation amounts to an expectation of receiving some benefit or
privilege to which the individual has no right. Legitimate expectation means
expectation having some reasonable basis.
The doctrine of legitimate expectation
has evolved to give relief to the people when they are not able to justify the
claims on the basis of law in the strict sense of the term though they had
suffered civil consequences because their legitimate expectation has been
Two considerations apply to legitimate expectations
- The first is where an individual or the group has been led to believe
that a certain procedure will apply.
- The second is where an individual or the group relies upon a policy or
guidelines which have previously governed an area of executive action.
In R.P Singh v. State of Bihar
case, the Supreme Court explained that the
expression 'established practice' referred to regular, consistent, predictable,
and certain conduct, process, or activity of the decision-making authority. The
expectation should be legitimate i.e. logical, reasonable, and valid. The
doctrine of legitimate expectation would apply in cases where the decision taken
by the authority is found to be arbitrary, unreasonable, and not taken in the
In Jatinder Kumar v. State of Haryana
case, the court held that the Government
had a right to review the decisions taken by the previous establishments and
hence, it could suspend the process of recruitment started by the previous
government, because of allegations of irregularities and this could not be
challenged on the ground of violation of legitimate expectations.
In a nutshell, judicial review is a powerful weapon to restrain the
unconstitutional exercise of power by the legislature and executive. The
expanding horizon of judicial review has taken in its fold the concept of social
and economic justice. While the exercise of powers by the legislature and
executive is subject to judicial restraint, the only check on our own exercise
of power is the self-imposed discipline of judicial restraint.