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Excess Administration: Where do the power of authorities end?

Ever since the advent of time and the modification to the definition and purpose of the term state, the role of the administration viz-a-viz the government has increased to a large extent. The focus has shifted from state being the guardian to state being the provider and the concept of a welfare state has taken shape. In such circumstances, it is extremely essential to properly define what the administration stands for as well as to understand the boundaries within which it has to exercise its duty. To understand these boundaries, we need to take a look at the definition of administrative law.

In simple words, administrative law tends to check the legality of the government's actions. Its role is to define, what the government can and what it cannot. It is not a statute-based law and hence has several lacunae's. It is here, that the creativity of the judges comes to play and administrative law is given an interpretation as per the convenience of the judiciary. Hence, administrative law has also been called as judge-made law.[i]

Ubi jus ibi remedium is a legal maxim which says that where there is a right, there is a remedy. Administrative law as a whole is based on this maxim where its aim is limited to bring the process of administration within the established boundaries of rule of law.

Administrative law has been defined as that legal framework within which public administration ought to be carried out.[ii] It tends to create a boundary within which the government is supposed to work. What one must realise is that the government as such is an abstract concept which is intangible. It is the people working in the government that do all the work. Hence, for their convenience it is of the utmost importance that the term is defined.

The traditional approach has often maintained administrative law to be something which concerns the powers conferred and the methodology used by administrative agencies. It also talks about the applicability of judicial review to administrative processes. This traditional approach has been upheld by jurists such as K.C. Davies and Ivor Jennings.

Professor A.V Dicey[iii] while defining administrative law, focuses on the legal rights and liabilities of government officials as well as the common people interacting with such officials and how they are to be exercised. Professor Upendra Baxi, an eminent legal luminary has referred to administrative law as the weapon in the arsenal of the middle class to fight the all-powerful government.

Nature of Administrative Law

The presence of administrative law can be traced back to time immemorial. The reason for this is that from whenever humans started to form a group and live together, administration started and this administration was done by following certain rules. In modern times, this itself is called a law.

The need of the hour is to have a fine balance between the overall social betterment of the community through the state led administration and an individual's personal rights. The very objective of administrative law is to ensure that the discretionary powers of the government are not converted into arbitrary ones.

Scope of Administrative Law

It aims to study the nature, structure and procedures being adopted by the administrative organs of the government. It also seeks to lay the remedies available to a person whose rights have been breached by arbitrary use of administrative power. It includes things like Delegated legislation, functions of judicial tribunals, common law guarantees such as rule of law and natural justice etc. Control on these powers also falls within the ambit of the scope of the subject.

Necessary restraints: Control on administrative power

Administrative law, as discussed earlier, is not a statute-based law. It doesn't have its origins written somewhere from which its limits can be established. However, a read of the definitions given by eminent jurists as well as a look into the nature and scope of the law, reveal that the idea was always to define a limit which the administration cannot transgress. The very existence of legal remedy in the form of the judicial review shows us that the administering body is expected to not transgress certain prescribed limits.

Let us understand it this way. Administrative law is no separate branch of law. It ebbs and flows from the Constitution. For a long time, constitutional law and administrative law was considered one and the same. As a matter of fact, the constitution prescribes very specific limits for the government to act within. Overstepping these established lines would lead to the act being ultra vires the constitution itself and will be struck down by the court of law.

It is agreed that administration of such a large country is no easy task. Hence, for the same, principles such as that of delegated legislation has been formulated where certain bodies can legislate. However, this again has to be within prescribed boundaries. If no such boundaries are established by virtue of either the constitution or a statute, then the all-powerful executive would be in a position to exploit this power.

The Supreme Court of India through a plethora of judgements on delegated legislation has indoctrinated a few principles thereby limiting the power of delegation legislation. It came up with the principle of essential function where the legislature cannot delegate an essential function because that would amount to excessive delegation [iv]

For example, if an administrative decision is taken which is in gross violation of Part III of the constitution, then the courts will act as a safeguard and by striking down such an act, remind the executive of the constitutional limit of administrative law. The constitution/statute has to expressly authorise an act. Only then can the authorities use their power to perform such an act. Transgressing that power is not within the scope of administrative law.

The concept of rule of law is also important in this context. By and large, the Keshvananda [v] Bharti judgement had said that rule of law (which is nothing but a facet of the constitution) is a part of the basic structure doctrine, something which cannot be amended by the constitution. In furtherance of this concept, Justice Khanna, and Justice Chandrachud[vi] struck down an amendment to the constitution on the ground that it violated the rule of law in the infamous case of the ousted Prime Minister Mrs Indira Gandhi.

Moreover, in the much talked about Habeas Corpus Case[vii], arguments were put forth that Part III to the constitution cannot be suspended even in times of Emergency because of it being in violation of the rule of law which in turn is a core facet to our written constitution.

Hence, in a nutshell, one can conclude that administrative law does not confer unlimited power on the authorities exercising it. They are duty bound to act within the limits of the constitution and the statutes which flow from the provisions of the constitution otherwise which the common man will be left at the perils of the almighty state with little to no power to object to arbitrary and irrational actions.

In contemporary times, as the state has transpired to become a welfare state, the need to keep a check on the administrative actions has also increased because in the garb of "social welfare", transgressing constitutionally/legislatively set boundaries is becoming an all to common phenomenon. It is here that the supreme law of the land and concepts such as that of rule of law come to the rescue.

  1. (Accessed on 09-07-2021 at 19:22 hrs)
  2. Simey, T. S. The Economic Journal 58, no. 230 (1948): 264-66. Accessed July 9, 2021. doi:10.2307/2225949.
  3. Walters, Mark D. "Dicey's Administrative Law Blind Spot." Chapter. In A.V. Dicey and the Common Law Constitutional Tradition: A Legal Turn of Mind, 299�329. Cambridge Studies in Constitutional Law. Cambridge: Cambridge University Press, 2020. doi:10.1017/9781139236249.013.
  4. Re Delhi Laws Act, 1951 SC
  5. Keshvananda Bharti vs State of Kerala, AIR 1973 SC 1461.
  6. Indira Nehru Gandhi vs Raj Narain, Appeal (civil) 887 of 1975.
  7. Adm Jabalpur Vs Shivkant Shukla, 1976 AIR 1207. 
Written By: Mr. Saikat Mukherjee, A 3rd year BA LLB student at Symbiosis Law School, Nagpur.
Email : [email protected]

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