INTRODUCTION

Administrative law is the body of law that governs the activities of administrative agencies of
government. Government agency action that can include rule making, adjudication or the
enforcement of a specific regulatory agenda. Administrative law is considered a branch of public
law. As a body of law, administrative law deals with the decision-making of administrative units
of government (for example, tribunals, boards or commissions) that are part of a national
regulatory scheme in such areas as police law, international trade, manufacturing, the
environment, taxation, broadcasting, immigration and transport. Administrative law expanded
greatly during the twentieth century, as legislative bodies worldwide created more government
agencies to regulate the social, economic and political spheres of human interaction.

Civil law countries like Brazil, Chile, France often have specialized courts, administrative courts,
that review these decisions.

Administrative Law is the law relating to public administration. Administration is the act of
process of administering, which simply means it is the act of meting out, dispensing, managing,
supervising and executing etc.

It is the law relating to control of governmental power. It can also be said to be the body of
general principles, which govern the exercise of powers and duties by public authorities.

The primary purpose of administrative law, therefore, is to keep the powers of government
within their legal bounds, so as to protect the citizen against their abuse. Administrative law is
also concerned with the administration and dispensation of delivery of public services. However
it does not include policy making. Administrative is concerned with the government carries out
its tasks.

What are the government tasks, delivery of public services such as health, security, facilitating
trade, arbitration of disputes, and collection of revenue. We are concerned about various public
institutes of the government, ministries etc.

Administrative law is the law relating to the executive branch of government. The law deals
with a variety of things i.e. the establishment of public authorities e.g. the city council,
establishment of public bodies and organs.

The nature of the tasks given to various public organs and public agencies.

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The legal relationship between the public bodies themselves and also between the public
agencies and the public and between public agencies and the citizens.

Administrative Law is concerned with the means by which the powers and duties of the various
public agencies, public bodies and public institutes can be controlled.

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 WHAT IS ADMINISTRATIVE LAW?

Administrative Law covers a wide and varied area of practice, encompassing many different
types of governmental legal procedures and regulations, and is not easily defined. Much of
government and its public programs operate largely through various agencies on different levels:
federal, state, county, and city. These agencies are also known as boards, commissions,
departments, and divisions.

They generally have their own specific rules and regulations, which are not usually found in the
statutes, with stringent procedures individuals must follow to obtain assistance from the agency
and to file claims, grievances and appeals. Legal rulings by Administrative Law Judges (ALJs)
have governing authority the same as most precedent law. Administrative law attorneys can offer
assistance when maneuvering through these complicated proceedings.

The Administrative Procedure Act is the governing law for federal administrative agencies. Most
states also have their own governing law for their state administrative agencies. These laws allow
for the creation of the rules and regulations, as well as the procedures necessary for those
unhappy with the agencies or their decisions to seek remedies via appeal or complaint. They are
carried out with the same authority as the more well-known statutory laws, and so, as with other
areas of law, the skills of an experienced administrative law attorney are often required.

The publics need for a professional in the administrative law practice area generally exists when
dealing with governmental agencies that provide some type of specific public benefit or aid to
individuals, and particularly when the benefit might be or has been terminated, limited or
outright denied. Examples of these administrative bodies include some of the following: Social
Security Administrations; Employment/Labor Boards; Unemployment Insurance Agencies;
Workers Compensation Boards; Licensing Agencies; Equal Opportunity Commissions (EEOC);
and Zoning Boards.

When an individual wants to appeal an administrative law decision or determination, he must

exhaust all of the options provided by the agency first, before he may proceed to a non-
administrative court. For example, she would usually need to file an appeal and participate in an
administrative hearing presided over by an ALJ as a first step, if she disagrees with a decision to
deny, terminate or limit her benefits. Once an order is handed down, either side may appeal if it
is an unsatisfactory outcome. Some agencies provide for another level within the department,
while others allow the appellant to then appeal to a court outside of the agency. Even in these
instances, a professional in the administrative law field is usually a necessity.

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 APPLICATION OF ADMINISTRATIVE LAW

The law relating to public health education, housing, and other public services could logically be
regarded as part of the corpus of administrative law; but because of its sheer bulk it is usually
considered ancillary.

The application of Administrative Law is basically in the working of the executive where the
administration of different areas of work is to be maintained.

Public Consultation and Decision-making in Local Government.

Requirements for and expectations of local authority consultation have increased dramatically
over the past 10 years. But what is consultation? And when and how are local authorities
required to consult?

Some local authorities are experiencing difficulties in interpreting and applying the legal
requirements concerning consultation. In addition, there may be different expectations and
understandings of what consultation requires both among local authorities and between local
authorities and their communities.

Recognising that local authorities may find some guidance on the subject timely and helpful, we
commissioned an analysis of the current statutory requirements and relevant case law from law
firm Simpson Grierson.1

Our intention is to add to the current understanding of consultation requirements affecting local
government. However, consultation requirements under the Resource Management Act 1991 and
consultation with iwi are not covered by this report as they have been comprehensively
addressed by other agencies.2

1 www.oag.govt.nz/1998/public-consultation (Last Visited March 1,2017)

2 ibid

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RELATIONSHIP BETWEEN ADMISTRATIVE LAW
AND CONTITUTIONAL LAW
Since the English Constitution is unwritten, the impact of constitutional law upon administrative
law in England is insignificant and blurred. As Dicey observes, the rules which in other countries
form part of a constitutional code are the result of the ordinary law of the land in England.
As a result, whatever control the administrative authorities can be subjected to, if any, must be
deduced from the ordinary law, as contained in statutes and judicial decisions. But, in countries
having written constitutions, there is an additional source of control over administrative action.
In these countries there are two sources or modes of exercising judicial control over the
administrative agencies constitutional and non-constitutional. The written constitution imposes
limitations upon all organs of the body politic. Therefore, while all authors attempt to distinguish
the scope of administrative law from that of constitutional law, they cannot afford to forget not to
mention that in a country having written constitution with judicial review, it is not possible to
dissociate the two completely.
In written constitution like that of India the relationship between constitutional law and
administrative law is very distinct. There are several principles which are derived from the
constitutional law and they constitute the fundamental basis of Administrative law. Among the
various sources of Administrative law, constitution stands for most besides the starting statutory
instruments and precedents. In a written constitution like that of India the control mechanism
over the powers over the administrative authorities is sometimes delineated at length. For
example in India there are several constitutional provisions like articles 32, 136, 226, 227, 299
and 300 which comprehensively devise the modes of judicial control over different kinds of
Administrative actions. Our constitution being the highest law of the land not only describes the
powers and functions of various organs of the state but it also spell out the limitations thereof. If
any of these organs does not observe the limitations and exceed the bounds of their powers and
jurisdiction their acts would be declared Ultra Vires the constitution. Constitutional law thus
enters into every sphere of Administrative law by providing several modes of judicial review of
Administrative action. In our country it is the duty of the courts to ensure that administrative
powers are exercised in conformity with the rules of law and constitutional provisions. The writ
jurisdiction of the Supreme Court can be invoked under article 32 in all those cases where a
governmental action is found to be in violation of fundamental rights guaranteed in chapter III of
the constitution. Moreover the provisions of leave to special appeal under article 136 of the
constitution which is available against any award, judgment, decree or order us by any judicial
quasi judicial authority India has vested the supreme court with extraordinary jurisdiction to
scrutinize the Quasi judicial functions of Administrative authorities. Writ jurisdiction of the High
Court under article 226 providing for the enforcement of fundamental rights as well as legal
rights against the state is an instance of effective safeguard to citizens of the country. The
dynamic interpretation of various remedial provision of the constitution has expanded the
Horizons of judicial control of Administrative action. Several principles of Administrative law
relating to control mechanism of Administrative powers emanated from judicial pronouncements
only. Expansion of the rules of natural justice of Administrative functioning, and the

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liberalisation of the rule of locus standi are the significance instances of the Court's contribution
in the development of subject.
Constitutional Law has notwithstanding Substantial and Procedural law a separate status defining
structure and organization of only Laws particularly. On the other hand Administrative Law
obeying Constitutional laws and dealing with organization and functioning of laws in Force.
Application and implementation of such statutes should be in conformity with the Constitution.
Any law abridges or endangers or violates or abrogates Right of an Individual provided as
Fundamental Rights will attract the action of judicial review or any misconduct detected in
functions will also have to be reviewed by the action of Judges as Judiciary having powers to
decide the administrative matters. Source of Administrative Law and Constitutional Law id same
and i.e. Rule of Law.

CONSTITUTIONAL DETERMINATION OF THE

SCOPE OF ADMINISTRATIVE FUNCTION

The Indian Constitution is unanimously and rightly termed as the grand norm" with respect to
domestic legislations. The Constitution circumscribes the powers of the legislature and executive
and limits their authority in various ways. It distributes the governmental powers between the
Centre and the States. It guarantees the fundamental rights to its citizens and protects them from
any abridgement by the State by way of legislative or executive action. The courts interpret the
Constitution and declare the acts of legislature as well as executive as unconstitutional if they
violate the any provision of the Constitution.
It also bridles the legislature in that they cannot make a law which delegates essential legislative
powers or which vests unrestrained discretionary powers with the executive so as to make its
arbitrary exercise possible. The validity of an executive act is seen with reference to the power
given to it by the legislature. The Constitution has, however, in turn laid down the framework
defining the extent of laws made by Parliament and the State Legislatures. Constitutional law
therefore enjoys the status of the prime moderator monitoring legislative actions and in turn
installs a yardstick upon the extent of the rules made by the executive while acting in the
capacity of a delegate. It can be inferred indisputably that constitutional law plays a critical role
of the key channel from where the guidelines determining the scope of administrative action
flow, thereby establishing a unique relationship between the two very distinct but highly related
spheres of law.

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 JUDICIAL CONTROL OVER ADMINISTRATIVE
PROCESS

Objectives of the course Administrative law is mainly a judge-made law and has secured its
present features through a myriad of judicial decisions. The historical evolution of the judicial
agencies reviewing administrative procedures, jurisdictional aspects of administrative decision
making subjected to review, the grounds on which decisions are challenged, the scope of review
of delegated legislation and the limitations on the judicial review of administrative action are to
be studied in detail in this course. The procedural fairness is the key to good administrative
decision and the various remedies rendered in judicial process clear the way for achieving
administrative justice. The ever increasing number of delegated legislation in the form of rules,
regulations, circulars and general orders has the characteristics of law, which though framed by
administration, impose burden on the rights of citizens. Keeping this specie of administration
beyond judicial review is neither in the interests of the general public nor for laying down
standards of administrative behavior.

An Overview Judicial review of administrative action is perhaps the most important development
in the field of public Law in the second half of this century. Judicial review is a great weapon in
the hands of judges. It comprises the power of a court to hold unconstitutional and unenforceable
any law or order based upon such law or any other action by a public authority which is
inconsistent or in conflict with the basic law of the land . By judicial control is meant the power
of the courts to examine the Legality of the officials act and thereby to safeguard the
fundamental and other essential rights of the citizens. The underlying object of judicial review is
to ensure that the authority does not abuse its power and the individual receives just and fair
treatment and not to ensure that the authority reaches a conclusion, which is correct in the eye of
law. The role of judiciary in protecting the citizens against the excess of officials has become all
the more important with the increase in the powers and discretion of the public officials in the
modern welfare states. But the courts cannot interfere in the administrative activities of their own
accord. They can intervene only when they are invited to do so by any person who feels that his
right have been abrogated or are likely to be abrogated as a result of some action of the public
official. Secondly, the courts cannot interfere in each and every administrative act, as too much
of Judicial action may make the official too much conscious and very little of it may make them
negligent of the rights of citizens. In the words of Mr. L.D. White, "At one extreme, the vigour of
judicial control may paralyse effective administration, at the other the result may be offensive
bureaucratic tyranny, exactly where the balance may be best struck is a major problem of judicial

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administrative relationship. Now we discuss the judicial control system in USA, U.K. and then
Bangladesh.3

JUDICIAL DECISIONS

A.K. GOPALAN VS STATE OF MADRAS

In A.K Gopalan vs State of Madras4 petition by the applicant under article 32(1) of the
Constitution of India for a writ of habeas corpus against his detention in the Madras Jail. In the
petition he has given various dates showing how he has been under detention since December,
1947. Under the ordinary Criminal Law he was sentenced to terms of imprisonment but those
convictions were set aside. It was held that the Preventive Detention Act, 1950 was ultra vires to
the Constitution of India with the exception of section 14 which is illegal and ultra vires. The
validity of Section 14 does not affect the rest of the provisions in the Act. Section 12 of the Act
also does not call for the provisions of the Constitution of India and is therefore ultra vires. It
was further held that Article 21 is applicable to Preventive Detention Act, 1950 permits detention
beyond a period of three months and excludes the necessity of consulting an advisory board in
the opening words of Clause 7 of Article 22 with sub-clause b of said article is permissible. It is
not obligatory on the Parliament to prescribe any maximum period.

In this case the Supreme Court of India had come up the validity of the Preventive Detention Act
where it clearly mentions its constitutional validity but also emphasizes on the fact that as it is
the area of work of the Parliament to put up the maximum period and it being an administrative
work cannot be interfered with the judiciary but can be outlined to highlight the area of concern.
This Case is an example of Administrative Function with Constitutional validity.

3 Md. Awal Hossain Mollah, Judicial Control over Administration and Protect the
Citizen's Rights: An Analytical Overview (Dept. of Public Administration, Rajshahi
University,)

4 AIR 1950 SC

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 ASIF HAMID VS STATE OF JAMMU AND KASHMIR

In Asif Hameed V. State of Jammu & Kashmir5, the selection to the MBBS course in the two
Governmental colleges of J&K has been set aside by High court on the ground that the selection
was not held in accordance with the direction of the said court given in an earlier case Jyotshana
Sharma V. State of J&K. In that case the High Court directed the State government to entrust the
selection process of two medical colleges to a statutory independent body which was to be free
from executive influence. No such body was constituted.
The primary issue, in this case, is whether the High court has the competence to issue directions
to the State Government to constitute Statutory Body for selection and whether selection made
by any other authority is invalid on the ground alone.
The Supreme court observed that although the doctrine of separation of powers hasnt been
recognized under the Constitution, the Constitution-makers have carefully defined the functions
of various organs of the State. Legislature, executive and judiciary have to function within their
own where demarcated under the Constitution. No organ can usurp the functions assigned to
another. The functioning of democracy depends upon the strength and independence of each of
its organs. Legislature and executive have all the powers including that of finance. Judiciary has
power to ensure that the aforesaid two main organs of State function within the constitutional
limits. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by
legislature and executive. The only check on courts own exercise is power is the self-imposed
discipline of judicial restraint

While exercising power of judicial review of administrative action, the court is not an appellate
authority. The Constitution does not permit the court to direct or advise the executive in matters
of policy or to sermonize qua any matter which under the Constitution lies within the sphere of
legislature or executive, provided these authorities do not transgress their constitutional limits or
statutory powers.
It is entirely a matter for the executive branch of the Government to decide whether or not to
introduce any particular legislation. Of course, any member of the legislature can also introduce
legislation but the court certainly cannot mandate the executive or any member of legislature to
initiate legislation, however necessary or desirable the court may consider it to be. That is not a

5 AIR 1989 SC 1899

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matter which is within the sphere of the functions and duties allocated to the judiciary under the
Constitution.

When the Constitution gives power to the executive government to lay-down policy and
procedure for admission to medical colleges in the State then the High Court has no authority to
divest the executive of that power. The State Government in its executive power, in the absence
of any law on the subject, is the competent authority to prescribe method and procedure for
admission to medical colleges by executive instructions, but the High Court transgressed its self
imposed limits in issuing the directions for constituting statutory authority. However, the
selection procedure is always open to judicial review on the grounds of unreasonableness, etc.
In conclusion, Doctrine of separation of Powers in todays context of Liberalization,
privatization and globalization cannot be interpreted to mean either separation of powers or
check and balance or principle of restraint but community powers exercised in the spirit of
cooperation by various organs of the State in the best interest of the people.

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 TATA CELLULAR VS UNION OF INIDA

Tata Cellular vs. Union of India6, Supreme Court held the need to find a right balance between
administrative discretion to decide the matters on the one hand, and the need to remedy any
unfairness on the other.
(1) The modern trend points to judicial restraint in administrative action.
(2) The court does not sit as a court of appeal but merely reviews the manner in which the
decision was made.
(3) The court does not have the expertise to correct the administrative decision. If a review of the
administrative decision is permitted it will be substituting its own decision, without the necessary
expertise, which itself may be fallible.
(4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation
to tender is in the realm of contract.
(5) The Government must have freedom of contract. In other words, a fair play in the joints is a
necessary concomitant for an administrative body functioning in an administrative sphere or
quasi-administrative sphere. However, the decision must not only be tested by the application of
Wednesbury principle of reasonableness (including its other facts pointed out above) but must be
free from arbitrariness not affected by bias or actuated by mala fides.
(6) Quashing decisions may impose heavy administrative burden on the administration and lead
to increased and unbudgeted expenditure.

6 AIR 1994 SCC 651

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 A.K. KRAIPAK VS UNION OF INDIA

In case A.K. Kraipak v. Union of India7 , the Court was of the view that in order to determine
whether the action of the administrative authority is quasi-judicial or administrative, one has to
see the nature of power conferred, to whom power is given, the framework within which power
is conferred and the consequences.

Administrative action may be statutory, having the force of law, or non statutory, devoid of such
legal force. The bulk of the administrative action is statutory because a statute or
the Constitution gives it a legal force but in some cases it may be non-statutory, such as issuing
directions to subordinates not having the force of law, but its violation may be visited with
disciplinary action. Though by and large administrative action is discretionary and is based on
subjective satisfaction, however, the administrative authority must act fairly, impartially and
reasonable.

Grounds for Judicial Review of Administrative Actions

1. Illegality
2.Irrationality
3 Procedural impropriety

4. Proportionality

Present Scenario in India over Administrative Actions

Judicial review is central in dealing with the malignancy in the exercise of power. However, in
the changed circumstances of socio-economic development in the country the Court is
emphasizing self restraint. Unless the administrative action is violative of law or
the Constitution or is arbitrary or mala fide, Courts should not interfere in administrative
decisions . Moving in this direction, the apex Court in Sidheswar Sahakari Sakhar Karkhana Ltd.
v. Union of India8, was of the opinion that normally the Court should not interfere in policy

7 AIR 1970 SC 150

8 AIR 2005 SC

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matter which is within the purview of the government unless it is shown to be contrary to law or
inconsistent with the provisions of the Constitution.

Therefore, it was held that grant of concession, exemption, incentive and rebate is a matter of
policy with the government under the Central Excise Act, 1944, and hence, Court should not
interfere unless found violative of law and Constitution. The Court was quick to add that this
principle of judicial review is not a matter of exclusion of the power of judicial review but of
judicial self-restraint . Before us there are various instances where serious administrative
actions lapses in government department. First important case is coal scam in which the figure to
be around 1,060,000 crore (US$192.92 billion).

It is called by the media as the Mother of all Scam the Comptroller & Auditor General's draft
report titled 'Performance Audit Of Coal Block Allocations' says the government has extended
"undue benefits", totaling a mind-boggling Rs 10.67 lakh crore, to commercial entities by giving
them 155 coal acreages without auction between 2004 and 2009. In 2005 the Expert Committee
on Coal Sector Reforms provided recommendations on improving the allocation process, and in
2010 the Mines and Minerals (Development and Regulation) Act (MMDR Act), 1957
Amendment Bill was enacted, providing for coal blocks to be sold through a system of
competitive bidding. Numbers of allegations were made on Congress and BJP leaders such as
Subodh Kant Sahay, Tourism Minister in the UPA government, Congress MP, Naveen Jindal's,
Ajay Sancheti's SMS Infrastructure Ltd.

He is a BJP Rajya Sabha MP and is believed to be in close relation with Nitin Gadkari. At the
end of June 2012, Coal Ministry decided to form an Inter-Ministerial Group (IMG), to decide on
either de-allocation or forfeiting the Bank Guarantees (BG) of the companies that did not
develop allotted coal blocks. September 2012 Coalgate reaches Supreme Court of India
Advocate M L Sharma filed a Public Interest Litigation (PIL) in the Supreme Court seeking to
cancel the allotment of 194 coal blocks on grounds of arbitrariness, illegality, unconstitutionality
and public interest. Defending the CAG, a Supreme Court bench of Justices R M Lodha and A R
Dave dismissed the Solicitor General Rohinton Narimans objections that petition relies heavily
on the CAG report by saying, the CAG is a "Constitutional authority" and that its report is "Not a
piece of trash".

Moreover, the Court ordered the government to inform it of reasons for not following the 2004
policy of "competitive bidding" for coal block allocation. Another example is 2G Spectrum
(Second Generation of Telecom, and Radio Waves,) case where same mistake was revised by
Telecom Ministry of Government of India. 2G licenses issued to private telecom players at
throwaway prices in 2008. These procedures were not followed, Rules changed after the game
had begun , cut-off date for applications advanced by a week, licenses issued on a first-come-
first-served basis, no proper auction process followed, no bids invited. DMK chief M
Karunanidhi's daughter and MP Kanimozhi who has been named by the CBI as a co- conspirator
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with A Raja.

The Comptroller and Auditor General of India said the entire process of spectrum allocation was
undertaken in an arbitrary manner. One more action of administrative misuse is regarding to slap
the charge of sedition under Section 124A of Indian Penal Code 1860 on Binayak Sen and
Cartoonist Aseem Trivedi. The controversy arose with the arrest of Binayak Sen a pediatrician by
profession, public health specialist and an activist was at receiving end. On 24th December 2010,
Additional Sessions Court and District Court Judge, Raipur found that Binayak Sen guilty of
sedition for helping Maoists in their fight that lead to widespread protest in the country to save
Binayak from the clutch of vested administrative authorities.

There is feeling among people of all walks of life, in the Democracy, everyone who is
dissatisfied with the government has the right to create disaffection against it and wanted to oust
the government at next general election 2014. In fact, it is the Constitutional right of every
Citizen to expose the misdeeds of government and work towards throwing it out of power
without doing any violence. The apex Court convinced on records placed by Defence Counsel of
Binayak Sen that no sedition case made out against Sen.

In this view, Supreme Court granted bail by saying trial Court would impose certain conditions
on bail. Mumbai police dropped sedition charges against Aseem Trivedi in view of widespread
protest by people. Another instance of excessive use of administrative actions is that two girl
posted their comments regarding questioning the shutdown due to demise of Shiv Sena Chief Bal
Thackeray in Mumbai. Her comment People like Thackeray are born and die daily and one
should not observe a bandh (city shutdown) for that, Mumbai police arrest them on direction
of Shiv Sena members, charged them of hurting religious sentiments, and Information of
Technology Act 2000. But after few days due to pressure mounted by public in Country, police
dropped all charge against these two girls. On such action state government woke up to undo the
mistake taken by Mumbai police, suspends police officer and constable who charged them and
shift district magistrate who heard their case by state government.

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 CONCLUSION

Although the relationship between constitutional law and administrative law is not very
emboldened to be seen with naked eyes but the fact remains that concomitant points are neither
so blurred that one has to look through the cervices of the texts with a magnifier to locate the
relationship. The aforementioned veracities and illustrations provide a cogent evidence to
establish an essential relationship between the fundamentals of both the concepts. If doubts still
persist, the very fact that each author, without the exception of a single, tends to differentiate
between the two branches of law commands the hypothecation of a huge overlap.
The separate existence of administrative law is at no point of time disputed; however, if one
draws two circles of the two branches of law, at a certain place they will overlap depicting their
stern relationship and this area may be termed as watershed in administrative law. In India, in the
watershed one can include the whole control mechanism provided in the Constitution for the
control of administrative authorities i.e. Articles 32, 136, 226, 227 300 and 311. It may include
the directives to the State under Part IV. It may also include the study of those administrative
agencies which are provided for by the Constitution itself under Articles 261, 263, 280, 315, 323-
A and 324. It may further include the study of constitutional limitations on delegation of powers
to the administrative authorities and also those provisions of the Constitution which place fetters
on administrative action i.e. fundamental rights.

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