TyroCity: Administrative Law Notes

Classification of Powers of Administrative Agencies

Administrative Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Administrative agencies, in order to realize their purpose efficiently and effectively, need wider power and discretion. For this reason, they blend together three powers of government: executive, legislative and judicial powers. Even though in principle the later two powers belong to the legislature and courts, granting such powers has become a compulsive necessity for an effective and efficient administration.
Administrative agency rules and regulations often have the force of law against individuals. This tendency has led many critics to charge that the creation of agencies circumvents the constitutional directive that laws are to be created by elected officials. According to these critics, administrative agencies constitute an unconstitutional, another bureaucratic branch of government with powers that exceed those of the three recognized branches (the legislative, executive, and judiciary). In response, supporters of administrative agencies note that agencies should be created and overseen by elected officials, or the president. Agencies are created by an enabling statute; a state or federal law gives birth to agency and outlines the procedures for the agency’s rule-making. Furthermore, agencies include the public in their rule-making processes. Thus, by proxy, agencies are the will of the electorate.
Supporters of administrative agencies also note that agencies are able to adjudicate relatively minor or exceedingly complex disputes more quickly or more flexibly than the state and federal courts, which helps to preserve judicial resources and promotes swift resolutions. Opponents argue that swiftness and ease at the expense of fairness are not virtues, the thrive of the administrative agencies.

Doctrine of Ultra Vires

Administrative Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Doctrine of Ultra Vires means beyond the scope, power or authority of any company, corporation or statutory body. The term ‘Ultra Vires’ implies absence of capacity or power of the person to do any act. It is not necessary that an act to be ultra vires must be illegal; it may or may not be. An act is said to be ‘Ultra Vires’ when it is enacted in excess of the legislative power. A rule is Ultra Vires when it is beyond the rule-making power of the authority. It is the basic doctrine in Administrative law and the foundation of judicial power to control actions of the administration. When the power is conferred on the administrative body, the instrument conferring the power may itself provide for restriction on the exercise of the power. If administrative body goes beyond such restrictions imposed on it, in the exercise of power, it is treated Ultra Vires.

The supreme court of India in Uttar Pradesh Vs Renusagar power co. expressed”If the exercise power is in the nature of subordinate legislation, the exercise must conform to the provision of the statute. All the conditions of the statute must be fulfilled.”Yet in another case, Greater Bombay Municipal corp. Vs Nagpal printing Mills, the court emphatically stated that delegated legislation repugnant to, or inconsistent with, or in contravention of, or in excess of, or overriding the provisions of the parent Act is Ultra Vires.

The doctrine of Ultra Vires has two principles bases or aspects and the bases of doctrine of ultra vires are the method or approaches to control the delegated legislation by the judiciary.

Substantive Ultra Vires
Procedural Ultra Vires

Substantive Ultra Vires
If the delegated legislation involves the defects of substance or if the exercise of any power will be limited by the substance of power i.e., what the administrative authority is empowered to do, it is called substantive Ultra vires. It means that the delegated legislation goes beyond the scope of authority conferred by the parent statute or by the constitution. It is the fundamental principle of law that a public authority cannot act outside the powers i.e. ultra vires. The doctrine refers to the extent; scope and range of power conferred by the parent action the concerned authority to make rules. To be valid a rule must fulfill two conditions, they are:

It must conform to the provisions of statute under which it is framed; and
It must also come within the scope and purview of the rule making power of the authority framing the rule.

If either of these conditions is not fulfilled, the rule would be void as parliament never intended to give authority to make such rules which are unreasonable and ultra vires. A delegated legislation may be held to be invalid on the ground of substantive ultra vires in the following circumstances.

Constitutionality of Parent act
Constitutionality of parent act plays a dominant role for delegated legislation under which it is made. If the parent act, which empowers the administration to form necessary rule, bye laws, regulations or any form of delegated legislation, itself unconstitutional or Ultra vires the constitution, delegated legislation made under it is necessarily bad and will be ipso facto invalid. The parent act may be unconstitutional on the ground breach of fundamental rights, other constitutional provisions and on the ground of excessive delegation.

The supreme court of Nepal under the constitution has the power to declare the inconsistent laws void either ab initio or from the date of its decision but mostly it declares the inconsistent laws void from the date of its decision by calculating their pragmatic values.

Imansingh Gurung Vs HMG] is the first landmark decision in which the full bench of the supreme court declared section 1(3)(d) o the Military act, 1959 (2016) inconsistent with Article 11(1) which guarantees the fundamental right to equality of a citizen. The military Act, 1959, in its third amendment inserted clause (d) in section 1(3) under which all civilians were made the subject matter of Act. This clause of the Act had imposed the military law on Iman singh Gurung who was civilian. He was sentenced to 8 years rigorous imprisonment by the court marital on charges of abetting ltd co. Bharat Gurung to commit an offence under section 45(b) of the military Act 1959. He was also debarred from the trial of an ordinary court and thus his guaranteed right to equality was infringed by the impugned section of the Act. The court declared such defective and discriminatory piece of enactment null and void with effect from the date of its decision.

Delegated legislation ultra vires the constitution
Like the parent act delegated legislation can also be challenged on the ground of its constitutionality. Sometimes, parent act may not be formed unconstitutional but delegated legislation made under it may conflict with the constitution. The courts may be asked to consider the question of constitutionality of delegated legislation itself.

In Reena Bajracharya and others Vs HMG,The court declared that Rule 16.1.3 of RNAC Personnel Service Rules, 1974 null and void abinitio on the ground of ultra vires with the constitutional right to equality.

Delegated legislation is ultra vires the parent act
The validity of delegated legislation can be questioned on the ground that it is ultra vires the parent act. It has become an accepted principle of law that the delegated exercise of legislative power must be exercised in conformity with the principal power or authority. If delegated legislation does not conform exactly to the power granted or if it is in direct conflict with any provision of Act, under which it is made, it can be held invalid. Rules whether made under the constitution or a statute, must be intra vires the parent law under which power has been delegated. Thus, delegated legislation, repugnant to or in excess of or overriding the provision of parent act is ultra vires.

In Advocate Bal Krishna Neupane Vs HMG, secretariat of the council of Ministers the court declared sub-rule 4(a),(b) and (c) of Rule 3 of citizenship Rules, 1992 void abinitio as it had fixed some additional grounds except the grounds determined under the constitution and citizenship act for the acquisition of citizenship without the delegation of legislative power. The court observed that a rule making body is not competent to frame rules without the authority of law. If the rules which are made to fulfill the objective of the Act, fix some additional grounds or criteria of acquisition citizenship without the delegation of legislative power, such rules or the criteria underlying therein are ultra vires the Act and therefore void.

Delegated legislation Ultra vires the General rule
The validity of delegated legislation can be challenged on the ground that it is ultra vires the general law. It takes place, when the delegated legislation makes a law in force unlawful and unlawful act lawful.

In A.V Nachane Vs union of India, in this case the rules framed by union government under delegated authority by L.I.C with regard to bonus to class iv employees was held ultra vires since it supersedes the terms of Bonus settlement 1974.

Unreasonableness
Generally statute cannot be challenged on the ground of unreasonableness. But, in exceptional cases, it can be challenged on the ground of unreasonableness. Unreasonableness is an implied restriction on delegated legislation. It is presumed that legislature does not intend to confer power to make unreasonable rules. Therefore, such rules, which are not reasonable, may be declared ultra vires by the court. But unless a rule is manifestly unjust, capricious, inequitable or partial in operation it cannot be invalidated on the ground of unreasonableness.

If we observe the decision of supreme court, we see the cases like Keshav Bd Thapa, Dhrub Bhaktarki Vs Ministry of General Administration and others, Babu Ram poudel Vs HMG secretariat of the council of ministries, Sita Bista Keshtri Vs HMG, Ministry of Home affairs etc the petitioners have raised the voice against unreasonable restrictions imposed on their basic right by the law and supreme court has also very affectively taken the matter into concern but petitioner have challenged laws, either supreme or subordinate and begged before the court to invalidate the same on the ground of the principle of unreasonableness, as it is an implied restriction of any law. Therefore, the court has not utilized this principle in the real sense of the term.

Mala fide
Mala fide means ‘bad faith’ or ulterior motive. Delegated legislation can be challenged on the ground of mala fide, if it has no relation to the purpose for which the law making power was delegated. But in practice, it is extremely difficult to substantiate these grounds before the court. For example, under section 3(1) of D.I.A the government promulgated the Gold control rules. These rules were challenged on the ground that they did not sub serve the purpose mentioned in section 3(2). It was argued that there must be some real and proximate connection between the rules and specified purposes. There is however, no Nepali case where a statutory rule has been held invalid on the ground of mala fide.

Excessive Delegation
A statute which is invalid on account of excessive delegation, or delegated legislation which is ultra vires the statute, will not cease to be so merely because the legislature has made certain amendment to the statute not directly curing the defect.

Sub-delegation
If the Executive i.e. the delegate further delegates such power to any subordinate authority or agency it is called sub-delegation. The principle of sub-delegation is subject to criticism and not accepted, unless there is a provision express as implied, to that effect. Hence, the validity of an act under sub-delegation can be questioned ulta vires.

Procedural Ultra Vires
If the administrative authority fails to follow required procedure prescribed by parent act or by the general rule, it is known as procedural ultra vires. To apply the doctrine of Ultra vires, the first question for the courts to decide is whether the provision in the act prescribing the procedure is mandatory or directory. Rules become invalid only in the case of non compliance with the mandatory procedure. Non compliance of directory procedure does not render them invalid. So, an absolute enactment must be obeyed or fulfilled exactly but it is sufficient if directory enactment be obeyed or fulfilled substantially. Basically non compliance of following procedure declares delegated legislation void.[7]

Publication of delegated legislation
Consultaton with export body or approval of an authority
In Prakash Shrestha Vs HMG, Prime Ministers and the office of the council of Ministers, The petitioner challenged, Bye-Law 21 and Bye Law 22(1) of the Nepal Electricity Authority Administrative personnel Bye Laws, 2050 as they were inconsistent with Art 11 of the constitution, which guarantees the right to equality of all citizens.

Court issued a directory order in the name of the electricity authority to necessarily perform the task of publication for the purpose of Bye Law 22 and 27(1) of the said Bye-Laws.

Application of the rule by the Supreme Court of Nepal

Administrative Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Application of the rule by the Supreme Court of Nepal:

In Nepal the requirement of hearing is particularly observed and spelt out by the Supreme Court in connection with the fundamental rights of citizens guaranteed under the constitution. The extraordinary power of the court to review the administrative action through writs enriches the applicability of the principles of natural justice in diverse ways.

The following cases show the role of the Supreme Court in administering justice through the rule of Audi Alteram Partem:

P. Koirala v. HMG, 2016: –
It is regarded as the first landmark case in the judicial history of Nepal in which the rule of natural justice was highlighted by the court in connection with the invalid action of the executive action. Here, the court expressed, that the constitutional guaranteed right could not be taken away by an administrative order in the name of public security and welfare without providing the detainee the sufficient grounds and reasons for such detention order. The court further stated that it is the fundamental principle of law and justice that a person, against whom an action is taken, must be properly informed with reasons. Any legal proceeding if initiated against him without notice and grounds, it is a violation of the rules of justice.

Rishikesh Shah v. the Chief Zonal Commissioner, 2027: –
The Supreme Court stressed that the petitioner hold the right to know the grounds of detention as it was inherent under the equality clause of the constitution and a part of the natural justice.

Moona Acharya v. the Kathmandu District Court, 2048: –
The court stated that a concerned authority who is confiscating the property of a citizen is under the obligation to provide an opportunity to the petitioner to defend his/her case. The court further expressed, though procedural fairness is the requirement of justice, it does not mean that this requirement can be fulfilled at the disposal and convenience of the petitioner. Therefore, if a reasonable opportunity is given for a hearing, that is quiet sufficient to satisfy the requirement of natural justice.

Lalit Ratna Shakya v. Ministry of Forest and Soil Conservation, 2050: –
The Supreme Court here observed that the principle of audi alteram partem includes a reasonable amount of time to be given to the litigant to present his case, a clear statement of the charges made against him and a favorable environment in which he may state his position.

Rukma Shamsher Rana v. HMG, 2054: –
The court observed, if any action is taken against any member of the national games and sports, he is required to be given an opportunity to be heard as hearing has become an essential phenomena in the present age. Therefore, if a person is dismissed from his post without any notice and ground, there can exist the monopoly of the administration and good governance of the country can become meaningless.

Haribanta Lal Shrestha v. Managing Committee, the Nepal Bank Ltd. : –
The court once again highlighted the importance of the rule of natural justice. The petitioner in this case was debarred from the opportunity to be heard and to produce evidence in his favor. The court condemned the action of the executive and ruled that the principles of natural justice are not founded merely on formalities rather they are the meaningful rules to provide the substantive justice. They help and facilitate in providing definite, solid and concrete justice.

Krishna Prasad Pande v. HMG: –
The petitioner was detained under sec. 3(1)of the Public Security Act, 1989. He was not given the chance of hearing. Grounds for his detention were also not provided to him. The court quashed such detention order of the authority as the order was inconsistent to the principle of natural justice. The court issued the writ of Habeas Corpus to set the petitioner free.

Structure and Procedure of Quasi-Judicial Bodies/Administrative Tribunals

Administrative Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Structure

Quasi-judicial body/administrative authority exercising adjudicatory powers/administrative adjudication

(i) Not based on any uniform conventional pattern, and is derived from a statute or a statutory rule

(ii) Sometimes they are an integral part of the administration, and sometimes autonomous.

(iii) Adjudicatory powers may be given to a single individual or to a multi-member body.

(iv) Besides exercising adjudicatory powers, they may also exercise other regulatory and administrative powers.

(v) No uniform formal qualification is prescribed. Sometimes, a legal qualification is prescribed and sometimes a technical qualification

unlike courts where the structure is based on uniform pattern, and judges are required to have the necessary legal qualifications and experience, and they exercise only judicial functions.

However, there are administrative tribunals which are autonomous and their members are required to have prescribed qualifications and exercise only judicial powers.

The only difference between a court and an administrative agency exercising adjudicatory powers/administrative tribunal/quasi-judicial body seems to be the legislative classification. A court is a court because it has been classified as such, and an administrative tribunal is an administrative tribunal because it has been designated as such.

Procedure

(i) No uniform procedure which administrative tribunals are required to follow. Differs from agency to agency.

(ii) Sometimes procedure is prescribed by the statute which creates the adjudicatory authority, sometimes the agencies are left free to prescribe their own procedure

(iii) ALL of these administrative tribunals follow the rules of natural justice in adjudication.

(Courts follow a uniform, fixed statutory procedure)

(iv) Many administrative tribunals are vested with the powers of a general court for the purpose of summoning witnesses, examining them on oath, compelling the production of document, etc.

(v) Courts of law are bound by precedents, principle of res judicata and technical rules of the Evidence Act and procedural law; but administrative tribunals are not uniformly and strictly bound by them.

(vi) There is more emphasis on policy considerations, compared to a court of law which is more concerned with application of law in its decision.

(vii) Quicker, cheaper than courts usually.

Public undertaking

Administrative Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Public undertaking. An undertaking over which the public authorities directly or indirectly exercise dominant influence by virtue of their ownership, financial participation, or the rules which govern it.

Public Sector Undertaking, known as PSU, is a company in which majority of the stake (more than 50%) is owned by the Government.

An undertaking over which the public authorities directly or indirectly exercise dominant influence by virtue of their ownership, financial participation, or the rules which govern it. A dominant influence of public authorities is in particular presumed when they: a) hold the major part of the undertaking’s subscribed capital, b) control the majority of the votes attached to shares issued by the undertaking or c) are in a position to appoint more than half of the members of the undertaking’s administrative, managerial or supervisory body.

Reasons and Type of Control

Administrative Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Reasons for Control

Separation of Power. Representativeness. Constitutional supremacy. Rule of law. Not arbitrary or discriminatory.

Constitutional and Parliamentary Control
Judicial Control
Other Control Mechanisms

-Judicial Control

Constitution of Nepal 2015, Article 133. Judicial review and extraordinary jurisdiction of the Supreme Court:

Any Nepali citizen may file a petition in the Supreme Court to have any law or any part thereof declared void on the ground of inconsistency with this Constitution, because it imposes an unreasonable restriction on the enjoyment of the fundamental rights conferred by this Constitution or on any other ground, and extra-ordinary power shall rest with the Supreme Court to declare that law void either ab initio or from the date of its decision if it appears that the law in question is inconsistent with the Constitution. . .

The principles on which the constitutionality of statutes is judged and that of subordinate legislation, are different.

Judicial review grounds:

(i) Enabling act is ultra vires the constitution

If the enabling Act is ultra vires the Constitution which prescribes the boundaries within which the legislature can act, the rules and regulations framed thereunder would also be void. The enabling Act may violate the implied or express limits of the Constitution.

Mithilesh Kumar Singh v. PM Girija Prasad Koirala et al (NKP 2056) (certain sections of Land Act 2021 declared ultra vires)

(ii) Administrative legislation is ultra vires the constitution

It may happen that the enabling Act may not be ultra vires the constitution, yet the rules and regulations framed thereunder may violate any provision of the constitution.

Padam Kumar Nepali v. Council of Ministers Secretariat (NKP 2052) (some rules of Police Rules 2049 ultra vires)

Ramchandra Gautam v. Ministry of Information and Communication NKP 2052 (certain bylaws of the Gorkhapatra Corporation Employees Service Bylaws ultra vires).

(iii) Administrative legislation is ultra vires the enabling Act

– It is in excess of power conferred by enabling Act

– It conflict with enabling Act

– It is in conflict w/ the prescribed procedure of the enabling Act

– It is in conflict with the terms of some other statute

E.g. Rule 3(4) of Nepal Citizenship Rules, 2049 which prescribes additional mandatory criteria than that was prescribed by the Citizenship Act 2020, has been held invalid on grounds of conflict with the parent Act and the constitution.

(iv) If delegated legislation is mala fide

Administrative rule-making can be challenged on the ground of bad faith or ulterior purpose.

Mala fide is generally not a ground against legislature or an administrative authority exercising rule making powers

In the US, challenge on the ground or bad faith can be sustained under the Due Process clause of the constitution.

(v) Though delegated legislation as such does not attract the principles of natural justice, but it applies in the case of conditional legislation where a person is deprived of his statutory rights.

(vi) Excessive delegation: Legislature cannot delegate its essential legislative functions, it must lay down policies and principles and may delegate power to fill in details and execute policy.

Court will examine:
(a) scheme of statute including preamble,
(b) facts, circumstances and background under which statute was enacted,
(c) history of legislation,
(d) complexities of problem which State has to face,
(e) liberal construction to be given to statute, its policies and guidelines.

(vii) Unreasonable, arbitrary and discriminatory

(viii) Vagueness. E.g., does not mention the commencement date.

– Parliamentary control

Every delegate is subject to the authority and control of the principal. The exercise of delegated power can always be directed, corrected or canceled by the principal.

(i) Direct general control – through debates, questions, notices, resolutions and votes in the house

(ii) Direct special control – through ‘laying’ (presentation of) the delegated legislation before the parliament

(iii) Indirect control – parliamentary committee recommendations

-Other Control Mechanisms

-Procedural Control

To provide effective vigil over administrative rule-making, and guarantee effective people participation for better social communication, acceptance and effectivity of the rules.

Procedural control mechanism provides for specific audit of rules by those for whose consumption they are made.

(i) Drafting

The drafting of delegated legislation by an expert draftsmen who are, at the same time, in a position to advise whether the proposed rules and regulations are ultra vires is a valuable safeguard.

(ii) Antenatal publicity

Before rules are passed, the proposed/draft rules to be published in order to inform the public and take their feedback. Practice in democratic countries.

Nepal: no clear provision in law for antenatal publicity, no precedent in this regard by Nepal SC

US: Federal Administrative Procedure Act provides for the publication of proposed rules in the Federal Register.

England and India: no general provision by law, parent Act may make provisions.

(iii) Consultation

(a) Consultation with affected persons

This control mechanism makes administrative rule-making a democratic process and increases its acceptability and effectivity.

(b) Consultation with experts

Nepal: Gov of Nepal or concerned authority authorized by the Act make laws, and they do not consult with relevant experts.

(iv) Postnatal publicity

– Ignorance of law is no excuse.

– It is mandatory to publish laws, including delegated legislation made by the executive by exercising powers delegated by the legislature.

Nepal:

Rules, orders, notices, etc. made under delegated legislation is mandatorily published in Nepal Gazette.

Sec. 5 of Evidence Act, 2031 provides that judicial notice shall be taken of such published rules, orders and notices.

England- Statutory Instruments Act- Rules shall not come into force unless published.

US- Federal Register Act- Unless rules are published in the Federal Register, it cannot be enforced against any person except the one who has actual notice of it.

India- No general law prescribing the mode of publication of rules. Publication is necessary in either the Official Gazette or any ‘recognizable’ or ‘customary’ manner.

Meaning of Administrative Law

Administrative Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Administrative law

Administrative law is primarily concerned with the manner of exercising governmental power. The decision making process is more important than the decision itself. Secondly, administrative law cannot fully be defined without due regard to the functional approach. This is to mean that the function (purpose) of administrative law should be the underlying element of any definition. The ultimate purpose of administrative law is controlling exercise of governmental power. The control aspect‘ impliedly shades some light on the other components of its definition.

Austin has defined administrative law, as the law which determines the ends and modes to which the sovereign power shall be exercised. In his view, the sovereign power shall be exercised either directly by the monarch or indirectly by the subordinate political superiors to whom portions of those powers are delegated or committed in trust.

Davis who represents the American approach defines administrative law as; ―The law that concerns the powers and procedures of administrative agencies, specially the law governing judicial review of administrative action.‖

Massey gives a wider and working definition of administrative law in the following way.

“ Administrative law is that branch of public law which deals with the organization and powers of administrative and quasi administrative agencies and prescribes the principles and rules by which an official action is reached and reviewed in relation to individual liberty and freedom”

It studies powers of administrative agencies. The nature and extent of such powers is relevant to determine whether any administrative action is ultra-vires or there is an abuse of power. It studies the rules, procedures and principles of exercising these powers. Parliament, when conferring legislative or adjudicative power on administrative agencies, usually prescribes specific rules governing the manner of exercising such powers. In some cases, the procedure may be provided as a codified act applicable to all administrative agencies. It also studies rules and principles applicable to the manner of exercising governmental powers such as principles of fairness, reasonableness, rationality and the rules of natural justice.

Administrative agencies while exercising their powers may exceed the legal limit abuse their power or fail to comply with minimum procedural requirements. Administrative law studies control mechanisms like legislative & institutional control and control by the courts through judicial review.

It studies remedies available to aggrieved parties whose rights and interests may be affected by unlawful and unjust administrative actions. Administrative law is concerned with effective redress mechanisms to aggrieved parties. Mainly it is concerned with remedies through judicial review, such as certiorari, mandamus, injunction and habeas corpus.

Differences between Constitutional and Administrative Law

Therefore, Keith observed:

“It is logically impossible to distinguish administrative from constitutional law and all attempts to do so are artificial”.

However, according to Holland, “Constitutional law describes the various organs of the government at rest, while administrative law describes them in motion”

Therefore, according to this view, the structure of the legislature and executive comes within the purview of the constitutional law but there functioning comes within the sphere of administrative law.

According to Jennings– administrative law deals with the organization, functions, powers, and duties of administrative authorities while constitutional law deals with the general principles relating to the organization and powers of the various organs of the state and their mutual relationship of these organs with the individuals. In other words, constitutional law deals with fundamentals while administrative law deals with details.

Differences Between the Constitutional and Administrative Law of India

Accordingly to Keith: “It is logically impossible to distinguish administrative law from constitutional law and all attempts to do so are artificial.” But still some of the most important differences between the constitutional and administrative law of India are:

Constitutional Law:

It is the supreme and highest law of the country. No law can be regarded above the law of the constitution of India.
The constructional law is always regarded as the genus. It is the main law.
This law mainly deals with various organs of a state.
It mainly deals with the structure of the state.
It touches all the branches of law and gives guidelines with regard to the general principle relating to organization and powers of organs of the state, and their relations between citizens and towards the state.
It also gives guidelines about intentional relations.
It deals with the general principle of state pertaining to all branches.
It demarcates the constitutional status of Ministers and public servants.
It imposes certain negative duties on administrators if they are found violating the fundamental rights of the citizens and etc. It also imposes certain positive duties on administrators, viz, implementation of social welfare schemes.
The constitutional laws have complete control over the administrative law and administrators of the country.

Administrative Law:

It is not the supreme law of the country rather it is subordinate to the constitutional law.
Administrative law is the species of constitutional law.
It deals with the organs of the state as motion.
It mainly deals with the various functions of the state.
It doesn’t deal with all branches of law, rather it details with the powers and functions of administrative authorities.
It does not deal with international law. It deals exclusively with the powers and functions of administrative authorities.
It deals with the powers and functions of administrative authorities, including services, public departments, local authorities and other statutory bodies exercising administrative powers, quasi-judicial powers, etc.
It is concerned with the organization of the services or the working of the various government departments.
The administrators have to follow constitutional law first and next to the administrative law.
The administrators should perform their functions with utmost obedience to constitutional law. Administrative law is just a subordinate to constitutional law.

Definition

On his part, Foulks: Administrative law 7th edition, page 1, defines:
Administrative law is the law relating public administration. It is concerned with the legal forms and constitutional status of public authorities; with their powers and duties and with the procedures followed in exercising them; with their legal relationships with one another, with the public and with their employees; which seek, in varied ways, to control their activities.

H.W.R.Wade & C.F.Forsyth, (1994), Administrative law, 7th edition

In his view, Wade: Administrative law 7th edition pg 4, defines Administrative law in the following words:

A first approximation to a definition of Administrative law is to say that “it is the law relating to the control of government power”

Wade asserts “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. The powerful engines of authority must be prevented from running ‘amok’.” Wade further contends that “abuse”, it should be made clear, carries no necessary innuendo of malice or bad faith. He further elaborates this by stating that government departments may misunderstand their legal position as easily as many other people and the law which they have to administer is frequently complex and uncertain. Abuse is therefore inevitable, and it is all the more necessary that the law should provide means to check it. In addition to this, Wade further asserts that it is also the concern of administrative law to see that public authorities can be compelled to perform their duties if they make default. At page 5, Wade tries to distinguish functions of Administrative law from the structure by giving a second approximation to a definition of Administrative law. He thus states “It may be said to be a body of general principles which govern the exercise of powers and duties by public authorities”. In this regard, Wade contends that “the whole of Administrative law may indeed be treated as a branch of Constitutional law since is flows directly from the constitutional principles of the rule of law, the sovereignty of parliament and the independence of the judiciary; and, it does much to determine the balance of power between the state and the citizens.” To this extent, Wade further asserts, “As liberty is subjected, justice must be added. That the more power the government wields, the more sensitive its public opinion to any kind of abuse or unfairness. The machinery of Administrative justice therefore combines Administrative authorities, Administrative functions, judicial control and how that control and authority can be exercised.

It is important to note is that the whole essence of Administrative law is to advocate for or uphold natural justice most especially for public servants or any other person appearing before an administrative tribunal.

Rule of Law

Administrative Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

The expression ―Rule of law‖ plays an important role in administrative law. It provides protection to the people against the arbitrary action of the administrative authorities. The expression rule of law‘ has been derived from the French phrase ‗la principle de legalite‘, meaning a government based on the principles of law. In simple words, the term ‗rule of law, indicates the state of affairs in a country where, in main, the law rules. Law may be taken to mean mainly a rule or principle which governs the external actions of human beings, and which is recognized and applied by the state in the administration of justice.

Procedural Elements
Almost all administrative lawyers or anyone embarking a research on this dynamic concept usually starts to treat the subject by espousing the approach and definition given to it by the renowned English constitutional lawyer, Dicey. (1888)gave the most influential definition of rule law which mainly comprises the following three elements.

A. The supremacy of Law (Principle of Legality)
For Dicey (1888 🙂 the primary meaning of rule of law is supremacy of the ordinary laws of the land over the actions of public officials and administrative agencies. He writes:
It means, in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even wide discretionary authority on the part of the government.

Hence, one aspect of the concept of rule of law is absolute predominance, or supremacy of law over arbitrary, government actions. Simply stated, it means every administrative action that should be taken according to law. Applied to the powers of government, this requires that every government authority which does some act which would otherwise be a wrong (such as taking a man‘s house), or which infringes a man‘s liberty (as by refusing him a trade license), must be able to justify its action as authorized by law. An administrative agency or public official is required to justify its action by clearly establishing that it is expressly or impliedly empowered or authorized by act of the parliament (i.e. proclamation issued by the House of People‘s Representatives). This means also that in the absence of any authority, the affected party whose rights and liberties have been violated as a result of the action of government, should be able to take the case to court and have it invalidated.

However, acting according to law does not satisfy the meaning of rule of law in the presence of wide discretionary powers. Parliament may confer on the specific administrative agency, wide discretionary powers that enables the agency to take unpredictable and in some cases of the arbitrary actions. Hence, the government should be conducted within the framework of the recognized rules and principles that restrict discretionary power. In many countries, typically in England, many of the rules of the administrative law are rules for restricting the wide powers, which acts of parliament confer very freely on ministers and other authorities.

B. Principle of Equality
“ . . .It means equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts.”
One meaning of the above statement is that disputes, as to the legality of acts of government, are to be decided by judges who are independent of the executive. This aspect of the rule of law, which is typical characteristics of English administrative law, is largely based on the principle of the separation of powers which prohibits interference among the three government branches, Hence, not only civil cases, but also administrative disputes that should be adjudicated by the ordinary courts; not by the separate administrative courts.
In France, the same principle of separation of powers resulted in a totally opposite conception of the rule of law. According to French administrative law ( droit adminstratif), disputes between the individual and the government are settled by separate administrative courts, the conseil de etat being the supreme administrative court. It is said that this system was developed in France based on the strict interpretation of the separation of powers. Dicey emphatically rejected the French system of the administrative law (droit adminstratif). because of his emphasis on the ordinary law courts as opposed to any specialized administrative law courts as ultimate arbiter of disputes between the government and the individual.
Another aspect of the principle of equality is that the issue that states the law should be even- handed between government and citizen. In other words, those laws governing the relationship between individuals should also similarly be applicable to the relationship between individuals and government. This implies that government officials should not entertain different, or special privileges. However, the intensive form of the government and the complexities of administration sometimes necessitate granting special powers (privileges) to the government. What the rule of law requires is that the government should not enjoy unnecessary privileges, or exemptions from the ordinary law.

C. Constitution Is a result of the Ordinary Law of the Land
“ It means the constitution is the result of the ordinary law as developed by the courts through the common law tradition and provides for the legal protection of the individual not via a bill of rights, but through the development of the common law”
The rule of law lastly means that the general principles of the constitution are the result of judicial decisions of the courts in England. In many countries rights such as right to personal liberty, freedom from arrest, freedom to hold public meetings are guaranteed by a written constitution. However this is not so in England. These rights are the result of judicial decisions in concrete cases that have actually arisen between the parties. The constitution is not the source but the consequence of the rights of the individuals. Thus, Dicey emphasized the role of the courts as ultimate guarantors of liberty.

Substantive Elements
The modern concept of the rule of law is fairly wide and, therefore, sets up an ideal for government to achieve. This concept was developed by the international commission of jurists, known as Delhi Declarations, in 1959, which was later on confirmed at Logos in 1967. According to this formulation, the rule of law implies that the functions of government in a free society should be exercised so as to create conditions in which the dignity of man, as an individual, is upheld.
In recent years, wide claims have been made as to the proper sphere of rule of the law. The presence of representative democracy, beneficial social and economic services and conditions, personal independency (privacy) and independent judiciary has all been taken as indicators and elements of the rule of law. One way to understand the concept is making a contrast between the two approaches which are the ‗formal‘ and ‗substantive‘ (ideological) versions of the rule of law. The former is not much more than the principle of legality, and the latter insists on a wide range of positive content.

Rule of Law as a Foundation of Administrative Law
In simple terms, the rule of law requires that government should operate with in the confines of the law; and that aggrieved citizens whose interest have been adversely affected be entitled to approach an independent court to adjudicate whether or not a particular action taken by or on behalf of the state is in accordance with the law. In these instances, the courts examine a particular decision made by an official, or an official body to determine whether it falls with in the authority conferred by law on the decision maker. In other words, the courts rule as to whether or not the decision is legally valid. It is in this way that the principle of rule of law serves as the foundation of the administrative law. It has been repeatedly said that the basic purpose of the administrative law is to control excessive and arbitrary governmental power. This purpose is mainly achieved through the ordinary courts by reviewing and checking the legality of any administrative action. Therefore, administrative law as a branch of law, is rooted in the principle of the rule of law. This principle mainly stipulates that every administrative action should be according to law. The different control mechanisms of power in administrative law by preventing government not to go beyond the authority granted to it by law ensure that rule of law is respected.
Hence, the expression ―Rule of Law‖ plays an important role in administrative law. It provides protection to the people against arbitrary action of the administrative law.
To clearly understand the relationship between the rule of law and the administrative law, it is important to examine a related doctrine of the administrative law, which is the doctrine of ultra virus. The doctrine to some extent is a derivation of the principle of the rule of law. The former underlines that power should be exercised according to law. The later, goes one step further and states that an action of any official or agency beyond the scope of power given to it is ultra virus (i.e. beyond power), hence it is considered as null and void. An ultra virus act does not have any binding effect in the eyes of the law.
The simple proposition that a public authority may not act outside its powers (ultra virus) might fitly be called the central principles of the administrative law. The juristic basic of judicial review is the doctrine of ultra virus. According to Wade & Forsyth an administrative act that is ultra virus or outside of jurisdiction (in case of action by administrative court) is void in law, i.e. deprived of any legal effect. This is, in order to be valid, it needs statutory authorization, and if it is not within the powers given by the act, it has no legal leg to stand on it. Once the court has declared that some administrative act is legally a nullity, the situation is as if nothing has happened. Administrative law by invalidating an ultra virus act ensures that every administrative action is in conformity with the law; indirectly guaranteeing the observance of rule of law.

Rule of law as a foundation of the administrative law has been briefly explained above. But at the same time, you should also be aware of the fact that the principle also serves as a limitation on the scope of administrative law.
It has been clearly pointed out in chapter one that the proper scope of the administrative law is procedure, not substance. This means, it is concerned with the decision-making procedure (how power is exercised), rather than the decision itself. To a wider extent the study of the administrative law has been limited to analyzing the manner in which matters move through an agency, rather than the wisdom of the matters themselves. Whether a certain decision is right is not a matter to be investigated under the administrative law, rather it should be left to the decision-making agency since it purely involves policy considerations. Similarly, the principle of the rule of law does not go to the extent of ensuring whether a certain agency‘s decision is right or wrong. Its primary meaning is attached to the principle of the legality or the superiority of law. Its concern is to ensure that a administrative action is taken according to law.
The court, in reviewing an administrative action, is expected to see or examine the legality of the action only. In judicial review, the judges do not substitute their own discretion and judgment for that of the government. They simply rule whether the government or its officials have acted within the ambit of their lawful authority. Thus, the judges do not ―govern‖ the country, and do not ―displace‖ the government when government decisions are challenged in the courts.
The principle of the rule of law, by limiting its scope only to legality, or in some cases to fairness of the administrative action, simultaneously serves as a limitation to the scope of the administrative law.

Audi alteram partem

Administrative Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Audi Alteram Partem (Right to Hearing)

As lord Denning “if the right to be heard is to be a real right which is worth anything if must carry with it a right in the acussed man to know the case which is made against him.” The development of audi alteram partem principle has like many other legal concepts been eclectic. An early group of cases was concerned with deprivation of offices requiring notice and a hearing prior to deprivation. Another somewhat later group involved in the clergy penalties or disciplinary measures to which the clergy were subjected had to be preceded by notice and a hearing. In 19th century the audi alteram partem principle was applied to wide variety of bodies’ private as well as public clubs, associations and trade unions were included within its ambit. The increase in the regularity role of public authorities provided further opportunity for the generalized application of maxim. Thus in cooper v wandsworth board of works it was held that the demolition powers vested in the defendant Board were to be subject to notice and hearing requirements. The generality of application of audi alteram partem maxim and its flexibility in operation were brought out by Lord Loreburn L.C who stated that the maxim applied to everyone who decides anything while recognizing also that the manner in which a person’s case was heard did not necessarily have to be the same as an ordinary trial.

To be a fair hearing an assumption is made that there must be three rights:

Sufficient notice is given to allow the case to be adequately prepared
That at any hearing a person will be entitled to know what evidence has been produced against him or her.
There must be proper opportunity to contest correct or contradict any such evidence to sates one’s case and raise any relevant matters before the tribunal.
to an opportunity to reply in a way that is appropriate for the circumstances
for his/her reply to be received and considered before the decision is made
to receive all relevant information before preparing his/her reply
to a reasonable chance to consider their position and prepare a response. However, what is reasonable can vary according to the complexity of the issue, whether an urgent decision is essential or any other relevant matter, and
to genuine consideration of any submission. The Delegate needs to be fully aware of everything written or said by the clearance subject, and give proper and genuine consideration to his/her case.

In addition a fair hearing may also include being provided with legal representation, the right to cross examination, witness or reasons for a decision.

It means, Hear the other side, or both the sides, It is the first principle of the civilized jurisprudence that a person, against whom any action is sought to be taken or whose right or interest beinf affected should be given a reasonable opportunity to defend himself hearing, means a fair hearing.

This is basic requisition of rule of law; it has been described as fundamental and foundation concept. The situations of cases of different nature, as the norms of fair hearing can vary from body to body and cases to case there is no rigid formula or invariable standard to deal with the concept of fair herring like tight to notice , right to present case and evidence, right to rebut evidence through cross examination and legal representation or right o council, reasoned decision , specking order, institutionalized or one who decides must hear , rule against dictation, financial incapacity to attend the inquiry officers report etc, these decision principles as not embodied rules contemplated in a single frame work nor are they flexible in number with certain limitation . Components of fair hearing are

Notice–before any action is taken, the effected party must be given a notice to show cause against the proposed action and seek his explanation ,it is a sine qua non of the right of fair hearing and any passed with out giving notice is against the principle of nature justice is void in ab initio.

Hearing- A basic principle of the natural justice is that before of the adjudication starts the authority concerned should of the cases against him and the action purposed to be taken against him so that he may accurately defendant, notice is the first and extremely important step in haring procedure, any proceeding taken without notice would violate natural justice and would be invalid.

The doctrine of ‘audi alteram partem’ is the basic notion of the principle of natural justice. The doctrine says that no one should be condemned unheard. In the field of administrative decisions, this principle has been applied to unsure fair play and justice to affected persons.

The right to a fair hearing requires that individuals are not penalized by decisions affecting their rights or legitimate expectations unless they have been given prior notice of the cases against them, a fair opportunity to answer them, and the opportunity to present their own cases.

Administrative agencies are not bound by the technical rules of procedure of law courts; this accentuates the need to follow the minimum procedure of fair hearing.

(i) Right to Notice

Notice=information=knowledge

Notice embodies rule of fairness, and must precede an adverse order. Adequate time must be given to respond. If requirement of notice is a statutory requirement, then notice must be given in a manner provided by law.

Notice is the starting point of any hearing. Unless a person knows the formulation of subjects and issues involved in the case, he cannot defend himself. Notice must also be adequate, which generally means it must state: (i) time, place and nature of hearing, (ii) legal authority under which the hearing is to be held, and (iii) specific charges which the person has to meet.

Gajendra Bahadur v. District Land Reform Office Kathmandu (NKP 2050, p. 671)- Decision cannot be taken in the absence of the concerned party, by merely publishing notice in a newspaper, without duly serving notice pursuant to the law.

(ii) Right to know evidence against him

Every person before an administrative authority exercising adjudicatory powers has the right to know the evidence to be used against him.

Nothing should be used against the person, which has not been brought to his notice.

(iii) Right to present case and evidence

The adjudicatory authority should afford reasonable opportunity to the party to present his case. This can be done orally or through writing.

Nyuchhemaya Tuladhar v. Rupandehi Dist. Court (NKP 2050, p.231)- Where proceedings required inclusion of registered persons other than the borrower, and the auction notice which was published did not include such registered persons, therefore, the proceeding requiring such registered persons to make payment without the opportunity to be heard is against the principle of natural justice. SC order Rupandehi and Ktm dist courts to issue notices to the registered persons.

(iv) Right to rebut adverse evidence
It is not enough that the party should know the adverse material on file but it is further necessary that he must have an opportunity to rebut the evidence. Rebuttal can be done either orally or in writing.

The opportunity to rebut evidence necessarily involves the consideration of two factors: cross-examination and legal representation.

Cross-examination: Courts do not insist on cross examination in administrative adjudication, unless the circumstances are such that in the absence of it a person cannot put up an effective defence.

Legal Representation- A fair hearing in administrative proceeding will not necessarily include the right to legal representation. Representation will, however, normally be permitted.

(v) No evidence should be taken at the back of the other party

Whatever information (evidence) is obtained by the administrative authority must be disclosed to the other part, and an opportunity to rebut it must be provided.

(vi) Report of enquiry to be shown to the other party

In very many cases, especially in disciplinary matters, it happens that the inquiry is entrusted to someone else and on the report being submitted, action is taken by the competent authority.

A copy of the report of the inquiry officer should be supplied to the affected party before the authority takes a decision on the guilt and the consequential punishment on the basis of the report of the inquiry officer.

(vii) Reasoned Decision or Speaking Orders

Kalar Thakur Hajam v. District Land Reform Office Saptari (NKP 2043, p.304)-

An official with authority to take a judicial or quasi-judicial decision, while deciding, must consider evidence and decide by giving reasons for the decision.

Use of judicial conscience – The SC of Nepal at times uses the term ‘judicial conscience’, similar in meaning to reasoned decision.

(viii) One who must hear must decide, or Institutional Decision

The term institutional decision is popular in American law.

Unlike law courts, the decision in many administrative proceedings is not the decision of one man from start to finish. Often one person hears and another decides. The divided responsibility may work contrary to the concept of fair hearing.

Whatever may be the merit of this rule, the fact remains that in view of the complexity of modern administration, a literal application of this rule will bring the wheels of administration to a grinding halt. Thus, the person or authority charged with the responsibility of taking a decision may take help from subordinates, but be must be personally consider and appraise the evidence and independently come to a decision.

(ix) Rule against dictation

Any administrative authority invested with the power of decision-making must exercise this power in exercise of its own judgment. If a decision is taken at the direction of any outside agency, there is violation of fair hearing.

(x) Decision post-haste

Fundamentals of fair hearing demand that the administrative authority must not rush decision. It may compromise procedures related to fair hearing.

Exceptions to the Rule of Natural Justice (situations when these rules do not apply)

(i) Emergency

In cases of emergency where prompt action, preventive or remedial, is needed, the requirement for notice and hearing may be removed.

(ii) Confidentiality

Eg., access to police surveillance register

(iii) Purely administrative matters

In Nepal,

The principles of natural justice apply to only judicial and quasi-judicial decisions. The discretion of HMG to grant approval for prosecution of corruption related allegations is a purely administrative function and not a quasi-judicial function, and hence, the principle of natural justice do not apply to it. – Mukti Sharma v. Tek Bahadur (NKP 2017, p.101).

The rule was reinforced in the case of Yagyamurti Banjade v. Durga Das Shrestha (NKP 2027, p.157), where the court expressed the difference between judicial, quasi-judicial and purely administrative, and held that the rule of natural justice must be adopted in quasi-judicial decisions, not in purely administrative decisions.

(iv) Based on Impracticability

If it is administratively impracticable to ensure fair hearing to all (usually very larger numbers) of affected persons.

(v) Interim preventive action

If the action of the administrative authority is a suspension order in the nature of a preventive action and not a final order, the application of the principles of natural justice may be excluded.

(vi) Legislative action

Legislative action, plenary or subordinate, is not subject to the rules of natural justice because these legislation lay down a policy without reference to a particular individual.

(vii) Where no right of the person is infringed

Where no right has been conferred on a person by any law, the principles of natural justice are not applicable.

(viii) Statutory Exception or Necessity

Disqualification on the ground of bias against a person will not be applicable if he is the only person competent or authorized to decide that matter or take that action.

(ix) Contractual Arrangement

Termination of an arrangement/agreement is neither a quasi-judicial act, so the duty to act judicially is not attracted.

(x) Government Policy Decision

If in exercise of executive powers the government takes any policy decision, principles of natural justice can be excluded because it will be impossible and impracticable to give formal hearing to all those who may be affected whenever a policy decision is taken and at times it will be against the public interest to do so.

(xi) Useless formality theory

Where on the admitted or undisputed facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not insist on the observance of the principles of natural justice.

(xii) Disciplinary Action

In public or govt. services, especially army and police, to enforce discipline

But usually not total exclusion of natural justice rules.

Reasons for Growth of Delegated Legislation

Administrative Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Delegated legislation is not a new phenomenon. Ever since the statutes came to be made by Parliament, delegated legislation also came to be made by an authority to which power was delegated by Parliament- The Statue of Proclamation, 1539 under which Henry VIII was given extensive powers to legislate by proclamations. There was, and always will be, the need for delegated legislation.

The exigencies of the modern state, especially social and economic reforms, have given rise to delegated legislation on a large scale, so much so that a reasonable fear arises among people that they are being ruled by the bureaucracy.

Modern welfare and service state.
Lack of Time (of legislature)
Lack of Technicality on Subject-matter (of legislature)
Need for Flexibility -easier to make changes than to Acts
Need for Confidentiality until law comes into operation- legislative process may compromise confidentiality
Emergency situation- legislature may not be in session or naturally too slow to respond.

Preventive Measure- to prevent adverse situations, administration is most effective

Reasons for the Growth of Administrative agencies/ Administrative Adjudication

Administrative Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Agencies are created and assigned specific tasks by the legislature. They carry out the tasks making decisions of various sorts and supervising the procedure by which the decisions are carried out. There are many reasons why administrative agencies might be needed. Almost every governmental agency has been created because of a recognized problem in society, and from the belief that an agency may be able to help in solving the problems. The following are the main reasons for the creation of the administrative agencies.

A. Providing Specificity
The legislative branch of government cannot legislate in sufficient detail to cover all aspects of many problems. The house of the people‘s representatives cannot possibly legislate in minute detail and, as a consequence, it uses more and more general language in stating its regulatory aims and purposes. For instance, the house of people‘s representatives cannot enact a tax law that covers every possible issue that might arise. Therefore, it delegates to the council of ministers and ministry of revenue the power to make rules and regulations to fill in the gaps, and create the necessary detail to make tax laws workable. In many areas, the agency has to develop detailed rules and regulations to carryout the legislative policy.
It is also true that courts could not handle all disputes and controversies that may arise. They simply do not have the time or the personnel to handle the multitude of cases. For instance, the labour relations board entertains and resolves so many number of collective labour disputes between employees and employers. Similarly, the tax appeal commission and the welfare (pension) appeal tribunal adjudicate and decide vast number of administrative litigations within their jurisdiction. The creation of such adjudicatory agencies (usually known as quasi- administrative agencies) is necessary, because of the fact that they have, specialized knowledge and expertise to deal effectively with the detailed, specific and technical matters, which are normally beyond the competency of judges of ordinary courts.

B. Providing Protection
Many government agencies exist to protect the public, especially from the business community. Business has often failed to regulate itself, and the lack of self- regulation has often been contrary to the public interest. For instance, the Environmental Protection Agency is created to regulate environmental pollution. In the absence of such agency, business could not voluntarily refrain from polluting the environment. The same can be said with respect to quality of private higher education and unjustified and unreasonable increase in the price of essential goods. The Ministry of Education and Ministry of Trade and Industry, regulate respectively both of these cases to protect consumers and the public at large.

C. Providing Services
Many agencies are created simply out of necessity. If we are to have roads, the Nepal Roads Authority is necessary. Welfare programs require government personnel to administer them. Social security programs necessitate that there should be a federal agency to determine eligibility and pay benefits. The Nepal Social Security Authority is established to process pension payment and to determine entitlement to such benefit. The mere existence of most government programs automatically creates new agencies or expands the function of the existing ones.

The following may be summarized as purposes of the administrative agencies.

A) Regulation
One of the key reasons for regulating economic activities by the government is the inability of business to regulate itself. When the government decides to regulate a certain sector, it entrusts the task to the administrative agencies. Agencies offer several advantages over regulation through the legislature and courts in the management of complex and technical regulatory problems. Because they are specialized bodies, they can consider technical details more effectively than the legislature.
When the government regulates business its aim is to minimize the negative impacts of a free economy. In the absence of regulation, business does not respond to concerns over the environment and consumers. Some of the justifications for regulation include:

To control monopoly power
Agencies are often created to replace competition with regulation. In this case the agency may determine rate (e.g. transportation, or electricity). Sometimes the difference in bargaining power may be a ground for regulation, avoiding monopoly power of one party. Such instances include regulation of banking, insurance and labour relations.

To control excess profit
The agency regulates business to ensure that business is not collecting excess profit, which may endanger the laws of free market and also may pose a danger to consumers.

To compensate for externalities
―Externalities‖ occasionally referred to as ―spillovers‖, that occur when the cost of producing something does not reflect the true cost to society for producing the goods. One example is manufacturing process that creates air pollution for which society pays the clean up costs. A business organization, unless otherwise it becomes sure that there is also corresponding participation by other companies, will not install costly pollution control equipment. Doing so will drive up that company‘s costs which makes it unable to compete with other companies in producing the same product without equipment and selling their products at a lower price. So, some entity i.e. a government agency must require all companies to make those investments (installing equipments) in order to spread the costs of pollution control over the entire industry..

To compensate for inadequate information
Compensating for inadequate information is a justification for a great deal of legislation for consumer protection. Purchasers of food, for instance, cannot analyze the nutritional content or the health hazards of various food products so that there has to be some organ that ensures these tests are fulfilled.

To compensate for unequal bargaining of powers
Contracts between banks & customers, insurers & the insured, employees & employers are adhesive in their nature. Either the consumer has to take it or leave it. Hence, it becomes self-evident to regulate and set minimum standards to minimize the effect of unequal bargaining of power.

B) Government exactions
In addition to regulation, administrative agencies may also engage in government exactions. Government exactions are the traditional powers and responsibilities of agencies. Such functions include collection of tax and military conscription.

C) Disbursement of money or other commodities
This purpose of administrative agencies is also the prominent one which characterizes the welfare state. In this regard, through the social security programme and other government systems of insurance or compensation, agencies disburse public money as payment of pensions for veterans or assistance for the aged, the disabled, the unemployed and generally the needy. The payments may be directly through cash or food rations.

D) Provision of goods and services
Nowadays, the government is in charge of building and maintaining roads, high ways and dams, the provision of police force and other protective services. Funding public education and the health service may also be mentioned as additional examples. More recent additions include mass transit communications, satellite systems, government research and development programmes, public hospitals and public housing.

Other Reasons

i) Intensive form of government; welfare state

(ii) Informal, cheap and quick vs. expensive, time-consuming litigation in court

(iii) Expertise, specialization and experimentation needed to develop and apply new public law standards

(iv) Growing emphasis on preventive justice rather than punitive justice

(vi) To reach decisions not strictly according to law as such, but on the ground of policy considerations and mutual give and take

(vii) Courts are groaning under the weight of pending cases and if the whole mass of fresh litigation arising in an intensive form of government is diverted to them, the judicial system would virtually collapse

Scope and Classification of Delegated Legislation

Administrative Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

It is accepted at all hands that a rigid application of the doctrine of non delegability of powers or separation of powers is neither desirable nor feasible in view of the new demand on the executive. The new role of the welfare state can be fulfilled only through the use of greater power in the hands of the government, which is most suited to carry out social and economic tasks. The task of enhancing the power of the government to enable it to deal with the problems of social and economic reconstruction can be effectively and efficiently accomplished through the technique of delegation of legislative power to it. Thus it can be clearly observed that pragmatic considerations have prevailed over theoretical objections.
Therefore, the position has been shifted from one of total objection to the issue of the permissible limits of valid delegation. Legislative delegation raises the issue of delegable and non-delegable legislative powers. There is no agreed formula with reference to which one can decide the permissible limits of delegation. However, as a rule, it can be said that the legislature cannot delegate its general legislative power and matters dealing with policy.
The legislature after formulating the fundamental laws can delegate to administrative agencies the authority to fill in gaps which is an authority necessary to carry out their purposes. The matters which are appropriate for delegation are such matters as procedures for the implementation of the substantive provisions contained in the principal legislation. This indicates that only the subsidiary part of the legislation could be delegated to administrative agencies so as to enable them to fill any available gaps;i.e. the legislative body ought to state an intelligible principle and that the executive branch would merely fill in the details. Subordinate legislation can cover only subject matters delegated expressly in the principal legislation.

Delegation of some part of legislative powers has become a compulsive necessity due to the complexities of modern legislation.
Essential legislative functions cannot be delegated by the legislature.
After the legislature has exercised its essential legislative functions, it can delegate non-essentials, however, numerous and significant they may be.
The delegated legislation must be consistent with the parent act and must not violate legislative policy and guidelines. Delegatee cannot have more legislative powers than that of the delegator.

Definition

When an instrument of a legislative nature is made by an authority in exercise of power delegated or conferred by the legislature, it is called subordinate legislation or delegated legislation. Halsbury’s Laws of England, 4th ed.

Delegated legislation is that which proceeds from any authority other than the sovereign power, and is, therefore, dependent for its continued existence and validity on some superior or supreme authority. Salmond.

Scope
Delegated legislation must not:

(i) exceed the parent/enabling Act made by the legislature

(ii) conflict with the enabling Act, and

(iii) alter the necessity, special features, make or polices of the Act.

Forms

Title based classification
Discretion based classification
Purpose based classification
Authority based classification
Nature based classification

Title based classification
(i) Rule– A rule made under any Act, and includes regulation made similar to a rule under any Act . – Nepal Law Interpretation Act, 2010.

The law or rule made by the executive or other concerned authority in exercise of power conferred by the legislature in an Act for fulfillment of the objectives of the Act.

(ii) Regulation– The term relates to a situation where power is given to fix the date for the enforcement of an Act or to grant exemptions from the Act or to fix prices, etc. (more of substantive nature).

(iii) By-law– Regulations, ordinances, rules or laws adopted by an association or corporation or the like for its internal governance. By laws define the rights and obligations of various officers, persons or groups within the corporate structure and provides rules for routine matters such as calling meetings and the like.- Black’s Law Dictionary.

(iv) Order– This term is used to cover various forms of legislative and quasi-judicial decisions. Orders may be specific or general. The former refers to administrative action while the latter refers to administrative rule-making.

(v) Direction-It is an expression of administrative rule-making under the authority of law or rules or orders made thereunder. These may be recommendatory or mandatory. If mandatory, these have the force of law.

(vi) Scheme: The term refers to a situation where the law authorizes an administrative agency to lay down a framework within which the detailed administrative action is to proceed.

Discretion based classification
(i) Contingent or conditional legislation

A statute that provides control but specifies that they are to go into effect only when a given administrative authority finds the existence of conditions defined in the statute itself. It is fact-finding, not discretionary.

Such as,

future applicability left to the subjective satisfaction of the delegate as to indicating the proper time
Act enforced but power to withdraw the same from operation delegated to satisfaction of the delegate.
Power exercisable upon the delegate’s satisfaction of objective facts by a class of people seeking benefit of the exercise of such power to deprive the rival class of persons of statutory benefits.

Last category of conditional legislation attracts the principles of natural justice.

Though delegated legislation as such does not attract the principles of natural justice, but it applies in the case of conditional legislation where a person is deprived of his statutory rights.

Contingent legislation classification is linked with the case of Field v. Clark (US, 1892)

(ii) Subordinate legislation

The process consists of the discretionary elaboration of rules and regulations.

The distinction is one of discretion. ‘It may be noted that this distinction is hardly real. In contingent legislation also, a certain amount of discretion is always present. The contingent legislation formula is a fiction developed by the U.S. Supreme Court to get away from the operation of separation of powers.

Whereas conditional legislation contains no element of delegation of legislative power and is, therefore, not open to attack on the ground of excessive delegation, delegated legislation does confer some legislative power on some outside authority and is, therefore, open to attack on the ground of excessive delegation.

Purpose based classification
On the basis of different purposes it is made to serve.

(i) Enabling Act: such Acts contain an ‘appointed day’ clause under which the power is delegated to the executive to appoint a day for the Act to come into operation.

(ii) Extension and Application of Act: extension and application of Act in respect of a territory or for a duration of time or for any other such object.

(iii) Dispensing and Suspending Acts: power is delegated to the administrative authority to make exemptions from all or any provision of the Act in a particular case or class of cases or territory, when at the discretion of the authority, circumstances warrant it.

(iv) Alteration Acts: Alteration is a broad term and includes both modification and amendment.

The power of modification is limited to consequential changes, but if overstepped it suffers challenge on the ground that it is not within the legislative intent of modification.

Sometimes includes the power to remove difficulties so that the various statutes may coexist.

Amendment- e.g. power to change the schedule of an Act.

(v) Taxing Act: The policy of the taxing statute must be clearly laid down by the legislature.

(vi) Supplementary Acts: Power is delegated to the authority to make rules to carry out the purposes of the Act.

(vii) Approving and Sanctioning Acts: Power is delegated not to make rules, but to approve the rules framed by another specified authority.

(viii) Classifying and Fixing Standard Acts: Power is given to administrative authority to fix standard of purity, quality or fitness for human consumption. Courts have upheld on grounds of necessity.

(ix) Penalty for Violation of Acts: Power may be delegated to administrative authority to prescribe punishment for violation of rules.

(x) Clarify the provisions of the statute’ Act: Power is delegated to the administrative authority to issue interpretation on various provisions of the enabling Act.

Authority based classification
Based on the position of the authority making the rules.

Sub-delegated legislation: When the rule-making authority delegates to itself or to some other subordinate authority a further power to issue rules, such exercise of rule-making power is known as sub-delegated legislation.

Rule-making authority cannot delegate power unless such power of delegation is contained in the enabling act. Such authorization may be either express or by necessary implication.

Maxim ‘delegatus non potest delegare’ indicates that sub-delegation of power is normally not allowable, though the legislature can always provide for it.

If the authority further delegates its law-making power to some other authority and retains a general control of a substantial nature over it, there is no delegation as to attract the doctrine of ‘delegatus non potest delegare.’

The maxim was originally invoked in the context of delegation of judicial powers and implied that in the entire process of adjudication, a judge must act personally except in so far as he is expressly absolved from his duty by a statute.

Sub-delegation in very wide language is improper and some safeguard must be provided before the delegate is allowed to sub-delegate his power.

Nature-based classification
On the basis of nature and extent of delegation

(i) Normal delegation

(a) Positive- where the limits of delegation are clearly defined in the enabling Act.

(b) Negative- where power delegated does not include power to do certain things, i.e., legislate on matters of policy.

(ii) Exceptional delegation

Instances of exceptional delegation may be:

power to legislate on matters of principle
power to amend Acts of Parliament
power conferring wide discretion that is almost impossible to know the limits
power to make rules without being challenged in a court of law