TyroCity: Administrative Law Notes

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

Judicial review on the abuse of Administration discretion

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

Abuse of administrative discretion
In the word of Justice Douglas of the US Supreme court: where discretion is absolute, man has always suffered … absolute discretion … is more destructive of freedom than any of man’s other inventions. And also absolute discretion like corruption , marks the begging of the end of liberty. It thus becomes necessary to devise ways and means to minimize the danger of absolute discretion. To achieve objectives a multipronged strategy has to be adopted.

The abuse of administrative discretion can be through 4 different ways as numbered below:

Improper purposes

It is unlawful to use a discretionary power to achieve a purpose other than that for which the power was conferred.

Irrelevance

Just as grant of power may specify the purpose to which they may be applied, so they may also indicate consideration which are to be taken into account on the exercise of the power. A failure to take those consideration into account can be ultra vires . the court have also held that the taking into account of irrelevant consideration can render the exercise the power unlawful.

Bad faith

As a nothing that an administration authority has not acted in good faith is such a serious thing. It is not surprising that it is a rare ground of review. Megaw LG. has suggested that bad faith involves dishonesty. Yet it is difficult to think of an example in which a dishonest exercise of power would not the consideration of an irrelevant purposes or seeking of an improper purpose.

Unreasonableness

In many cases decided that the discretion should be reasonable as well as in accordance with law and discretion should not be arbitrary. The cases are as follows: R v. commissioner of Fens(1666) 2 keb.43, Westminister Corporation v. L and NW Railway (1905) AC 426 at 430, and lord Macnaghten said that, “ nobody, of course, can dispute that the government or the board had a discretion in the matter. But it was not an arbitrary discretion… It was a discretion to be exercised reasonably, fairly and justly.”

Substantive review

Illegality is concerned with keeping authorities within their power, whereas irrationality insures that there is no breach of substantive principles which are independent of those in the statute, even if the decision or action is technically inside the scope of the legislative scheme.

Judicial review on the abuse of administrative discretion

To exercise statutory power reasonably, in good faith, and on correct ground. The courts are still working within the bounds of familiar principle of ultra vires. The analysis involves no difficulty or mystique. Offending acts are condemned simply for the reason that they are unauthorized. The court assumes that parliament cannot have intended to authorize unreasonable action which is therefore ultra vires and void. This is the express basis of the reasoning in many of the case.

The fundamental principle of rule of law is all authorities and their actions are subject to law. The administrative authority is discharging their duties may act beyond the power or abuse the power conferred on them. As result, individual right and liberties may be affected, therefore it is necessary that there should be judicial control over misuse of discretionary power of the administrative authorities. So the rights of the peoples are not adversely affected and protect the notion of democracy and rule of law.

Judicial review can be on done for the declaring invalid the decision of the administrative decision. The administrative discretionary power is sometime very much authoritative and it hamper on the fundamental right of the individual at that time the court issue such order to repel that decision. The following case is one of the important example this regard.

Case description

Baburam Poudel v. HMG and council of ministers

Fact of the case

His Majesty Government gives retirement to a person by using the discretionary power. HMG claim that the conduct giving retirement is lawful as per the Civil Service Regulation 2021 rule 7.1(3). This rule state that any person who is reach at the stage of getting pension then government can give retirement to him or her.

Ratio Decidendi

Civil Service Regulation 2021, rule 7.1(3) talks about the discharging any government official from the service by the Government, when he/she is at the stage of getting pension. But any Act or Rules are void until the contradiction or inconsistency with Constitution is exist. This rule is some how contradict with the fundamental right. The use of discretionary power should be just and reasonable. The applicant discharge from his position and it is related with the positional right. So the decision regarding this matter should be just. The discretionary power should be use as consistent with the law; any decision made under that power is not done with the bad intention. The decision should consistent with the equality right provided by the constitution. In the question regarding, Whether is this type of decision rational and amiable? Whether are those laws inconsistent with the constitution under which decides about the retirement? If such laws are contradict with the constitution, then art. 88(1) of the constitution and the extra ordinary Jurisdiction of Supreme Court under art 88(2) provide authority to declare the conduct and laws as invalid.

The Supreme Court is competent and authoritative to decide on such constitutional issue so, supreme court can do judicial review on the decision regarding the retirement.

The universal principle is that, the discretionary power should not be arbitrary. Arbitrary acts are negative aspect of the Rule of Law. The constitution of Nepal aims to protect and follow the rule of law. That’s why the discretionary right is limited and controlled.

Civil Service Regulation 2021, rule 7.1 provide right for applicant that, applicant can stay on service until his age of 60. The Government conducts under rule 7.1(3) blunt the right provided by rule 7.1 so the use of discretionary power should be just.

Laws provide the discretionary power to the administrative executive officer, whereas the power is not arbitrary and absolute. It must be amiable. The abuse of power is not acceptable and the discriminatory conduct is functional. The decision of the administrative executive is free from the mal intention and biasness.

Court Verdict

The decision of the Government regarding the retirement of the applicant is discriminatory and unlawful. So the decision of HMG in 2048/6/4 was made void by issuing the certiorari order. Again issuing the Mandamus, order to the general administrative ministry for the re-recruitment to the applicant.

The discretionary power provided to the administrative executive body for the reason of, quick and prompt decision making in the emergency. The discretionary power does not mean arbitrariness but must be used on the ground of reasonableness and just. To control over that arbitrary discretionary power the judicial review play a vital role. So the universally accepted principle regarding the discretionary power is just and reasonable.

The judicial review is done if the act or the laws are inconsistent with the constitution. In the Baburam Poudel v. HMG and council of minisry case, in this case also Government give retirement to a person by using the power of discretion. But that act was inconsistent with the same Regulation’s rule 7.1.

The civil servants are not absolute servants of the government. As same as the appointment and discharge the general servant the civil servant cant be appoint and discharge. The civil servants recruit as per the Civil Service Act 2013 and Civil Service Regulation 2021, so the discharging or give retirement from service also be done as per the Civil Service Act 2013 and Civil Service Regulation 2021. The doctrine of pleasure is not means that the ignorance of law. For having pleasure to any one the ignorance of law is not accepted and is not having the autocracy.

Thus Judicial review by Supreme Court can control over the massive discretionary power. It helps in protecting the democracy, rule of law and people’s fundamental right and legal right. In this case also the judicial review plays role for the protection of individual right which is protected by law and constitution. And applicant was reappointed in his post though was discharged using the discretionary power by government.

Exception to The Rule of Natural Justice

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

Exclusion of Natural Justice-:

Though the rule of natural justice namely, nemo judex in causa sua and audi alteram partem, have now a definite meaning and connotation in law, and their content and implications are well understood and firmly established, they are nonetheless not statutory rules. Each of these rule yields to and changes with the exigencies of different situations. They do not apply in the same manner to situations which are alike. These rules are not cast in a rigid mould nor they be put in al legal strait-jacket. They are not immutable but flexible. These rules can be adopted and modified but statues and statutory rules and also by the constitution of the tribunal which has to decide a particular matter and the rules by which such tribunal is governed.[1] There are exceptional situation which exercised this types of practice informed the administration tribunals and so many laws are overtake the natural justice may be excluded-:

1. Statutory exclusion
The principles of natural justice do not suppliant the law but supplements it. It follows where the statute is silent about the compliance with the principles of natural justice; such statutory silence is taken to imply observance of the principles of natural justice. However, where a statue excluded the application of any or all the rules of natural justice than court cannot ignored statutory mandate and read in to the concerned provision the requirement natural justice.[2]

2. Exclusion in cases of legislative function
Legislative action, plenary or subordinate, is not subject to the rules of natural justice. This is so because these rules lay down a policy without reference to particular individual especially it was applied disciplinary action which is exercised the rights to maintained peace and security and privacy. Legislative action, for example, price fixing, is a direction of general character, not directed against a particular person or individual manufacturer or trader. There is no question invoking principles of natural justice in such cases.[3]

3. Exclusion in Emergency
In exceptional cases of emergency where prompt and preventive action is required, the principles of natural justice need not to be observed. According to Justice krshna Iyer ….. ‘If to condemn unheard is wrong, it is wrong except where it is overborne by dire social necessity’.[4] Thus, where dangerous building is required to be demolished to save human lives.

However, ‘immediacy’ does not exclude duty to act fairly because even an emergent situation can co-exist with the canons of natural justice. Thus, even in the case of emergency here precious rights of the people are affected; post-decisional hearing has relevance to administrative fairness.

Public interest
There requirement of notice and hearing may be excluded where prompt actions to be taken in the interest of public safety, public health or public morality. In case of pulling down property to extinguish fire, destruction of contiguous plant is animal like destruction of unwholesome food etc. action has to be taken without giving the opportunity of hearing. Nevertheless, hearing may be given in some of this situation after the action has been taken as a corrective measure to see whether mistake has been committed.

Exclusion based on impracticability
Judicial approach in applying the rules of natural justice to fact situations is not theoretical but pragmatic. Where the number of persons is so large that is not practicable to give all of them the opportunity to being heard, the court does not insist an observance of the principle of natural justice. The entire MBA entrance examination was canceled the university because of mass copying, the court held that notice and hearing to all the candidates is not practicable in such situation.[5]

Exclusion based on the Academic evaluation
Where a student is removed from an educational institution on grounds of unsatisfactory academic performance, the requirement of pre decisional hearing is excluded. Thus, a student of the university was removed from the rolls because of unsatisfactory academic performance without giving any hearing.[6]

Exclusion in case of interim disciplinary action
Where disciplinary action is preventive in nature, the observance of the rules of natural justice is excluded. Thus in

Abhay kumar v. K. Srinivasan[7] case the Delhi high court ruled that such an order could be compared with an order of suspension pending enquiry which is preventive in character in order to maintain peace in the campus, and therefore the principles of natural justice not attracted.

Contractual transaction
In state of Gujrat v. M.P. shah Charitable trust[8] the Supreme Court held that the principles of natural justice are not attracted in case of termination of an agreement in any contractual field. The reason is clear that termination of an arrangement is neither a quasi judicial nor an administrative act. Hence, the question of duty to act judicially does not arise.

[1] C.K. Thakker, Administrative Law,(Eastern Books Company, 1996), 207

[2] Union of India v. J.N sinha AIR 1971, SC 40

[3] Union of India v. Cynamide India AIR 1987, SC 1802

[4] Mohinder Singh Gill v. Chief election commissioner, AIR 1978 SC 851

[5] R. Raadha Krishnaman V. Osmania University, AIR 1974Ap 283

[6] Jawar lal Nehru Universityv. B.S. Narwal, AIR 1981 DEL 381

[7] AIR 1981 Del 381

8 3 SCC 552

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.

Quasi Judicial Bodies

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

a. Administrative Court
The Administrative Court in Nepal hears appeals related to removal of government employee only.

It decides on appeals related to removal of gov employee only, does not hear all disputes concerning government employee, such as those related to promotion, deployment, departmental action, corruption, etc.

No relation to cases regarding ordinary citizens.

In this sense, Administrative Court in Nepal does not really reduce the burden of cases on the regular courts.

Public Service Act, 2049 is the special governing Act

Constitution and Qualification of members– 1 chairperson and 2 members’ panel. Tenure of member is 5 years. Chairperson is person who was, is or qualified to be judge of appellate court. Other 2 members, 1 is from legal and another from administrative background.
Jurisdiction– Hear appeal against departmental action to remove gov employee from service, with or without restriction on future government employment.
Exercise of jdx– Collectively by the 3 members based on majority opinion.
Decision on Appeal– to endorse or invalidate the earlier decision, or decrease punishment or to acquit, within 6 months from date of filing of appeal
Parties may appoint lawyer or plead themselves
Enforcement of decision- via Ministry of Public Administration
Contempt of court- proceedings may be held against those who do not comply with this Court’s decisions or orders or one who commit contempt of this court. Up to 6 months imprisonment or not exceeding Rs. 5,000 fine or both for contempt.

Ujjwal P. Devkota v. Office of Audit Controller (NKP 2057)

Appeals relating to termination of government employment should be filed with the Administrative Court, which is the prescribed legal remedy, and not as a writ application under the extraordinary jurisdiction of the Supreme Court. Administrative Courts is an alternate legal remedy.

This decision put an end to the practice, after the enforcement of Constitution of 1990, of directly filing writs by employees against whom departmental action had been taken , instead of filing appeal at Admin Court.

b. Revenue Tribunal

Hears appeals against decisions related to revenue taken by various agencies and official pursuant to Revenue Tribunal Act, 2031

Constitution and Qualification of members– 1 chairperson and 2 members’ panel. Chairperson is person who is or qualified to be judge of appellate court. Other 2 members, 1 is from revenue and another from audit background.
Jurisdiction– Initial complaint: relating to its contempt (of court).

Appeal: Hears appeals against decisions related to revenue taken by various agencies and official

Appeal against Decision of Revenue Tribunal- Decision of RT is final. May file appeal against decision of RT at the Supreme Court on the following legal grounds:

(i) question of jurisdiction

(ii) admission of irrelevant evidence and exclusion of relevant evidence, or

(iii) violation of mandatory procedural laws.

. . .

c. District Administrative Office . . .
d. Local Authorities
e. Others (Forest, Land, Police, etc.)

Nature, Scope and Sources of Administrative Law

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

Sources of Administration Law
Administrative law principles and rules are to be found in many sources. The followings are the main sources of administrative law in Ethiopia.

The Constitution
The F.D.R.E constitution contains some provisions dealing with the manner and principle of government administration and accountability of public bodies and officials. It mainly provides broad principles as to the conduct and accountability of government, the principle of direct democratic participation by citizens and the rule of law. It also embodies the principle of separation of powers by allocating lawmaking power to the house of people‘s representatives, executive power cumulatively to the Prime Minister and Council of Ministers, and finally the power to interpret the laws to the judiciary.

Legislation
Laws adopted by parliament, which may have the effect of creating an administrative agency, or specify specific procedure to be complied by the specific authority in exercising its powers, can be considered a primary sources for the study of administrative law. The statute creating an agency known as enabling act or parent act, clearly determines the limit of power conferred on a certain agency. An administrative action exceeding such limit is an ultra virus, and in most countries the courts will be ready to intervene and invalidate such action. Moreover, parliament, when granting a certain power, is expected to formulate minimum procedure as to how that power can be exercised to ensure fairness in public administration. This can be done, on the one hand, by imposing a general procedural requirement in taking any administrative action mainly administrative rule making and administrative adjudication just like the American Administrative Procedure Act (APA). And on the other hand, parliament in every case may promulgate specific statutes applicable in different situations.

Delegated Legislation
Rules, directives and regulations issued by Council of Ministers and each administrative agencies are also the main focus of administrative law. Administrative law scholarship is concerned with delegated legislation to determine its constitutionality and legality or validity and ensure that it hasn‘t encroached the fundamental rights of citizens. One aspect of such guarantee is subjecting the regulation and directive to comply with some minimum procedural requirements like consultation (public participation) and publication (openness in government administration). Arbitrary exercise of power leads to arbitrary administrative action, which in turn, leads to violation of citizen‘s rights and liberty. Hence, the substance and procedure of delegated legislation is an important source of administrative law.

Judicial Opinion
Much, but not most, of the doctrine that envelops and controls administrative power is found in judicial analysis of other sources. However, much of administrative law will not be found solely in judicial opinions. Furthermore, the opinions themselves must be carefully pursued to avoid generalizations about controls on agency behavior that may not be appropriate, as the outcome of many cases may turn on particular statutory language that may not necessarily reflect the nature of disputes in other agencies.
The American experience as to judicial opinion influencing administrative law is characterized by lack of generalization and fluctuating impacts. These may be due to two reasons. First, cases coming before the courts through judicial review are insignificant compared to the magnitude of government bureaucracy and the administrative process. Second, even as between two apparently similar cases, there is a possibility for points of departure.

Scope of Administrative Law
I- Public Law/Private Law Divide
The boundaries of administrative law extend only when administrative agencies and public officials exercise statutory or public powers, or when performing public duties. In both civil and common-law countries, these types of functions are sometimes called ―public law functions‖ to distinguish them from ―private law functions‖. The former govern the relationship between the state and the individual, whereas the later governs the relationship between individual citizens and some forms of relationships with the state, like relationship based on government contract.
For example, if a citizen works in a state owned factory and is dismissed, he or she would sue as a ―private law function‖. However, if he is a civil servant, he or she would sue as a ―public law function‖. Similarly, if residents of the surrounding community were concerned about a decision to enlarge the state- owned factory because of environmental pollution, the legality of the decision could be reviewed by the courts as a ―public law function.‖ It is also to be noted that a contract between an individual or business organization with a certain administrative agency is a private law function governed by rules of contract applicable to any individual – individual relationship. However, if it is an administrative contract it is subject to different rules (see civ. code art 3136 ff).
The point here is that the rules and principles of administrative law are applicable in a relationship between citizens and the state; they do not extend to cases where the nature of the relationship is characterized by a private law function.
B) Substance vs. Procedure
Many of the definition and approaches to administrative law are limited to procedural aspects of the subject. The focus of administrative law is mainly on the manner and procedure of exercising power granted to administrative agencies by the legislature. Fox describes the trend and interaction between substance and procedure as:

It is the unifying force of the administrative process – in dramatic contrast to the wide variety of substantive problems with which agencies deal- that has persuaded most administrative law professors to concentrate on agency procedure rather than agency substance. Hence, to a wider extent, the study of administrative law has been limited to analyzing the manner in which matters move through an agency, rather than the wisdom of the matters themselves.‘
With respect to judicial review, the basic question asked is not whether a particular decision is ―right‖, or whether the judge, or a the Minister, or officials have come to a different decision. The questions are what is the legal limit of power or reasonable limit of discretion the law has conferred on the official? that power been exceeded, or otherwise unlawfully exercised? Therefore, administrative law is not concerned with the merits of the decision, but with the decision making process.

Presently, the perspectives on administrative law are summarized by two contrasting models labeled by Harlow and Rowling as red light‘ and green light‘ theories. The former is more conservative and control-oriented; the latter is more utilitarian (socialist) in orientation and facilitative in nature. Both significantly serve to describe the concept of administrative law, and to act as normative (i.e. moral and political) suppositions about what its role in society ought to be.
A) Red Light Theory
The red light approach advocates strong role for the courts to review administrative decisions. It considers that the function of law is to control the excesses of state power. ―The red light view can be seen to originate from a political tradition of 19th century laissez faire (minimal state) theory. It embodied a deep-rooted suspicion of governmental power and a desire to minimize the encroachment of the state on the rights (especially property rights) of individuals.
According to this theory of state, the best government is the one that governs least. Wider power means danger to the rights and liberty of citizens. Hence, the red- light theory serves the function of controlling excess and arbitrary power, mainly by the courts. Its descriptive feature is that, on the one hand, it gives much attention on control of governmental power, and on the other hand, it is confident that the effective controlling instrument are the courts through judicial review; As Harlow and Rawlings put it:
―Behind the formalist tradition, we can often discern a preference for a minimalist state. It is not surprising, therefore, to find many authors believing that the primary function of administrative law should be to control any excess of state power and subject it to legal, and more especially judicial control. It is this conception of administrative law that we have called red light theory‖.

B) Green Light Theory
The green light approach considers that the function of administrative law is to facilitate the operation of the state. It is based on the rationale that bureaucrats will function most efficiently in the absence of intervention. Administrative law should aim to help simplifying the procedures and enhance efficiency. It starts from the standpoint of a more positive, largely social and democratic view of the state.
The green light theory is originated from the utilitarian tradition, which proposes promoting the greatest good for the greatest number. According to the utilitarian theory, the state is expected to provide the minimum standards of provision, including housing, education, health, social security, and local services. To provide maximum satisfaction for most of its people, the state should assume a broader role, hence, should possess wider powers. The green light theory broadly supports the introduction of policies aiming at developing public service provisions. Law is perceived as a useful weapon and an enabling tool. It is something very concrete and can provide in principle, at least, the proper authority and framework with which to govern consensually. It regards law not as a controlling mechanism, rather as a facilitative tool. Consequently, it considers the court‘s intervention as an obstacle to efficiency.

Harlow & Rawling write:
“Because they see their own function as the resolution of disputes and because they see the administrative function from the outside, lawyers traditionally emphasize external control through adjudication. To the lawyer, law is the policeman; it operates as an external control, often retrospectively. But a main concern of green light writers is to minimize the influence of the courts. Courts, with their legalistic values, were seen as obstacles to progress and the control which they exercise as unrepresentative and undemocratic. To emphasis a crucial point in green light theory, decision making by an elite judiciary imbued with a legalistic, rights-based ideology and eccentric vision of the „public interest‟ was never a plausible counter to authoritarianism.”

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.

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.

Separation of Power and Check and Balance

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

Administrative law deal with the nature of the power of the administration and the manner in which the power are exercised but does not go into an examination of the content of those exercised powered.

Administrative law is that branch of public law which deals with organization and powers of administrative and quasi- administrative agencies and prescribes principle and rules by which official actions reached and reviewed in relation to individual life, liberty and property.

The theory of separation of power has engaged in several forms at different periods, it was originated by Aristotle and it was developed by Locke. In the 16th and 17th centuries, French Philosopher John Bodin and British politician locke respectively had expressed their views about the theory of separation of power. But, the rule (Or doctrine) of separation of power was propounded for the first time by the French Jurist, Montesquieu. He formulates this theory in his famous book “The spirit of laws”, published in 1718. According to him, there are three main organs of the government in a state.

The legislature
The judiciary, and
The executive

[1]. S. P. Sathe, Administrative law, LexisNexis Butterworths, Seventh Edition, Page No.8

[2]. B. P. Acharya, Administrative Law, Pairavi books and stationery centre First edition, Page No.15

Meaning of Separation of Power and Check and Balance

Montesquieu states in De L’Esprit des lois (1748) that when the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be not liberty… Again, there is no liberty, if the judicial power be not separated from the legislative and executive where it joined with the legislative, the life and liberty of the subject would be exposed to arbitory control; for the Judge might behave with violence and oppression. There would bean end to everything, were the same man, or the same body… to exercise those three powers. (Book XI, chapter 6, quoted in vile 1967)

Montesquieu, a French scholar, conceived the principle of separation of power. He found that concentration of power in one person or a group of persons resulted in tyranny. He therefore, felt that government power should be vested in three different organs, the legislature, the executive and the judiciary. The principle can be stated as follow.

Each organ should be independent of the others;
No one organ should perform function that belongs to the other.

According to this theory of separation of powers, those three powers and functions of the Government in a free democracy must be kept separate organs of the government. One organ of the government should not exercise the function of the other two organs. In other words,

The legislature cannot exercise the power of the Executive or Judiciary.
The Executive cannot exercise the power of the legislature or Judiciary.
The Judiciary cannot exercise the power of the legislature or Executive.

[1]. Peter Leyland and Gordon Anthony, Textbook on Administrative Law, Oxford University Press, fifth edition, Page No.21

[2] . S. P. Sathe, Administrative law, LexisNexis Butterworths, Seventh Edition, Page No.20

According to Berkley and Rouse:

Each branch of government is assigned a particular task; Legislature makes the law, the Executive branch administers the law, and the judicial system enforces and interprets the law. The separation of power concept operates in tandem with the limited government powers. Separation of power doctrine restrains one branch from usurping the power of the others; the limitation of government powers inhibits the national government from overpowering the right of the state and restricts the intrusion of government into private lives.

Wade and Phillips say that the doctrine of separation of power means the following three things:-

The same set of person should not compose more than one department of the three departments.
One department should not exercise the function of the other two documents.
One department should not control, or interfere with the work of the other two departments

According to the above statement, we can say that the Separation of powers means the three branch of the government are institutional autonomous, functional non-intervention & personal nonalliance between and among each other. As per the above description a pure form of the separation of powers doctrine has some features: (i) the function of government are to be divided into the Legislative, the Executive, and the Judiciary; (II) Different functions are to be vested in separate and appropriate institutions; (III) the members of one institution should not be member of any other institution; and (IV) the function of one institution should not encroach on the functions of another.

This doctrine of the ‘separation of power’ develop as a political theory to prescribe what ought to happen in relation to the distribution of powers within a constitution. Essentially it suggest that the abuse of power will be limited by distributing different functions, legislative, executive and judicial, between governmental institutions to prevent any one of them from predominating, thus preventing power from being concentrated in a single person or body.[3]

2.2 Doctrine of Separation of Power in Nepalese context.

In context of Rana resime, the doctrine of separation of power was not used properly. It is so because Rana prime minister possage the right of law making, law interpreting and law enforcement. So the three organ of government was not there at that time. But in Interim Sashan Bidhan 2007, there was a provision of three organ of government.

After the promulgation of constitution of constitution of 2007, the three organ of government has different right as today i. e law making body as legislative, law enforcement body as executive and law interpretive body as Judiciary. Similarly, after the promulgation of constitution of kingdom of Nepal 2047, The sovereign power are vested upon people and the doctrine of separation of power was establish to protect and promote the interest of people and liberty of Nepalese people.

[1]. George Berkley and John Rouse (1997), the Craft of public Administration, 7th edition, Chicago: Brown & Benchmark, page no 14

[2]. B. P. Acharya, Administrative Law, Pairavi books and stationery centre, First edition, Page No. 88-89

[3]. Peter Leyland and Gordon Anthony, Textbook on Administrative Law, Oxford University Press, fifth edition, Page No.21-22

Doctrine of Separation of Power and its effects on Administrative law

Administrative law is totally opposite to the Rules/Doctrine of separation of power. Both aim at the maximum protection of the rights and liberties of individuals. The doctrine of separation of power resist to delegated legislation. But administrative law’s main province is delegated legislation, Judicial Review, adjudication and decentralization separation of power does not accept to the delegated of power.

Separation of power not only provides each branch with somewhat different authority over public administration but may also frustrate coordination among them. Basic political science tells us that chief executive, legislature and courts are responsive to different constituencies, pressure and constrains. All three branches have legitimate interest in public administration. However, they often differ with regard to what they think agencies should do and how they ought to do it.[1]

Separation of power control to the state organ’s authority and resist to the arbitrary and capricious power. Administrative law does control to Administrative authority and protection government to people. So Administrative law and separation of power with check and Balance Future is golden-bright.

The logic behind this doctrine is of Polarity (the tendency of a lodestone rather than strict classification meaning there by that the centre of authority must be dispersed over a wide area to avoid absolutism) the acceptance of in the same manner. Prof. Wade, writes that the objection of Montesquieu was against accumulation the act and monopoly rather interaction.

The separation of power is not in essence concerned with the allocation of functions as such. Its primary purpose … is the prevention of the arbitrary government, or tyranny, which may arise from the concentration of power… . This point is perhaps most clearly appreciated if we consider what has become one of the most complex areas for separation of powers analysis; the organization, and control, of administrative authorities and agencies.

Public administrators make rules (Legislation), implement these rules (an executive function), and adjudicate questions concerning their application and executions ( a judicial function). The collapsing of the separation of power has been well recognized. [2]

Institutions of Government

Legislature can do:		Executive can do:	Judiciary can do:
Legislature	To make laws	Ø Veto Legislation Ø Recommend leg.	Ø Review legislature acts
Executive	Ø Confirm executive appointments (senate) Ø Override Executive Veto	To enforce the Law	Ø Review executive acts Ø Issue injunctions mandamus strictures
Judiciary	Ø Impeach Ø Create or Eliminate court	Ø Grant pardons Ø Nominate Judges	To interpret laws

Sources: Keneth Janda, Jeffrey M. Berry, and Jerry Goldamnt, (1992), the Challenge of Democracy Government of America, 3rd Edition, Boston; Houghton Mifflin company, at 85

The doctrine of separation of powers was championed as a device for limiting governmental power by taking from the monarch his ancient law making power and vesting it in a legislature, Montesquieu[1] argued, For example that under an oppressive and despotic government, which concentrated all power into a single hand, liberty would never be attained by the people.

Development of Administrative Law

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

In General
Unlike other fields of law, administrative law is a recent phenomenon and can fairly be described as ‗infant.‘ Historically, its emergence could be dated back to the end of the 19th century. This era marked the advent of the welfare state‘ and the subsequent withering away of ‗the police state.‘ The interventionist role of the welfare state practically necessitated the increment of the nature and extent of power of governments. Simultaneous, with such necessity came the need for controlling the manner of exercise of power so as to ensure protection of individual rights, and generally legality and fairness in the administration. With such background, administrative law, as a legal instrument of controlling power, began to grow and develop too fast. Typically, with the proliferation of the administrative agencies, administrative law has shown significant changes in its nature, purpose and scope.

Presently, administrative law, in most legal systems, is significantly developed and undoubtedly recognized as a distinct branch of law. However the path followed to reach at this stage is not uniform and similar in most countries. Administrative law is unique to a specific country. Such uniqueness can be explained by the fact that it is the outcome of the political reality, economic circumstances and the nature of the legal system prevailing in that country. It is also highly influenced by the constitutional structure, the system of government and principles of the public administration adopted by that country.
Generally, the proliferation of the administrative agencies and the expansion of delegated legislation were two significant factors for the growth of the administrative law in most countries. The 20th century marked with the vast increase of administrative agencies with vast and wide-ranging powers. This necessitated legislative measures and judicial interference aimed at controlling the manner of exercise of power of these entities so as to ensure protection of individual rights and freedoms. As a result, most countries introduced specific and comprehensive rules and procedures governing administrative adjudication and rule-making. In US, the Administrative Procedure Act which was made law in 1946 is one such example of a comprehensive response to deal with the growing power of agencies. Since then, the landscape of the history of the American administrative law has been changed significantly. Similarly, in England the Statutory Instrument Act was promulgated in the same year (1946) even though it was not as comprehensive and influential as the American counterpart. The Act was a direct response to the ever increasing power of agencies, more specifically, the delegation power of agencies. In the 1920s fear developed about the volume and nature of the delegated legislation being produced, which was not receiving parliamentary scrutiny; many sought necessary or desirable.
In 1929, lord chief justice Lord Hewart published The New Despotism in which he railed against what he saw as dangerous and uncontrolled growth of bureaucratic power. In 1932, the report of the Donoughmore-Scott Committee on Ministers‘ powers was issued. The report, amongst other things, explained the inevitability of the delegated legislation, and also suggested some safeguards. The report also recommended better scrutiny of the vesting in Ministers of ‗oppressive‘ powers. This, finally, led to the enactment of the Statutory Instruments Act of the 1946.
However, the growth of the administrative law is not limited to statutory prescriptions of rules and procedures governing the administrative process. Courts have also played important roles in shaping the form, substance and scope of the administrative law. In England, until the Second World War and in the period immediately following 1945, courts continued limiting the scope of their controls. Such judicial restraint was relaxed after the 1960s and there was judicial revival and activism with the judiciary reclaiming their proper role of ensuring the legality and fairness of exercise of governmental powers. In America, where the judiciary has firmly asserted its strong position in checking the constitutionality of parliamentary legislation, the courts didn‘t hesitate to review administrative decision, including delegated legislation.
In France, Italy, Germany and in a number of other countries, there is a separate system of administrative courts which deal with administrative cases exclusively. As a natural consequence, administrative law has developed on its own independent lines, and is not enmeshed with ordinary private law as it is in the Anglo-American system.

Doctrine of Bias/ Fair Hearing

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

NEMO JUDEX IN RE SUA

Literally, meaning of NEMO JUDEX IN RE SUA “It means no man can be a judge in his own case”. In other words it means rule against bias and it is based on three maxims-:

“No man shall be judge in his own case”
“Justice should not only be done, but manifestly and undoubtly be seen to be done”
“Judges, like ceaser’s wife should be alone suspicion”.

In Franklin v. Minister of Town and Country planning[1] Lord Thankerton defines bias as follows-:

“My lord, I could wish that the use of the word ‘bias’ should be confined to proper sphere. Its proper significance in my opinion is to denote a departure from the standard of even handed justice which the law requires from those who occupy judicial office, or those who are commonly regarded as holding a Quasi-judicial office, such as an arbitrator.”

The first requirement of natural justice is that the judge should be impartial and neutral and to be in a position to apply his objectively to the dispute before him. He cannot act as judge of a cause which he himself has same interest either pecuniary or otherwise it is against the neutrality. If the judge is subject to bias in favor or against either party to the dispute or in a position that a bias can be assumed, he is disqualifies to act as a judge. It is a well settled principle of law that justice could not only be done but manifestly and undoubtedly be seen to be done. Justice can never be seen to be done if a man acts as a judge in his own cause or is himself interested in its outcome. This principle applies not only to judicial proceeding but also to Quasi-judicial as well as administrative proceeding.

TYPES OF BIAS

Official Bias or Subject-matter bias

Bias may arise because the adjudicator may have a general interest in the subject matter in dispute because of his association as a member of otherwise with a private body or with the administration in his official company. An administrator adjudicator cannot develop the same kind of neutrality and objectivity towards the issues and institution being presented before him as is the characteristic of a judge.

According to Griffith and street, “only rarely will this bias invalidate proceeding”. A mere general interest in the general object to be pursued would not disqualify a judge from deciding the matter. There must be some direct connection with the litigation[2].

According to wade, mistrial or departmental policy cannot be regarded as a disqualifying bias[3]

Also, in many adjudicatory proceeding before bureaucratic authorities one of the parties is usually the administration itself. Therefore an authority may have official bias towards the department to which it has attached in a dispute between the department and a private party or may have a policy bias i.e. it may be interested in projecting and pursuing policies of the department.

Personal Bias A number of circumstances may give rise to personal bias. Here a judge may be a relative or business associate of a party. He may have some personal grudge, enmity or grievance or professional rivalry against him. In view of these factors there is every likelihood that the judge may be biased towards one party or prejudiced towards the other.

A crude form of personal bias is when the manger of a factory himself conducts inquiry against the workmen who are alleged to have assaulted him[4]or when a person sits on a gram panchayat bench to hear appeal against his conviction[5] or when the adjudicator is a relation of the parties[6] or when a person sits on the selection board to select person for a post for which he himself is a candidate even though he may not participate in it’s deliberation when his name is considered [7]or when the selection committee to select person for civil posts includes the son-in-law of a selected candidate. [8]

Section 30, of Court management of Country code, talks about personal Bias

Pecuniary Bias
There is a presumption that any direct financial interest howsoever small in the matter in dispute disqualifies person from adjudicating. So, a direct pecuniary interest however small will disqualify a person from acting as a judge.
The rule against bias (nemo iudex in causa sua, or “no man a judge in his own cause”)
Bias means an operative prejudice, whether conscious or unconscious, in relation to a party or issue.

Such operative prejudice may be the result of a preconceived opinion or a predisposition or a predetermination to decide a case in a particular manner, so much so that it does not leave the mind open.

A person cannot take an objective decision in a case in which he has an interest, for, as human psychology tells us, very rarely can people take decisions against their own interest.

The rule against bias is concerned with appearances- actual bias need not be established.

(i) Personal bias

Personal bias arises from a certain relationship equation between the deciding authority and the parties, which incline him unfavorably or otherwise on the side of one of the parties before him.

Two main tests of personal bias are: ‘reasonable suspicion’ test- looks to outward appearance, and ‘real likelihood’ test- focuses on the court’s own evaluation of possibilities. In most cases though, they lead to the same result.

Muluki Aain, Chapter on Court Management, Sec. 30- Judge may not hear his or his relative’s case.

(ii) Pecuniary bias

Judicial approach is unanimous and decisive on the point that any financial interest, howsoever small it may be, would vitiate administrative action.

A pecuniary interest will disqualify a judge even though it is established that the judge was not influenced by the interest in reaching a decision.

But the rule sometimes is not applied where the judge has no direct financial interest in the outcome of the case, though having a pecuniary interest.

(iii) Subject-matter bias

Those cases fall within this category where the deciding officer is directly, or otherwise, involved in the subject-matter of the case. Here, mere involvement would not vitiate the administrative action unless there is real likelihood of bias.

In Gullapalli Nagewara Rao v. APSRTC (AIR 1959), the Indian SC quashed the decision of the Andhra Pradesh government to nationalize road transportation on the ground that the Secretary of the Transport Department who gave the hearing was interested in the subject-matter.

In the USA and England, predisposition in favour of a policy in the public interest is not considered as legal bias vitiating administrative action.

(iv) Departmental Bias

The problem of departmental bias is something that is inherent in the administrative process, and if it is not effectively checked, it may negate the very concept of fairness in administrative proceeding.

In Gullapalli Nagewara Rao v. APSRTC (AIR 1959), the Indian SC quashed the decision of the Andhra Pradesh government to nationalize road transportation. One of the grounds for challenge was that the Secretary who gave the hearing was biased, being the person who initiated the scheme and also being the head of the department whose responsibility it was to execute it.

Thereafter the Act was amended and the function of hearing the objection was given to the minister concerned. The Gov. decision was again challenged In Gullapalli Nagewara Rao. However, on this occasion the Supreme Court rejected the challenge on the ground that the minister was not a part of the department in the same manner as the Secretary was.

The problem of department bias also arises in a different context- when the functions of judge and prosecutor are combined in the same department. It is not uncommon to find that the same department which initiates a matter also decides it.

In the US and England, there have partially resolved this issue with the institution of hearing officers and inspectors.

(v) Preconceived notion bias

Bias arising out of preconceived notions is a very delicate problem of administrative law. On the one hand, no judge as a human being is expected to sit as blank sheet of paper, and on the other hand, preconceived notions would vitiate a fair trial.

The decision-maker must remain open to persuasion. This may seem especially unlikely in circumstances where the minister has formulated a policy and then hears representations against that policy. The courts accept that in such circumstances an element of bias must be accepted.

Doctrine of Necessity

Bias would not disqualify an officer from taking an action if no other person is competent to act in his place. This exception is based on the doctrine of necessity.

The doctrine of necessity makes it imperative for the authority to decide, and considerations of judicial propriety must yield.

Cases Relating to Natural Justice
3.1 Rajkumar Adhikari v. HMG[9]

According to court management act no. 30 of Muluki Ain of Nepal it is said that one cannot be a judge in his/her own case and in this case therefore, the decision of the judge failed where judge document and his/her signature was itself in question.

3.2 Jyoti Baniya v. house of representative[10]

In this case a pursuant to the Section 60 of forest act, if there is prosecution and decision maker in same office that is known as official bias. So court held that, second forest officer must file the sue in front of district officer who was appointed as jury with taking opinion of prosecutor as per the mentioned law.

3.3 Yagmurti Banjade V. bagmati special court.[11]

No one can be judge in subject in which he is involved. The judge should do his work on the basis of evidence and he should give judgment which gives logic and argument And should always work in the legal framework and he should be obedient while doing so.

3.4 Babu RamPoudel v. HMG[12]

It is also a landmark case from the point of view of natural justice where the court by issuing the writ of Mandamus ordered HMG to reinstate the petitioner in the same post by quashing the illegal decision of the administration and the right of the petitioner to the hold the post and continue the service was protected by applying the principle of natural justice.

3.5 Iman Singh Gurung v. HMG [13]

The Supreme Court emphasized the importance of natural justice and stated that presentation of evidence an opportunity of legal aid and fairness in the legal proceeding are all necessary requirement of Justice. The court further expressed that a citizen has a right to go to the independent and competent court or judicial body for the determination of his basic rights and liabilities and these requirement of a citizen cannot be infringed without essential or justified reason.

[1] 1948, AC 87

[2] J.J.R UPADHAYA, Administrative Law,(Allahbad : Central law Agency, 2001), 162

[3] H.W.R Wade, ADMINISTRATIVE LAW,(Walton street ,Oxford University press, 1993, 6th edition), 489-493

[4] Meengal tea state v. workmen, AIR 1963 S.C

[5] Ram jag singh v. Bihar, AIR 1958 PAT 7

[6] Amalok Chand V. SDO AIR 1962 AS 580

[7] A.K Kraipak V. India, AIR, 1970 SC

[8] D K Khanna V. India, AIR 1970 HP 30

[9] NKP 2055,Decision no. 3495, 33

[10] Supreme court bulletin 2055, no. 17, 2-3

[11] NKP 2027, p 157

[12] NKP 2051

[13] NKP 2049

No man shall be judge in his own case, or no man can act as both at the one and the same time a party or as suitor and also as a judge, or the deciding authority must impartial and with out bias and, This natural justice consists of the rule against bias or interest and is based on two maxim

No man shall be judge in his own cause
Justice should not only be done, but manifestly and undoubtedly be seen to be done

According to the dictionary meaning any thing which tends or may be regarded as to cause such a person to decide a case other wise than on evidence must be held to be biased. So the first requirement of natural justice is that the judge should be impartial and natural and must be free bias. Usually, there are three kinds and are namely as pecuniary Bias, personal bias, departmental bias they all carry the same sense, thought tin different ways that impartiality is the most important ingredient of justice