TyroCity: Administrative Law Notes

Control over Administrative Adjudication

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

Through the judicial review, judicial control is exercised over administrative adjudication.

Constitution of Nepal 2015- Article 133 – This provision applies to all administrative actions. It falls under the extraordinary jdx of SC, and review is done by a different judge than judge who decided earlier. The principles of review contained in this Article are recognition of judge-made principles, and hence are not inconsistent with the court-recognized grounds of judicial review but rather supplement it.

Exercise of Fundamental Rights
Exercise of legal rights, if another remedy is absent, or if another remedy is present but is inadequate or ineffective
Resolution of constitutional or legal question involving an issue of pubic right or interest
Ultravires– partially or in entirety, void ab initio or from decision date

Any law w/ the constitution

Provincial statute w/ federal statute

Local (municipality or village) statute w/ federal or provincial statue

(constitutional and legal) Grounds for judicial review:

1. Principle of Ultra-vires:
Beyond powers conferred by the constitution and statute, beyond limits set, beyond prescribed jurisdiction

Substantive/excess of power ultra-vires

– Errors of procedure/procedural ultra-vires

2. Lack of Jurisdiction
If adjudication is done without authority given by constitution and laws

Decisions taken by such officials or agency is invalid.

(a) Error in formation

If the administrative tribunal is not formed in accordance with the law.

(b) Subject matter beyond jurisdiction
If the subject-matter of the dispute is beyond the jurisdiction of the decision-maker.

(c) If the parent Act is ultra-vires the Constitution

If the parent Act or its provisions contradicts with the constitution, to the extent of contradiction the provisions of the Act invalid, and decisions taken pursuant to such provisions is invalid.

(d) Error in determination of preliminary question

The jurisdiction of the tribunal may depend upon the existence of certain facts or conditions. The questions as to whether such facts or conditions exists is called collateral or preliminary question.

If preliminary question is beyond jurisdiction of decision-maker, then decision taken is invalid.

Appropriate person, proceeding and remedy are considered in determining if preliminary question is within jdx. Right remedy sought by right person in the right proceeding.

(e) To use jurisdiction for another purpose

Use power for an objective other than or beyond the objective of the Act.

(f) Excess of Jurisdiction

Where the quasi judicial body or administrative tribunal exceeds the jurisdiction conferred on it.

Ramji Shrestha v. District Administration Office Nuwakot (NKP 2042, p.117)

The DAO received a petition regarding a transaction agreement between individuals, upon which it ordered for the execution of a document. The decision was held invalid by SC.

(vii) To review one’s decision himself

If an administrative tribunal decides a case as well as reviews its own decision, unless authorized to do so by a statute, then the SC can deem it invalid on ground of lack of jdx

3. Decline of Jurisdiction
Administrative tribunal or agency declines to perform its functions as per its jurisdiction.

SC can issue mandamus ordering the administrative agency or tribunal to perform in accordance with its jurisdiction.

(i) Rule against dictation

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

(ii) Delegate its Power

An administrative tribunal or agency should not delegate its judicial functions to a lower or assisting employee or to another agency or person. If it does then its decline of jdx.

(iii) Fails to exercise its powers

If the administrative agency or tribunal fails to exercise it authority, because of inability to resolve any procedural or doctrinal issue or due to erroneous interpretation of its jdx

4. Questions of Facts and Questions of Law
Both need to be correctly determined by the decision-maker, else subject to judicial review.

5. Principles of Natural Justice
(a) No one should be judge in own case

(b) Right to fair hearing

Structure and Procedure of Quasi-Judicial Bodies/Administrative Tribunals

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

Structure

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

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

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

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

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

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

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

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

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

Procedure

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

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

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

(Courts follow a uniform, fixed statutory procedure)

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

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

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

(vii) Quicker, cheaper than courts usually.

Sub Delegation

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

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.

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

Application of the rule by the Supreme Court of Nepal

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

Application of the rule by the Supreme Court of Nepal:

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

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

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

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

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

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

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

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

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

Judicial control over delegated legislation

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

Judicial control over delegated legislation occupies an important place in the field of control mechanisms. Judicial control means assessment by the court of the legal validity of a piece of delegated legislation which the court may do first, with reference to the constitution by applying the doctrine of ultra vires and secondly, with reference to the other recognized principles of law. It is the most effective method to keep the administration within legal boundaries. The interim constitution of Nepal 2063 the fundamental law of the land and all laws inconsistent with it shall be void. And can be so declared by the supreme court of Nepal. And stressing the importance and the judicial review supreme court has also stated, “If court were to close its door for the injured people whose legal and constitutional rights have been curtailed, then injured will always suffer injustice and the government and public officials will become more and more arbitrary and ultimately the constitutional aim of rule of law will not be achieved. It is the integral constitutional principle that forms a very important regulating mechanism of democratic government and for the protection of people’s rights. It is not only a means to checking executive action but also an ultimate watchdog of the people’s fundamental rights.

Judicial is adjective of the judiciary. It means 1) the power of a court to interpret statutes and to declare them when they violate the constitution. 2) A form of appeal from an administrative body to the courts for control of the agency’s finding of fact or law.

The general theory of judicial control is called the doctrine of Ulta-vires. Administrative power derives from the statute. The limits are found in the statute itself or in the general principles of the construction by the courts. Judicial control, therefore, means control and is based on the fundamental principle of the legal system that powers can be validly exercised only within their true limits.

The scope of judicial control may be classified by the following principles.

Breach of the principle of Natural justice
Excess of power of “substantive” ultra vires.
Errors of law
Failure to perform a duty
Bad faith or abuse of power

Administrative Law

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

Introduction

Development of Administrative Law

Classification of Administrative Power / Action

Delegated Legislation

Control of Delegated Legislation

Reasons and Type of Control

Administrative Discretion

Administrative Adjudication

Quasi Judicial Bodies

Quasi Judicial Bodies

Principles of Natural Justice

Ombudsman

Role of CIAA as an Ombudsman in Nepal

Public Undertaking

Public undertaking

Supreme Court's Role in Development of Administrative Law in Nepal

Reasons for Growth of Delegated Legislation

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

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

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

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

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

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.

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

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.

Reasons for the Growth of Administrative agencies/ Administrative Adjudication

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Other Reasons

i) Intensive form of government; welfare state

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

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

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

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

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