In such a context, a study of administrative law becomes of great significance

In such a context, a study of administrative law becomes of great significance. The increase in administrative functions has created a vast new complex of relations between the administration and the citizen. The modern administration impinges more and more on the individual; it has assumed a tremendous capacity to affect the rights and liberties of the people. There is not a moment of a person’s existence when he is not in contact with the administration in one-way or the other. This circumstance has posed certain basic and critical questions for us to consider: • Does arming the administration with more and more powers keep in view the interests of the individual? • Are adequate precautions being taken to ensure that the administrative agencies follow in discharging their functions such procedures as are reasonable, consistent with the rule of law, democratic values and natural justice? • Has adequate control mechanism been developed so as to ensure that the administrative powers are kept within the bounds of law, and that it would not act as a power drunk creature, but would act only after informing its own mind, weighing carefully the various issues involved and balancing the individual’s interest against the needs of social control? It has increasingly become important to control the administration, consistent with the efficiency, in such a way that it does not interfere with impunity with the rights of the individual. Between individual liberty and government, there is an age-old conflict the need for constantly adjusting the relationship between the government and the governed so that a proper balance may be evolved between private interest and public interest. it is the demand of prudence that when sweeping powers are conferred on administrative organs, effective control- mechanism be also evolved so as ensure that the officers do not use their powers in an undue manner or for an unwarranted purpose. It is the task of administrative law to ensure that the governmental functions are exercised according to law, on proper legal principles and according to rules of reason and justice fairness to the individual concerned is also a value to be achieved along with efficient administration The goal of administrative law is to redress this inequality to ensure that, so far as possible,the individual and the state are placed on a plane of equality before the bar of justice. In reality there is no antithesis between a strong government and controlling the exercise of Module – 1 administrative powers.Administrative powers are exercised by thousands of officials and affect millions of people Administrative efficiency cannot be the end-all of administrative powers. There is also the questions of protecting individual’s rights against bad administration will lead to good administration. A democracy will be no better than a mere facade if the rights of the people are infringed with impunity without proper redressed mechanism. This makes the study of administrative law important in every country. For India, however, it is of special significance because of the proclaimed objectives of the Indian polity to build up a socialistic pattern of society. This has generated administrative process, and hence administrative law, on a large scale. Administration in India is bound to multiply further and at a quick pace. If exercised properly, the vast powers of the administration may lead to the welfare state; but, if abused, they may lead to administrative despotism and a totalitarian state A careful and systematic study and development of administrative law becomes a desideratum as administrative law is an instrument of control of the exercise of administrative powers. Nature and Definition of administrative Law Administrative Law is, in fact, the body of those which rules regulate and control the administration. Administrative Law is that branch of law that is concerned with the composition of power, duties, rights and liabilities of the various organs of the Government that are engaged in public administration. Under it, we study all those rules laws and procedures that are helpful in properly regulating and controlling the administrative machinery. There is a great divergence of opinion regarding the definition/conception of administrative law. The reason being that there has been tremendous increase in administrative process and it is impossible to attempt any precise definition of administrative law, which can cover the entire range of administrative process. Module – 1 Let us consider some of the definitions as given by the learned jurists. Au sti n 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 directly by the subordinate political superiors to whom portions of those are delegated or committed in trust. Holland regards Administrative Law “one of six” divisions of public law. In his famous book “Introduction to American Administrative Law 1958”, Bernard Schawartz has defined Administrative Law as “the law applicable to those administrative agencies which possess of delegated legislation and ad judicatory authority.” Jennings has defined Administrative Law as “the law relating to the administration. It determines the organization, powers and duties of administrative authorities.” Dicey in 19century defines it as.the Firstly , portion of a nation’s legal system which determines the legal statues and liabilities of all State officials. Secondly, defines the right and liabilities of private individuals in their dealings with public officials. Thirdly , specifies the procedure by which those rights and liabilities are enforced. This definition suffers from certain imperfections. It does not cover several aspects of administrative law, e.g. it excludes the study of several administrative authorities such as public corporations which are not included within the expression “State officials,” it excludes the study of various powers and functions of administrative authorities and their control. His definition is mainly concerned with one aspect of administrative. Law, namely, judicial control of public officials. A famous jurist Hobbes has written that there was a time when the society was in such a position that man did not feel secured in it. The main reason for this was that there were no such things as administrative powers. Each person had to live in society on the basis of his own might accordingly to Hobbes, “ In such condition, there was no place for industry, arts, letters and society. Worst of all was the continual fear of danger, violent death and life of man solitary poor, nasty and brutish and short. The jurists are also of the view that might or force as a means for the enforcement of any decision by man could continue only for some time. To put it is other words, the situation of “might is right” was only temporary. It Module – 1 may be said to be a phase of development. This can be possible only through the medium of law. Hence, law was made and in order to interpret it and in order to determine the rights and duties on the basis of such interpretation, this work was entrusted to a special organ that we now call judiciary. The organ, which was given the function of enforcing the decision of judicial organ, is called executive. It has comparatively a very little concern with the composition of the executive organ. K.C. Davis has defined administrative law in the following words: “ Administrative Law is the law concerning the powers and procedures of administrative agencies including specially the law governing judicial review of administrative action.” In the view of Friedman, Administrative Law includes the following. • The legislative powers of the administration both at common law and under a vast mass of statutes. • The administrative powers of the administration. • Judicial and quasi-judicial powers of the administration, all of them statutory. • The legal liability of public authorities. • The powers of the ordinary courts to supervise the administrative authorities. The Indian Institution of Law has defined Administrative Law in the following words; “ Administrative Law deals with the structure, powers and functions of organs of administration, the method and procedures followed by them in exercising their powers and functions, the method by which they are controlled and the remedies which are available to a person against them when his rights are infringed by their operation.” A careful perusal of the above makes it clear that Administrative Law deals with the following problems: A.Who are administrative authorities? B.What is the nature and powers exercised by administrative authorities? C.What are the limitations, if any, imposed on these powers? D.How the administration is kept restricted to its laminose? E.What is the procedure followed by the administrative authorities? Module – 1 F.What remedies are available to persons adversely affected by administration? Thus the concept of administrative law has assumed great importance and remarkable advances in recent times. There are several principles of administrative law, which have been evolved by the courts for the purpose of controlling the exercise of power. So that it does not lead to arbitrariness or despotic use of power by the instrumentality or agencies of the state. During recent past judicial activism has become very aggressive. It was born out of desire on the part of judiciary to usher in rule of law society by enforcing the norms of good governance and thereby produced a rich wealth of legal norms and added a new dimension to the discipline administrative law. In view of above discussion we can derive at the following conclusions so far as nature and scope of administrative law is concerned: - The administrative law has growing importance and interest and the administrative law is the most outstanding phenomena in the welfare state of today. Knowledge of administrative law is as important for the officials responsible for carrying on administration as for the students of law. Administrative law is not codified like the Indian Penal code or the law of Contracts. It is based on the constitution. No doubt the Court of Law oversees and ensure that the law of the land is enforced. However, the “very factor of a rapid development and complexity which gave rise to regulation made specific and complete treatment by legislation impossible and, instead, made necessary the choice of the body of off icers who could keep abreast of the novelties and intricacies which the problems presented.” Administrative law is essentially Judge made law. It is a branch of public law as compared to private law-relations inter-se. Administrative law is an ever-expanding subject in developing society and is bound to grow in size as well as quality in coming the decades. We need an ef ficient regulatory system, which ensures adequate protection of the people’s Rights. Principles of administrative law emerge and development whenever any person becomes victim of arbitrary exercise of Module – 1 public power. Therefore administrative law deals with relationship individual with power. The administrative agencies derive their authority from constitutional law and statutory law. The laws made by such agencies in exercise of the powers conferred on them also regulate their action. The principle f eatures are: (a) transfer of power by legislature to administrative authorities, (b) exercise of power by such agencies, and (c) judicial review of administrative decisions. Administrative law relates to individual rights as well as public needs and ensures transparent, open and honest governance,which is more people-friendly.Inadequacy of the traditional Court to respond to new challenges has led to the growth of administrative adjudicatory process. The traditional administration of justice is technical, expensive anddilatory and is not keeping pace with the dynamics of ever-increasing subject matter. Because of limitation of time, the technical nature of legislation, the need for flexibility,experimentations and quick action resulted in the inevitable growth of administrative legislative process.Administrative law deals with the organization and powers of administrative and powers quasi-administrative agencies Administrative law primarily concerns with official action and the procedure by which the official action is reached.Administrative law includes the control mechanism (judicial review) by which administrative authorities are kept within bounds and made effective.Sources of Administrative Law Module – 1 There are four principal sources of administrative law in India:- • Constitution of India • Acts and Statutes . Ordinances, Administrative directions, notifications and Circulars • Judicial decisions Future Role of Administrative Law The administrative law has come to stay because it provides an instrument of control of the exercise of administrative powers. The administrative law has to seek balance between the individual right and public needs. As we know in the society there exists conflict between power and justice wherever there is power, there exist probabilities of excesses in exercise of the power. One way is to do nothing about this and let the celebrated Kautilyan Matsanayaya (big fish eating little fish) prevail. The other way is to try and combat this. Administrative law identifies the excesses of power and endeavors to combat there. The learned Author, Upender Baxi, while commenting on the administrative law has rightly observed in.(The Myth and reality of the Indian adminis trative law, Introduction by Upendra Baxi in administrative law ed. by I.P. Massey2001 at XVIII)“to understand the stuff of which administrative law is made one has tounderstand relevant domains of substantive law to which courts apply the more general principles of legality and fairness. In this way a thorough study of administrative law is in effect, a study of the Indian legal system a whole. More importantly, it is study of the pathology of power in a developing society.”Growth in science and technology and modernization has resulted in great structural changes accompanied with increase in the aspirations of people as to quality of life. We know sociology-Eco-politico and multi dimensional problems which people face due to technological development cannot solved except by the growth of administration and the law regulating administration. No doubt the principles evolved by the court for the purpose of controlling the misuse of governmental of power is satisfactory. Yet it is said that the administrative law in India is an instrument in the hands of middle class Indians to combat administrative authoritarianism through the instrumentality of the court and there is need to make administrative law a shield for the majority of Indians living in rural area and people under poverty line. There for easy access to justice is considered important form of accountability this may include informal procedure, Module – 1 speedy and less expensive trial,legal aid,public interest litigation, easy bail etc.Further, the multifarious activities of the state extended to every social problems of man such as health education employment, old age pension production, control and distribution of commodities and other operations public utilities. This enjoins a new role for administration and also for the development of administrative law.Separation of Powers The doctrine of Separation of Powers is of ancient origin. The history of The origin of the doctrine is traceable to Aristotle. In the 16th and 17th Centuries, French philosopher John Boding and British Politician Locke respectively had expounded the doctrine of separation of powers. But it was Montesquieu, French jurist, who for the first time gave it a systematic and scientific formulation in his book ‘Esprit des Lois’ (The spirit of the laws).Montesquieu’s view Montesquieu said that if the Executive and the Legislature are the same person or body of persons, there would be a danger of the Legislature enacting oppressive laws which the executive will administer to attain its own ends, for laws to be enforced by the same body that enacts them result in arbitrary rule and makes the judge a legislator rather than an interpreter of law. If one person or body of persons could exercise both the executive and judicial powers in the same matter, there would be arbitrary powers, which would amount to complete tyranny, if the legislative power would be added to the power of that person. The value of the doctrine lies in the fact that it seeks to preserve human liberty by avoiding the concentration of powers in one person or body of persons. The different organs of government should thus be prevented from encroaching on the province of the other organ. This theory has had different application in France, USA and England. In France, it resulted in the rejection of the power of the courts to review acts of the legislature or the executive. The existence of separate administrative Module – 1 courts to adjudicate disputes between the citizen and the administration owes its origin to the theory of separating of powers. The principle was categorically adopted in the making of the Constitution of the United States of America. There, the executive power is vested in the president. Article the legislative power in congress and the judicial power in the Supreme Court and the courts subordinates thereto. The President is not a member of the Congress. He appoints his secretaries on the basis not of their party loyalty but loyalty to himself. His tenure does not depend upon the confidence of the Congress in him. He cannot be removed except by impeachment, However, the United States constitution makes departure from the theory of strict separation of powers in this that there is provision for judicial review and the supremacy of the ordinary courts over the administrative courts or tribunals. In the British Constitution the Parliament is the Supreme legislative authority. At the same time, it has full control over the Executive. The harmony between the Legislator and the (Executive) is secured through the Cabinet. The Cabinet is collectively responsible to the Parliament. The Prime Minister is the head of the party in majority and is the Chief Executive authority. He forms the Cabinet. The Legislature and the Executive are not quite separate and independent in England, so far as the Judiciary is concerned its independence has been secured by the Act for Settlement of 1701 which provides that the judges hold their office during good behavior, and are liable to be removed on a presentation of addresses by both the Houses of Parliament. They enjoy complete immunity in regard to judicial acts. In India , the executive is part of the legislature. The President is the head of the executive and acts on the advice of the Council of Ministers. Article 53 and 74 (1) He can be impeached by Parliament. Article 56 (1) (b) read with Art 61, Constitution. The Council of Ministers is collectively responsible to the LokSabha Article 75 (3) and each minister works during the pleasure of the President. Article 75 (2) If the Council of Ministers lose the confidence of the House, it has to resign.Functionally, the President’s or the Governor’s assent is required for allegations. (Articles 111,200 and Art 368). The President or the Governor has power of making ordinances when both Houses of the legislature are not in session. (Articles 123 and 212). This is legislative power, and an ordinance has the same status as that of a law of the legislature. (AK Roy v Union of India AIR The President or the Governor has the power to grant pardon 1982 SC 710)(Articles 72 and 161) The legislature performs judicial function while committing for contempt those who defy its orders or commit breach of privilege (Articles 105 (3) 194 (3) Thus, the executive is dependent on the Legislature and while it performs some legislative functions such as subordinate it, also performs some executive functions such as those required for maintaining order in the house.There is, however, considerable institutional separation between the judiciary and the other organs of the government. (See Art 50) Module – 1 The Judges of the Supreme Court are appointed by the President in consultation with the Chief justice of India and such of the judges of the supreme Court and the High Courts as he may deem necessary for the purpose.(Article 124 (2)) The Judges of the High Court are appointed by the President after consultation with the Chief Justice of India, the Governor of the state, and, in the case of appointment of a judge other than the Chief justice, the Chief Justice of the High Court( Article 217 (1).)It has now been held that in making such appointments, the opinion of theChief justice of India shall have primacy. (Supreme Court Advocates on Record Association.) The judges of the high Court and the judges of theSupreme Court cannot be removed except for misconduct or incapacity and unless an address supported by two thirds of the members and absolute majority of the total membership of the House is passed in each House of Parliament and presented to the President Article 124 (3) An impeachment motion was brought against a judge of the Supreme court, Justice Ramaswami, but it failed to receive the support of the prescribed number of members of Parliament. The salaries payable to the judges are provided in the Constitution or can be laid down by a law made by Parliament. Article 125 (1) and Art 221 (1).Every judge shall be entitled to such privileges and allowances and to such rights in respect of absence and pension, as may from time to time be determined by or under any law made by Parliament and until so determined, to such privileges, allowance and rights as are specified in the Second Schedule. Neither the privileges nor the allowance nor his rights in respect of leave of absence or pension shall be varied to his disadvantage after his appointment.Appointments of persons to be, and the posting and promotion of, district judges in any state shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such state (Article 233) The control over the subordinate courts is vested in the acts of the Legislature as well as the executive. The Supreme Court has power to make rules (Article 145) and exercises administrative control over its staff.The judiciary has power to enforce and interpret laws and if they are found in violation of any provision of the Constitution, it can declare them UN-constitutional and therefore, void. It can declare the executive action void if it is found against any provisions of the Constitution. Article 50 provides that the State shall take steps to separate the judiciary from the executive.Thus, the three organs of the Government (i.e. the Executive, the Legislature and the Judiciary) are not separate. Actually the complete demarcation of the functions of these organs of the Government is not possible. Module – 1 The Constitution of India does not recognize the doctrine of separation of power in its absolute rigidity, but the functions of the three organs of the government have been sufficiently differentiated.( Ram Jawaya v. State of Punjab,None of the three of organs of the Government can take over AIR 1955 SC 549)the functions assigned to the other organs.( Keshanand Bharti v. State of Kerala, AIR1973 SC 1461, Asif Hameed v. State of J&K 1989 AIR, SC 1899)In State of Bihar v. Bihar Distillery Ltd.,the Supreme Court(AIR 1997 SC 1511) has held that the judiciary must recognize the fundamental nature and importance of the legislature process and must accord due regard and deference to it. The Legislative and Executive are also expected to show due regard and deference to the judiciary. The Constitution of India recognizes and gives effect to the concept of equality between the three organs of the Government. The concept of checks and balance is inherent in the scheme. RULE OF LAW The Expression “ Rule of Law” plays an important role in the 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 delegality’. i.e. 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 maybe taken to mean mainly a rule or principle which governs the external actions of the human beings and which is recognized and applied by the State in the administration of justice.Rule of Law is a dynamic concept.It does not admit of being readily expressed. Hence, it is difficult to define it.Simply speaking, it means supremacy of law or predominance of law and essentially, it consists of values.The concept of the rule of Law is of old origin. Edward Coke is said to be the originator of this concept, when he said that the King must be under God and Law and thus vindicated the supremacy of law over the pretensions of the executives. Prof. A.V. Dicey later developed on this concept in the course of his lectures at the Oxford University. Dicey was an individualist; he wrote about the concept of the Rule of law at the end of the golden Victorian era of laissez-faire in England. That was the reason why Dicey’s concept of the Rule of law contemplated the absence of wide powers in the hands of Module – 1 government officials. According to him, wherever there is discretion there is room for arbitrariness. Further he attributed three meanings to Rule of Law. (1)The First meaning of the Rule of Law is that ‘no man is punishable or can lawfully be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land . (The view of Dicey, quoted by Garner in his Book on ‘Administrative Law’.) (2)The Second Meaning of the Rule of Law is that no man is above law. Every man whatever be his rank or condition. is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals (Ibid). (3)The Third meaning of the rule of law is that the general principle of the constitution are the result of judicial decisions determining the rights of private persons in particular cases brought before the court. (View of Dicey, quoted by Garner in his book on Administrative Law, p.11.) The view of Dicey as to the meaning of the Rule of Law has been subject of much criticism. The whole criticism may be summed up as follows. Dicey has opposed the system of providing the discretionary power to the administration. In his opinion providing the discretionary power means creating the room for arbitrariness, which may create as serious threat to individual freedom. Now a days it has been clear that providing the discretion to the administration is inevitable. The opinion of the Dicey, thus, appears to be outdated as it restricts the Government action and fails to take note of the changed conception of the Government of the State. Dicey has failed to distinguish discretionary powers from the arbitrary powers. Arbitrary power may be taken as against the concept of Rule of Law . In modern times in all the countries including England, America and India, the discretionary powers are conferred on the Government. The present trend is that discretionary power is given to the Government or administrative authorities, but the statute which provides it to the Government or the administrative officers lays down some guidelines or principles according to which the discretionary power is to be exercised. The administrative law is much concerned with the control of the discretionary power of the administration. It is engaged in finding out the new ways and means of the control of the administrative discretion. According to Dicey the rule of law requires that every person should be subject to the ordinary courts of the country. Dicey has claimed that there is no separate law and separate court for the trial of the Government servants in England. He critcised the system of droit administratif prevailing in France. In France there are two types of courts Administrative Court and Ordinary Civil Courts. The disputes between the citizens and the Administration are decided by the Administrative courts while the other cases, (i.e. the disputes between the citizens) are decided by the Civil Court. Dicey was very critical to the separation for deciding the disputes between the administration and the citizens Module – 1 According to Dicey the Rule of Law requires equal subjection of all persons to the ordinary law of the country and absence of special privileges for person including the administrative authority. This proportion of Dicey does not appear to be correct even in England. Several persons enjoy some privileges and immunities. For example, Judges enjoy immunities from suit in respect of their acts done in discharge of their official function. Besides, Public Authorities Protection Act, 1893, has provided special protection to the official. Foreign diplomats enjoy immunity before the Court. Further, the rules of ‘public interest privilege may afford officials some protection against orders for discovery of documents in litigation.’ Thus, the meaning of rule of law taken by Dicey cannot be taken to be completely satisfactory. Third meaning given to the rule of law by Dicey that the constitution is the result of judicial decisions determining the rights of private persons in particular cases brought before the Courts is based on the peculiar character of the Constitution of Great Britain. In spite of the above shortcomings in the definition of rule of law by Dicey, he must be praised for drawing the attention of the scholars and authorities towards the need of controlling the discretionary powers of the administration. He developed a philosophy to control the Government and Officers and to keep them within their powers. The rule of law established by him requires that every action of the administration must be backed by law or must have been done in accordance with law. The role of Dicey in the development and establishment of the concept of fair justice cannot be denied. The concept of rule of law, in modern age, does not oppose the practice of conferring discretionary powers upon the government but on the other hand emphasizing on spelling out the manner of their exercise. It also ensures that every man is bound by the ordinary laws of the land whether he be private citizens or a public officer; that private rights are safeguarded by the ordinary laws of the land (See Journal of the Indian law Institute, 1958-59, pp. 31-32) Thus the rule of law signifies that nobody is deprived of his rights and liberties by an administrative action; that the administrative authorities perform their functions according to law and not arbitrarily; that the law of the land are not unconstitutional and oppressive; that the supremacy of courts is upheld and judicial control of administrative action is fully secured. Basic Principles of the Rule of Law • Law is Supreme, above everything and every one. No body is the above law. . All things should be done according to law and not according to whim • No person should be made to suffer except for a distinct breach of law. • Absence of arbitrary power being hot and sole of rule of law • Equality before law and equal protection of law Module – 1 • Discretionary should be exercised within reasonable limits set by law • Adequate safeguard against executive abuse of powers • Independent and impartial Judiciary • Fair and Justice procedure • Speedy Trial Rule of Law and Indian Constitution In India the Constitution is supreme. The preamble of our Constitution clearly sets out the principle of rule of law. It is sometimes said that planning and welfare schemes essentially strike at rule of law because they affect the individual freedoms and liberty in may ways. But rule of law plays an effective role by emphasizing upon fair play and greater accountability of the administration. It lays greater emphasis upon the principles of natural justice and the rule of speaking order in administrative process in order to eliminate administrative arbitrariness. Rule of Law and Case law In an early case S.G. Jaisinghani V. Union of India and others, (AIR 1967 SC the Supreme Court portrayed the essentials of rule of law in a very lucid 1427) manner. It observed: “ The absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion when conferred upon executive authorities must be continued within clearly defined limits. The rule of law from this points of view means that decisions should be made by the application of known principles and rules and, in general such decision should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is antithesis of a decision taken in accordance with the rule of law”. The Supreme Court in a case, namely, Supreme Court Advocates on Record Association V. Union of India, reiterated that absence of (AIR 1994 SC 268 at p.298) arbitrariness is one of the essentials of rule of law. The Court observed. “For the rule of law to be realistic there has to be rooms for discretionary authority within the operation of rule of law even though it has to be reduced to the minimum extent necessary for proper, governance, and within the area of discretionary authority, the existence of proper guidelines or norms of general application excludes any arbitrary exercise of discretionary authority. In such a situation, the exercise of discretionary authority in its application to individuals, according to proper guidelines and norms, further reduces the area of discretion, but to that extent discretionary authority has to be given to make the system workable. The recent expansion of rule of law in every field of administrative functioning has assigned it is a place of special significance in the Indian administrative Module – 1 law. The Supreme Court, in the process of interpretation of rule of law vis-à- vis operation of administrative power, in several cases, emphasized upon the need of fair and just procedure, adequate safeguards against any executive encroachment on personal liberty, free legal aid to the poor and speedy trail in criminal cases as necessary adjuncts to rule of law. Giving his dissenting opinion in the Death penalty case, Mr. Justice Bhagwati explains fully the significance of rule of law in the following words: The rule of law permeates the entire fabric of the Constitution and indeed forms one of its basic features. The rule of law excludes arbitrariness, its postulate is ‘intelligence without passion’ and reason free from desire. Wherever we find arbitrariness or unreasonableness there is denial of the rule of law. Law in the context of rule of law does not mean any law enacted by legislative authority, howsoever arbitrary, despotic it may be, otherwise even in dictatorship it would be possible to say that there is rule of law because every law made by the dictator, however arbitrary and unreasonable, has to be obeyed and every action has to be taken in conformity with such law. In such a case too even where the political set-up is dictatorial it is the law that governs the relationship between men The modern concept of the Rule of Law is fairly wide and, therefore, sets up an idea for government to achieve. This concept was developed by the International Commission of Jurists, known as Delhi Declaration, 1959, which was later on confirmed at Lagos in 1961. According to this formulation, the Rule of Law implies that the functions of the government in a free society should be so exercised as to create conditions in which the dignity of man as an individual is upheld. During the last few years the Supreme Court in India has developed some fine principles of Third World jurisprudence. Developing the same new constitutionalism further, the Apex Court in Veena Seth v. State (AIR 1983 SC of Bihar extended the reach of the Rule of Law to the poor and the 339) downtrodden, the ignorant and the illiterate, who constitute the bulk of humanity in India, when it ruled that the Rule of Law does not exist merely for those who have the means to fight for their rights and very often do so for the perpetuation of the status quo, which protects and preserves their dominance and permits them to exploit a large section of the community. The opportunity for this ruling was provided by a letter written by the Free Legal Aid Committee, Hazaribagh, Bihar drawing its attention to unjustified and illegal detention of certain prisoners in jail for almost two or three decades. Recent aggressive judicial activism can only be seen as a part of the efforts of the Constitutional Courts in India to establish rule-of-law society, which implies that no matter how high a person, may be the law is always above him. Court is also trying to identify the concept of rule of law with human rights of the people. The Court is developing techniques by which it can force the government not only to submit to the law but also to create conditions where people can develop capacities to exercise their rights properly and meaningfully. The public administration is responsible for effective implementation of rule of law and constitutional commands, which effectuate Module – 1 fairly the objective standards laid down by law. Every public servant is a trustee of the society and is accountable for due effectuation of constitutional goals. This makes the concept of rule of law highly relevant to our context. Droit Administratif Meaning of Droit administratif French administrative law is known as Droit Administratif which means a body of rules which determine the organization,powers and duties of public administration and regulate the relation of the administration with the citizen of the country.Droit Administrative does not represent the rules and principles enacted by Parliament. It contains the rules developed by administrative courts. Napoleon Bonaparte was the founder of the Droit administrative . It was he who established the Conseil d’Etat. He passed an ordinance depriving the law courts of their jurisdiction on administrative matters and another ordinance that such matters could be determined only by the Conseil d’Etat. Waline,the French jurist, propounds three basic principles of Droit administrative: 1.the power of administration to act suo motu and impose directlyon the subject the duty to obey its decision; 2.the power of the administration to take decisions and to execute them suo motu may be exercised only within the ambit of law which protects individual liberties against administrative arbitrariness; 3.the existence of a specialized administrative jurisdiction. One good result of this is that an independent body reviews every administrative action The Conseil d’Etat is composed of eminent civil servants, deals with a variety of matters like claim of damages for wrongful acts of Government servants, income-tax, pensions, disputed elections, personal claims of civil servants against the State for wrongful dismissal or suspension and so on. It has interfered with administrative orders on the ground of error of law, lack of jurisdiction, irregularity of procedure and detournement depouvior (misapplication of power). It has exercised its jurisdiction liberally.Main characteristic features of droit administratif. The following characteristic features are of the Droit Administratif in France:- Module – 1 1.Those matters concerning the State and administrative litigation falls within the jurisdiction of administrative courts and cannot be decided by the land of the ordinary courts. 2.Those deciding matters concerning the State and administrative litigation, rules as developed by the administrative courts are applied. 3.If there is any conflict of jurisdiction between ordinary courts and administrative court, it is decided by the tribunal des conflicts. 4.Conseil d’Etat is the highest administrative court. Prof. Brown and Prof. J.P.Garner have attributed to a combination of following factors as responsible for its success i)The composition and functions of the Conseil d’Etat itself; ii)The flexibility of its case-law; iii)The simplicity of the remedies available before the administrative courts; iv)The special procedure evolved by those courts; and v)The character of the substantive law, which they apply. Despite the obvious merits of the French administrative law system, Prof.Dicey was of the opinion that there was no rule of law in France nor was the system so satisfactory as it was in England. He believed that the review of administrative action is better administered in England than in France. The system of Droit Administratif according to Dicey, is based on the following two ordinary principles which are alien to English law— Firstly, that the government and every servant of the government possess, as representative of the nation, a whole body of special rights, privileges or prerogatives as against private citizens, and the extent of rights, privileges or considerations which fix the legal rights and duties of one citizen towards another. An individual in his dealings with the State does not, according to French law; stand on the same footing as that on which he stands in dealing with his neighbor. Secondly, that the government and its officials should be independent of and free from the jurisdiction of ordinary courts.It was on the basis of these two principles that Dicey observed that Droit Administratif is opposed to rule of law and, therefore, administrative law is alien to English system. But this conclusion of Dicey was misconceived.Droit Administratif that is, administrative law was as much there in England as it was in France but with a difference that the French Droit Administrat if was based on a system, which was unknown to English law. In his later days after examining the things closely,Dicey seems to have perceptibly modified his stand. Module – 1 Despite its overall superiority, the French administrative law cannot be characterized with perfection. Its glories have been marked by the persistent slowness in the judicial reviews at the administrative courts and by the difficulties of ensuring the execution of its last judgment. Moreover, judicial control is the only one method of controlling administrative action in French administrative law, whereas, in England, a vigilant public opinion, a watchful Parliament, a self-disciplined civil service and the jurisdiction of administrative process serve as the additional modes of control over administrative action. By contrast, it has to be conceded that the French system still excels its counterpart in the common law countries of the world. CLASSIFICATION OF ADMINISTRATIVE ACTION Administrative action is a comprehensive term and defies exact definition. In modern times the administrative process is a by-product of intensive form of government and cuts across the traditional classification of governmental powers and combines into one all the powers, which were traditionally exercised by three different organs of the State. Therefore, there is general agreement among the writers on administrative law that any attempt of classifying administrative functions or any conceptual basis is not only impossible but also futile. Even then a student of administrative law is compelled to delve into field of classification because the present-day law especially relating to judicial review freely employs conceptual classification of administrative action. Thus, speaking generally, an administrative action can be classified into four categories: i)Rule-making action or quasi-legislative action. ii) Rule-decision action or quasi-judicial action. iii) Rule-application action or administrative action. iv) Ministerial action i) Rule-making action or quasi-legislative action – Legislature is the law-making organ of any state. In some written constitutions, like the American and Australian Constitutions, the law making power is expressly vested in the legislature. However, in the Indian Constitution though this power is not so expressly vested in the legislature, yet the combined effect of Articles 107 to III and 196 to 201 is that the law making power can be exercised for the Union by Parliament and for the States by the respective State legislatures. It is the intention of the Constitution-makers that those bodies alone must exercise this law-making power in which this power is vested. But in the twentieth Century today these legislative bodies cannot give that quality and quantity of laws, which are required for the efficient functioning of a modern intensive form of government. Therefore, the Module – 1 delegation of law-making power to the administration is a compulsive necessity. When any administrative authority exercises the law-making power delegated to it by the legislature, it is known as the rule-making power delegated to it by the legislature, it is known as the rule-making action of the administration or quasi-legislative action and commonly known as delegated legislation. Rule-making action of the administration partakes all the characteristics, which a normal legislative action possesses. Such characteristics may be generality, prospectivity and a behaviour that bases action on policy consideration and gives a right or a disability. These characteristics are not without exception. In some cases, administrative rule-making action may be particularised, retroactive and based on evidence. (ii) Rule-decision action or quasi-judicial action Today the bulk of the decisions which affect a private individual come not from courts but from administrative agencies exercising ad judicatory powers. The reason seems to be that since administrative decision-making is also a by-product of the intensive form of government, the traditional judicial system cannot give to the people that quantity of justice, which is required in a welfare State. Administrative decision-making may be defined, as a power to perform acts administrative in character, but requiring incidentally some characteristics of judicial traditions. On the basis of this definition, the following functions of the administration have been held to be quasi-judicial functions: 1.Disciplinary proceedings against students. 2.Disciplinary proceedings against an employee for misconduct. 3.Confiscation of goods under the sea Customs Act, 1878. 4.Cancellation, suspension, revocation or refusal to renew license or permit by licensing authority. 5.Determination of citizenship. 6.Determination of statutory disputes. 7.Power to continue the detention or seizure of goods beyond a particular period. 8.Refusal to grant ‘no objection certificate’ under the Bombay Cinemas (Regulations) Act, 1953. 9.Forfeiture of pensions and gratuity. 10.Authority granting or refusing permission for retrenchment. Module – 1 30