Administrative Law

Growth of administrative law is the by-product of the establishment of welfare state. The multiplicity of state
functions necessitated a separate branch of law to organize and regulate different activities. Consequently
administrative law as a separate branch of legal discipline gained importance, especially during the middle of 20
century.

Administrative law is the body of law that governs the activities of administrative

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

Dicey on Administrative law

The rule of law, as Dicey has explained, is comprised of three basic tenets which are guaranteed to an individual in a
legal system. Reflective of the nature and precincts of the legal system, the presence of these tenets determine
whether a given legal system is inbuilt with an inherent protection for its subjects and thus whether
the governance is based upon the rule of law. In the context of the British legal system, Dicey in his treaties
describes the 'Rule of law' as under;

[First], Absence of discretionary power in the hands of officials. Dicey implies that justice must be done through
known principles

[Second] No person should be made to suffer in a body or property except for a breach of law established in the
ordinary legal manner before the ordinary courts of the land

1. Absence of special privileges for government officials on any other person

2. All persons irrespective of status must be subjected to ordinary court of law

Third], the rights of the people must flow from the customs and traditions of the people recognised by the courts in
the administration of justice

Having stated so, Dicey further went on to summarize the principles governing the rule of law as under;

It means, in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of
arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority
on the part of the government. Englishmen are rule by the law, and by the law alone; a man may with us be
punished for a breach of law, but he can be punished for nothing else. 
It means, again, equality before the law, or the equal subjection of all classes to the ordinary law of the land
administered by the ordinary law courts; the 'rule of law' in this sense excludes the idea of any exemption of
officials or others from the duty of obedience to the law which governs other citizens from the jurisdiction of the
ordinary tribunals; there can be nothing really corresponding to the 'administrative law' (droit administratif) or
the administrative tribunals (tribunaux administratifs) of France. The notions which lie at the bottom of the
'administrative law' known to foreign countries is, that affairs or disputes in which the government or
its servants are concerned are beyond the sphere of the civil courts and must be dealt with by special and more or
less official bodies. This idea is utterly unknown to the law of England, and indeed is fundamentally inconsistent
with our traditions and customs.

The 'rule of law', lastly, may be used as a formula for expressing the fact that with us the law of the constitution, the
rules which in foreign countries naturally form part of a constitutional code, are not the source but the consequence
of the rights of the individuals, as defined and enforced by the courts; that, in short, the principles of private law
have with us been by the action of the courts and the Parliament so extended as to determine the position of the
Crown and of its servants; thus the constitution is the result of the ordinary law of the land.

Thus, according to Dicey, the rule of law relates to avoidance of arbitrariness in all forms of governmental action,
equality of law and equal protection of laws; and the source of rights being the courts of law. Avid readers on Indian
constitutional law would agree that these principles have more or less been incorporated in the Constitution itself,
therefore ensuring that the country is governed on the lines as permeating 'rule of law' in every action. 

Criticism of Dicey formulation

Delegated Legislation

Traditional theory lays down that the function of the Executive is to administer the law enacted by Parliament. The
Finance Ministry is taking upon itself the power to lay down rules and some of these can be substantive,
encroaching upon the powers of Parliament. The I-T Department empowered the Board to make rules for carrying
out the purposes of the Act and for the ascertainment and determination of any class of income. The legislative
work in Parliament is heavy and it cannot discuss all matters in detail. It formulates the general policy and
empowers the Executive to fill in the details by issuing necessary rules, regulation, bye-laws, etc.

American Constitutional experts believe that Congress gets power from the people and, therefore, cannot further
delegate its legislative powers to the Executive or any other agency. In India, the Supreme Court has expressed the
view that there is an urgent need to limit the power of delegation. Under the guise of delegation, rules cannot be
framed to modify the declared legislative policy.

Uncontrolled, unguided

Excessive delegation of legislative powers will attract unwanted attention of the courts. There have been cases were
such delegation has been struck down by the Supreme Court. There cannot be unguided and uncontrolled
delegation.

The rule against excessive delegation flows from the principle of sovereignty of the people. The view of individual
officers, however competent they may be, cannot substitute the popular will as expressed by Parliament.

The ultimate power should always remain with the legislature, despite delegation. The legislature cannot abdicate
its function. That is why there is the requirement that rules made under the Act must be laid before Parliament.
Giving an Act retrospective effect is essentially a legislative function and it cannot be delegated.

And then, one has to contend with sub-delegation as well. The statute has conferred legislative powers on the
CBDT, but quite often these are delegated to subordinate agencies such as the Chief Commissioner or
Commissioner of Income-Tax. This process of sub-delegation may go through many stages, which can raise
questions about the validity of the powers exercised by the subordinate authorities.

This practice of sub-delegation has been criticised by jurists on the basis of the legal maxim delegates non potest
delegare(a delegate cannot further delegate). It reduces accountability of the administrative authority and weakens
the safeguards granted by the Act.

The late Justice Mukherjea observed: "Delegated legislation is an expression which covers a multitude of confusion.
It is an excuse for the legislature, a shield for the administrator and a provocation to the constitutional jurists."

While the legislature exceeds the limits of permissible delegation, courts are bound to strike down any arbitrary
exercise of powers on the basis of such delegation.