Transcript Administrative Law

Raison d'etre In Growth of
ADMINISTRATIVE
LAW
Mian Ali Haider
L.L.B., L.L.M (Cum Laude) U.K.
INTRODUCTION
Administrative Law is that portion of law which
determines the organization, powers and duties of
administrative authorities.
 Mr. M.J Fort of England defined administrative
law for the first time in the year 1929 in his book
on administrative law stating that administrative
law is that portion of law which is traced in rules,
regulations, notifications, order, bye-laws,
schemes, circulars etc and are also implicitly
found in the prerogatives with an object to fulfill
public law.
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The most significant and outstanding development of the
twentieth century is the rapid growth of administrative law.
Though administrative law has been in existence, in one form
or the other, before the 20th century, it is in this century that
the philosophy as to the role and function of the State has
undergone a radical change.
The governmental functions have multiplied by leaps and
bounds
Today, the State is not merely a police State, exercising
sovereign functions, but as a progressive democratic State, it
seeks to ensure social security and social welfare for the
common man, regulates the industrial relations, exercises
control over the production, manufacture and distribution of
essential commodities, starts many enterprises, tries to achieve
equality for all and ensures equal pay for equal work.
PROBLEMS WITH
DEFINITIONS
It is indeed difficult to evolve a scientific, precise
and satisfactory definition of Administrative Law.
 Many jurists have made attempts to define it, but
none of the definitions has completely demarcated
the nature, scope and content of administrative
law.
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Either the definitions are too broad and include much more
than necessary
 or they are too narrow and do not include all essential
ingredients
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For some it is the law relating to the control of
powers of the government.
The main object of this law is to protect individual
rights.
Others place greater emphasis upon rules which are
designed to ensure that the administration effectively
performs the tasks assigned to it.
Yet others highlight the principal objective of
Administrative Law as ensuring governmental
accountability, and fostering participation by
interested parties in the decision- making process
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Ivor Jennings gave most widely-accepted definition
 Administrative Law is the law relating to the
administration. It determines the organization, powers and
duties of the administrative authorities.
According to Griffith and Street, there are three difficulties:
 It does not distinguish administrative law from
constitutional law;
 It is a very wide definition, for the law which determines
the powers and functions of administrative authorities may
also deal with the substantive aspects of such powers, for
example, legislations relating to public health services,
houses, town and country planning, etc.; but these are not
included within the scope and ambit of administrative law.
 Again, it does not include the remedies available to an
aggrieved person when his rights are adversely affected by
the administration.
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According to Kennith Culp Davis
 “Administrative
Law is the law concerning the powers and
procedures of administrative agencies, including especially
the law governing judicial review of administrative action.”
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In one respect, this definition is proper as it puts
emphasis on procedure followed by administrative
agencies in exercising their powers.
However, it does not include the substantive laws
made by these agencies.
According to Davis, an administrative agency is a
governmental authority, other than a court and a
legislature which affects the rights of private parties
either through administrative adjudication or rulemaking.
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The difficulty in accepting this definition, however, is
that it does not include many non adjudicative and yet
administrative functions of the administration which
cannot be characterized as legislative or quasijudicial.
Another difficulty with this definition is that it puts
an emphasis on the control of the administrative
functions by the judiciary, but does not study other
equally important controls, e.g.
 parliamentary control of delegated legislation,
 control through administrative appeals or revisions
and the like
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According to Professor Upendra Bakshi of India
 “Administrative law as that portion of law which
controls the abuse of powers by the administrative
authorities so as to protect the rights of
individuals”
On an analysis of the above definitions, it may be
submitted that there is no comprehensive definition of
administrative law till today
 Administrative law is that portion of law which
determines the organization, powers and duties
of administrative authorities, administrative
agencies, quasi – administrative authorities and
the law that governs the judicial review of
administrative activities.
NATURE & SCOPE OF
ADMINISTRATIVE LAW
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The main object of the study of administrative law is
to unravel the way in which these administrative
authorities could be kept within their limits so that the
discretionary powers may not be turned into arbitrary
powers.
Kennith Culp Davis divided Admin law in three parts
 The powers vested in administrative agencies;
 The requirements imposed by law upon the
exercise of those powers; and
 Remedies
available
against
unlawful
administrative actions.
SOURCES OF ADMIN LAW
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In few legal systems, there are statutes laying down
rules, principles and procedures to be followed by
administrative agencies.
But even in absence of specific enactments dealing
with a particular situation, certain fundamental rules,
basic principles and minimum requirements of law
are well settled and all authorities are bound to
observe them.
A person adversely affected by any action of an
administrative authority has right to challenge such
action in an appropriate body or a court of law.
UNITED STATES OF AMERICA
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In USA the following are the sources of administrative law:
 Administrative Procedure Act, 1893
 Statutory Instrument Act, 1946
 Federal Tort Claim Act, 1947
 The Tribunals and Enquiries Act, 1958
 The Parliamentary Commissions Act, 1962
Apart from these legislations, the Constitution of USA is also
considered as a source of administrative law in addition to the
judgments delivered by the U.S Supreme Court
UNITED KINGDOM
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The sources of administrative law in the UK are:
 Rule
Publication Act, 1946
 Federal Torts Claims Act, 1947 etc.
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In the UK, since there is no written constitution, the
bulk source of administrative law is derived from the
decisions delivered by the superior courts, the
customary practices that are followed in the course of
administration and so on.
PAKISTAN & INDIA
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In India & Pakistan there is a written constitution
which is considered as a grundnorm.
Till today there is no legislation enacted either by the
parliament or state legislature exclusively on
administrative law.
In the absence of legislations, the main sources of
administrative law are rules, regulations, orders,
notifications, bye-laws, schemes, governmental
resolutions, memorandums, department circulars etc
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There are also legislations which provide for the
establishment of tribunals.
For example, ………..provides for the establishment
of national tribunals, industrial tribunals and labour
courts.
There are other legislations for establishing special
courts, but all these legislations provide different
procedures and different powers for functioning of
the tribunals.
Therefore, for the purpose of attaining uniformity in
maintaining procedures and for prescribing powers,
there is a need for comprehensive legislation on
administrative law in Pakistan & India.
Raison d'etre In Growth of
ADMINISTRATIVE LAW
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Administrative law is not a codified, written or well-defined
law like the Contract Act, Penal Code, Transfer of Property
Act, Evidence Act, Constitution of Pakistan, etc.
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It is essentially an unwritten, uncodified or ‘Judge-made’ law. It has
developed slowly in the wake of factual situations before courts.
In a welfare State, administrative authorities are called upon to perform
not only executive acts, but also quasi-legislative and quasijudicial
functions.
They used to deem the rights of parties and have become the ‘Fourth
branch’ of Government, a ‘Government in miniature’. Legal scholars
have compared administrative law to the rise of equity.
It has its origin in need and necessity in protecting personal
rights and in safeguarding individual interests.
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Administrative law is considered as an intensive form of
government.
It deals with the pathology of functions.
The functions that are discharged by the administrative
authorities differ from time to time depending upon the
changes in socio-economic conditions in any nation
There is a radical change in the philosophy as to the role
played by the State.
The negative policy of maintaining 'law and order' and of
'laissez faire' is given up.
The State has not confined its scope to the traditional and
minimum functions of defence and administration of justice,
but has adopted the positive policy and as a welfare State has
undertaken to perform varied functions.
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Urbanization –
Due to the Industrial Revolution in England and other
countries and due to the emergence of the factory
system in our country, people migrated from the
countryside to the urban areas in search of
employment in factories and large scale industries.
As a result of which there arose a need for increase in
providing housing, roads, parks, effective drainage
system etc.
 Legislations
were enacted to provide all these basic
facilities and accordingly administrative authorities were
required to make rules and regulations, frame schemes for
effective infrastructure and facilities which ultimately lead
to the growth of administrative law
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To meet Emergency Situations –
Enacting legislations, getting assent from the President is all a
lengthy process, whereas it is very easy and quick to frame
schemes and rules for meeting any emergency situations that
arise in a locality.
Due to the flexibility of making the rules, obviously there is a
constant growth of administrative law making in the country.
There is scope for experiments in administrative process.
Here, unlike legislation, it is not necessary to continue a rule
until commencement of the next session of the legislature.
Here a rule can be made, tried for some time and if it is found
defective, it can be altered or modified within a short period.
Thus, legislation is rigid in character while the administrative
process is flexible.
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The judicial system proved inadequate to decide and
settle all types of disputes.
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was slow, costly, inexpert, complex and formalistic.
 It was already overburdened, and it was not possible to
expect speedy disposal of even very important matters, e.g.
disputes between employers and employees, lockouts,
strikes, etc.
 These burning problems could not be solved merely by
literally interpreting the provisions of any statute, but
required consideration of various other factors and it could
not be done by the ordinary courts of law.
 Therefore, industrial tribunals and labour courts were
established, which possessed the techniques and expertise
to handle these complex problems.
The legislative process was also inadequate. It
had no time and technique to deal with all the
details.
 It was impossible for it to lay down detailed
rules and procedures, and even when detailed
provisions were made by the legislature, they
were found to be defective and inadequate,
e.g., rate fixing.
 And, therefore, it was felt necessary to
delegate some powers to the administrative
authorities.
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There is scope for experiments in administrative process. Here,
unlike legislation, it is not necessary to continue a rule until
commencement of the next session of the legislature. Here a
rule can be made, tried for some time and if it is found
defective, it can be altered or modified within a short period.
Thus, legislation is rigid in character while the administrative
process is flexible.
The administrative authorities can avoid technicalities.
Administrative law represents functional rather than a
theoretical and legalistic approach.
The traditional judiciary is conservative, rigid and technical. It
is not possible for the courts to decide the cases without
formality and technicality.
The administrative tribunals are not bound by the rules of
evidence and procedure and they can take a practical view of
the matter to decide complex problems.
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Administrative authorities can take preventive measures, e.g.
licensing, rate fixing, etc. Unlike regular courts of law, they
have not to wait for parties to come before them with disputes.
In many cases, these preventive actions may prove to be more
effective and useful than punishing a person after he has
committed a breach of any provision or law.
As Freeman says,
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"Inspection and grading of meat answers the consumer's need more
adequately than does a right to sue the seller after the consumer is
injured.“
Administrative authorities can take effective steps for
enforcement of the aforesaid preventive measures; e.g.
suspension, revocation and cancellation of licences,
destruction of contaminated articles, etc.
which are not generally available through regular courts of
law.
The END!!!
Thank you