ADMINISTRATIVE LAW
Nature and Scope of Administrative Law
Q. 1. Discuss the nature and scope of Administrative Law.
Or
Discuss growth, function and status of Administrative Law in India.
Or
‘Administrative law has emerged as the most important branch of law recently in India.’ Explain.
Ans. Nature and scope of administrative law (or growth, function and status of Administrative Law)- Administrative law is a branch of public law, which deals with the administration. This branch of law determines the organisation, powers and duties of the administrative authorities. According to K.C. Davis, “those rules which are recognised by the courts as law and which relate to and regulate the administration of Government” may be described as Administrative law. (Administrative law, 1985, P. 4).
The nature of powers of administrative authorities can be studied under three heads:
(1) Legislative or Rule-making,
(2) Judicial or Adjudicative,
(3) Purely Executive.
Now the main consideration of administrative law is the control over the exercise of these powers. Prof. Wade rightly concludes.
‘The organisation, the methods, the powers (administrative, legislative or judicial) and the control by judicial authority of all public authorities is the ambit of administrative law in United Kingdom.’
According to Prof. K. C. Davis, “Administrative law, as the term is used, is limited to law concerning powers, procedures of administrative agencies, including especially the law governing judicial review of administrative actions. It does not include the enormous mass of substantive law produced by the agencies much of which is beyond the understanding of lawyer as such.”
The scope of administrative law in India is very much similar to that of United States. With the growth of the powers of administrative authorities the question as how to control these powers became very important. If the finality and exclusive character of administrative action is not subjected to judicial control and legislative responsibility, it would run havoc in society and what Hewart described: “New despotism would prevail over.”
The key function of administrative law is to find the ways, in which the administration could be kept within limits, so that discretionary powers may not become arbitrary powers. The task of administrative law is to reconcile; in the field of administrative action, democratic safeguards and standards of fair play with the effective conduct of government.
Under the province of administrative law the following points are notable:
1. Various administrative bodies- The existence of various administrative bodies such as Wage-Board, Central Board of Direct Taxes, Commission of Inquiry and Advisory Boards, Tariff Commissions, etc.
2. Rule-making power of administrative agencies- i.e., delegated legislation; safeguards against abuse of power and judicial control. Here we reach the pith of administrative law, i.e., power.
3. Judicial function of administrative agencies- Administrative tribunals- It includes administrative agencies like Claims Tribunal, Industrial Tribunal, the Income-tax Appellate Tribunal performing judicial functions. In this regard the jurisdiction of the Supreme Court and the High Court over them is also worth considering
4. Remedies- Various remedies, e.g., Mandamus. Certiorari, Prohibition, etc., are available to citizens to prevent excesses and abuse of power. Besides, there are certain equitable remedies such as declaration and injunction available against Government authorities for their misuse of powers.
5. Procedural guarantees- Under it we find the tendency to judicialise administrative acts, to make sure that the fundamentals of proper procedure-openness, fairness and impartiality are observed. The concept of procedural guarantee also includes the rules of natural justice.
6. Governmental liability- Tortious and contractual liability of Union and State Governments for the wrongs committed by their servants and agents.
7. Public Corporation- Liability and legal responsibility of public corporations.
Administrative law is the most growing and important subject because it is basically a judge-made law and the judges have been changing their position very often. This factor is responsible for making administrative law a subject of growing importance and interest. 21st century has become exceedingly complex and governmental functions have multiplied. There has been a vast change in the scope and character of government power in modern times. The role of the government in modern times may be placed in five categories, as protector, provider, entrepreneur, controller and arbiter. In view of this increase in the governmental power, considerable power has now-a-days been concentrated in the executive branch of the government. The direct result of this has been the growth of administrative law.
Arming the administration with such vital functions require some reasonable checks and control over their exercise, because in absence of a check, there is constant danger of its assuming the role of dictator or what Allen described as ‘Bureaucracy triumphant. The administrative law tries to prevent things going to such limit. Griffith, in his book ‘Principles of Administrative Law’, says, “Without the control on the administration essential balance between individual liberty and public good is impossible.”
In simple words, the reason behind the growing importance of administrative law is the assumption by the administrative authorities of very wide powers including legislative and judicial, which was the result of the growth of social welfare State. Since administrative law is primarily concerned with the control over the exercise of their powers, i.e., to prevent administrative authorities from abuse and misuse of powers, hence it has become a subject of growing interest.
Definition and Importance of Administrative Law
Q. 2. Define Administrative Law. Describe the importance of Administrative law in a welfare state.
Or
Is it correct to say that Administrative Law aims to controlling the functions of administration?
Ans. Definition and Importance of Administrative Law.- Administrative law is a branch of public law, which deals with the structure, powers and functions of the organs of administration; the limits of their powers and the methods, by which their powers are controlled, including the legal remedies available against them.
The emphasis should be on the exercise of powers as well as on its control. In simple words, Prof. Jennings defines administrative law as the “law relating to administration. It determines the organisation, powers and duties of administrative authorities”. In English and American administrative law, the organisation of administrative authorities is not treated as the subject of discussion, whereas in France, Italy and other continental countries the discussion on organisation of administrative authorities is regarded as one of the essentials of the subject of administrative law. H.L.A. Hart does not include the discussion on the organisation of administrative authorities in the definition of administrative law. He defines: “Broadly conceived, administrative law includes law, that is made as well as the law, that controls the administrative authorities of the Government”.
Various attempts have been made to define administrative law, its nature, scope and content but none is completely satisfactory in the sense that some definitions are too broad whereas some are too narrow.
Dicey- Dicey has defined administrative law as, “it is that portion of a nation’s legal system, which determines the legal status and liabilities of all State officials, and secondly, defines the rights and liabilities of private individuals in their dealings with public officials, and thirdly, specifies the procedure by which those rights and liabilities are enforced”. This definition is narrow and restrictive in so far as it does not take into consideration many aspects of administrative law, such as public corporations etc.
His definition is mainly concerned with one aspect of administrative law, namely, judicial control of public officials.
In England, he says, that the system of administrative law and the very principle on which it rests are, in truth, unknown. The view of Dicey is erroneous. Dicey’s definition does not take into consideration many administrative authorities, procedures of such authorities or their various powers and functions or other controls upon them, for example. Parliamentary control.
Prof. Wade has defined it as the law concerned with the operation and control of the powers of administrative authorities with emphasis on function rather than structure.
Ivor Jennings’ definition is broad and reflects a balanced approach when he says, “Administrative law is the law relating to the administration. It determines the organisation, powers and duties of administrative authorities”.
Wade and Phillips define administrative law as “a branch of public law which is concerned with the composition, powers, duties, rights and liabilities of the various organs of the Government which are engaged in administration”. Thus definition given by Wades and Phillips is similar to the definition of Ivor Jennings.
K.C. Davis defines administrative law as the law concerning the powers and procedures of administrative agencies, including especially the law governing judicial review of administrative action. An administrative agency is a governmental authority, other than a court and other than a legislative body, which affects the rights of private parties through either adjudication or rule-making. Thus Prof. Davis has pointed out the three large segments of administrative law which relate to transfer of power from legislative to administrative agencies, exercise of the powers by the agencies and review of administrative action by the court. According to Prof. Davis, it does not include the enormous mass of substantive law produced by the agencies, much of which is beyond the understanding of lawyers as such. It includes judicial review of the executive or a administrative action not involving either adjudication or rule making.
Prof. Wade- According to him since administrative law deals with the exercise of governmental powers, it is itself a part of the constitutional law. The essence of administrative law lies in judge-made doctrines which apply right across the board and which, therefore, set legal standard of conduct for public authorities generally.
Prof. Hart says “Broadly conceived, administrative law includes law that is made by judges as well as the law controls the administrative authorities of a government” government”. Both these definitions have ignored certain aspects of the subject which strictly fall within the scope of administrative law today. But, it is true that administrative law in modern times is primarily concerned with techniques of control over the exercise of the multifarious powers of administrative authorities rather than their structure.
Professor Schwartz defines administrative law in the following words:
“Administrative law is that branch of law which controls administrative operation of the Government.”
Broadly speaking, administrative law deals with composition and powers of different organs of administration, the limits of their powers; the procedure which the administrative authorities shall adopt in exercise of their powers and the various modes of their control including particularly judicial control over the different kinds of powers exercised by them. Precisely it deals with the quasi-legislative and quasi-judicial powers of the administrative authorities along with their executive powers and their control.
After considering these various definitions it can be concluded here that administrative law deals with the powers of administration particularly quasi-legislative and quasi-judicial powers and their control.
Now-a-days, in almost every country of the world, the great importance of the study of Administrative law is recognised. As far as India is concerned, it is of great importance, because the objective of the Constitution is to establish a socialist democratic society. According to Prof. J.J.R. Upadhyaya¹, “A developing country like India where the roots of democracy are not deep a strong bureaucracy may have the tendency to ride rough-shod over the rights of people. 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”. The study of Administrative law has become inevitable in view of the fact that it is a potent weapon to control governmental power through judicial process.
Q. 3 (a). What are the sources of Administrative Law.
Ans. Sources of Administrative Law: Origin of the material content of rule is known as source of law. Administrative Law is mainly concerned with powers. It is necessary to examine the sources of powers before considering in details how power is controlled. The customary divisions of the sources of legal power are common law and statute so it is with administrative authority. So far as the Central Government is concerned, its common law powers fall under the royal prerogative which, however, has no relevance to the activities either of Local Government authorities or modern statutory corporations, which include both ministerial departments, such as Housing and Local Government, Education. Since the latter are exclusively the creation of Parliament it follows that their powers are derived solely from the same source.
In the realm of administrative law, the conflict between the Parliament and the courts would arise whenever the former seeks to abridge any of the fundamental rights of the citizens which are justiciable.
Now the question arises as to what are sources of administrative law in India. The following are the chief sources of administrative law in India.
1. Constitution- The Constitution of India deals with formulation of the executive, the powers of the Executive during peace and emergency times.
Administrative law is concerned solely with the administrative acts of either the administrative or of quasi-judicial bodies. Now the methods by which such acts are interfered with are by the use of the prerogative or Common law writs, especially by the writs of Certiorari, Mandamus and prohibitions. These writs are called prerogative writs in England and are issued by the High Courts in that country and by the Supreme Court and High Courts in India under Articles 32 and 226 of the Constitution of India. Very nature of such a jurisdiction excludes the decision of the ordinary civil or criminal proceedings in the land, because those proceedings carry with them the safeguard provided by statute of appeal, revision and review. Hence, it is clear that these writs are not available against the judicial proceedings of the courts.
The concept of rule of law has provided unique dimension to the study of Administrative law. According to Justice Ramaswami of the Supreme Court, “the rule of law is necessary if fundamental democratic values are to be preserved and if the democratic structure of the State is to be maintained”. The rule of law is a basic structure of the Constitution [Smt. Indira Nehru Gandhi v. Raj Narain, A.I.R. 1975 SC 2299]. Every organ of the State under our Constitution is regulated and controlled by the rule of law [A.K. Kraipak v. Union of India, (1970) 1 S.C.R. 457]. Contractual and tortious liability of the Government for its public officials are laid down under Articles 299 and 300 of the Constitution respectively.
2. Statutes- Statute is the main source of administrative power. The term ‘statute’ covers both Acts of Parliament and delegated legislation. Acts of Parliament comprise public general Acts and private or local Acts. Delegated legislation, or as it is sometimes called, subordinate legislation includes statutory instruments which were formerly styled as statutory rules and orders.
A good deal of legislation is made by the administration under the powers conferred by the legislature. This type of administrative legislation is called delegated or subordinate legislation. The delegated legislation is subject to judicial and parliamentary control. Thus, delegated legislation is an important source of administrative law.
3. Judicial Pronouncements- The contribution of the courts has not been less laudable towards the growth of Indian Administrative Law. The judicial pronouncements exhibit considerable expansion of the right of hearing, judicial control of discretionary powers, judicial review over the administration in general and promotion of open Government.
4. Reports- Reports made by various bodies also constitute and important source of law. Important reports in this respect are Report of the Committee on Minister’s Powers, Frank Committee Report and the Reports of Administrative Reforms Commission.
Relation between Administrative Law and Constitutional Law
Q. 3 (b). Administrative Law is a part of constitutional law. It has become the independent branch of study only recently. Discuss.
Ans. Relation between Administrative Law and Constitutional Law. As regards, the relation between Administrative Law and Constitutional Law, there are two schools of thought.
(1) No difference. According to one school of thought, there is difference between administrative law and constitutional law. no
(2) Difference. According to the other school of thought, there is difference between administrative law and constitutional law.
Prof. Wade writes that with the exercise of Governmental power, administrative law is itself a part of constitutional law. It have now become independent branch of study. But, it was denied recognition in United Kingdom and United States of America. Prof. Dicey repudiated its existence in United Kingdom and his view continued to occupy the minds of thinking persons till the advent of the report of committee of ministers. He misunderstood “Droit Administrative”, which he identified with administrative law. According to him, since there was no dual system of judiciary in Great Britain. Like France there is nothing like term ‘administrative law’ in England. Similarly, the existence of administrative law was defined in the United States because of the acceptance of doctrine of separation of powers under their Constitution. The views of Austin, to whom constitutional law merely determined what persons or classes of persons bore the sovereign powers while administrative law determined the ends and modes to and in which sovereign powers were exercised, are not complete in full sense, because he dealt constitutional law in very narrow sense. While summarising the views of Holland in this regard, Maitland said, “I think we catch his idea if we say that while constitutional law deals with structure, administrative law deals with functions”.
Thus, according to the view of these writers, administrative law and constitutional law both deals with the same subject. As Griffith, J.A. writes, that the truth is, all these writers (with possible exception of Austin) would themselves pointed out, that any definition of constitutional or administrative law and any distinction drawn between them are arbitrary and based on the convenience of the particular writer. Consequently, administrative law has been dealt within the books of constitutional law till recently. It is true that we find much similarity in the subject-matter of two laws, but scope of administrative law has been increased in modern times, resulting in its separation from the constitutional law.
It was Goodnew who first took up administrative law as a separate subject. He wrote a book on Comparative Administrative Law in 1892. In India administrative law has not been grown up fully. It is in its infancy. Before 1947, our country was a police state. With the advent of independence a conscious effort started towards the achievement of a welfare state. The philosophy of welfare state has been expressly engrained in our Constitution. There are several principles which are derived from the constitutional law and they constitute the fundamental basis of administrative law. In fact, among the various sources of administrative law Constitution stands foremost besides the statutes, statutory instruments and precedent.
Our Constitution itself envisages a few administrative bodies mainly from the point of view of inter-State co-operation and co-ordination to solve inter-State problems. Examples are the inter-State Council, the Finance Commission, Union Public Service Commission and the Election Commission. Besides this, we have several provisions in the Constitution, which relate to control on the administrative powers.
As regards the relationship between the two branches of law there is no deviation from the modern tendency of thought that administrative law is an independent branch of the subject, although, the knowledge of Indian constitutional law is indispensable for understanding the correct position of administrative law in India.
The inevitable and speedier growth of powers of the administration under the garb of socialisation has resulted in outstanding legal development of the twentieth century taking its force from constitutional law.
Administrative law is very much related to constitutional law. It owes much to constitutional law, in spite of the fact that the former has developed as an independent branch of study. In many ways, constitutional law is the determining factor of administrative law.
Definition and Importance of Rule of Law
Q. 4. Define the Rule of Law. How has this doctrine been applied in India? Is Rule of Law repugnant to Administrative Law?
Or
What do you understand by ‘Rule of Law’? What is the importance of ‘Rule of law’ for a welfare State?
Or
“The Rule of law” postulates the persuasiveness to the spirit of law throughout the whole range of Government in the sense of excluding arbitrary official action in any sphere.” Do you agree with this statement? Examine.
Or
“The Rule of law permeates the entire fabric of Indian Constitution and indeed forms part of its basic feature.” Comment on this statement.
Or
Distinguish between rule of law and administrative law.
Ans. Meaning, Definition and Importance of Rule of Law in the context of India. According to Prof. Dicey, Rule of Law has three meanings:
Firstly, it means, in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power. It excludes the existence of arbitrariness or even of wide discretionary authority on the part of the Government.
Secondly, it means equality before the law or equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts. Everyone, whatever his position, right from State Minister to policeman, is governed by the ordinary law of the land and is personally liable for anything done by him contrary to that law, and is subject to the jurisdiction of the ordinary courts of justice, civil or criminal. On this point Dicey distinguished ‘Droit Administratiff from ‘Rule of Law’. He was very much critical of the system of French legal system of Droit Administratiff. On the basis of above analysis, he said that in England administrative law does not exist.
Thirdly, rule of law may be used as formula for expressing the fact that in England, the law of the Constitution, is not the source but the consequence of the rights of individuals, as defined and enforced by the courts.
Distinction between rule of law and administrative law (view of Dicey). According to Dicey, administrative law is based on the following ideas which are against the principle of Rule of law, viz:
(1) That the Government and its servants possess special rights, privileges and prerogatives as against private citizens. An individual in his dealings with the State, does not stand on the same footing as that on which he stands in dealings with his neighbour.
(2) That the Government and its officials are independent of and free from the jurisdiction of ordinary courts.
With the combination of these two basic assumptions the characteristics of administrative law may be traced as under:
The first of these characteristics implies that the relation of the Government and its officials towards private citizens must be regulated by a body of rules which are in reality laws, but which are very much different from the laws which govern the relation of one private person to another person.
The second characteristic of Administrative Law is that ordinary judicial Tribunals have no concern whatever with matters at issue between a private person and the State, ie., with questions of administrative law but that such questions must be determined by administrative courts.
Thirdly, the questions relating to jurisdiction of ordinary Judicial Courts and Administrative Courts are determinable only by administrative bodies.
The fourth characteristic of administrative law lies in its tendency to protect from supervision or control of the ordinary Court of law, any servant of the State who is guilty of an act, however, illegal, whilst acting in bona fide obedience to the orders of his superiors. Thus, according to Dicey under administrative law wide discretionary powers have been given to administrative authorities and they are not subjected to ordinary law of the land. Rule of law is antithesis of arbitrary powers. Subjection of Government to the law is the basic requirement of Rule of Law, therefore, Dicey was of the view that administrative law was not in operation in England, and administrative law was opposed to rule of law, with the common law and with the liberty of the subjects.
Dicey’s denunciation of administrative law was based on mistaken conclusion. It has been admitted that this picture was wrong and French administrative courts have striven to impose effective control on officials and to raise the standard of Administration. Administrative law in modern times is a potent weapon “to control executive power by law and channelize it by fair and proper procedure”. The Conceil d’Etat in France, and administrative court, in its judicial and controlling functions have achieved a high degree of objectivity. They concern themselves with the merits and with the legality of an administrative act.
In simple words, rule of law is not opposed to administrative law. Like rule of law administrative law checks and controls the discretionary powers of administrative authorities. Under administrative law, as it is conceived today, courts can restrain excesses of administrative authorities and courts. are independent of executive.
The Constitution of India enshrines the modern approach to the Rule of law and provides for an independent and impartial judicial system, which is free from all influences. The principle of Rule of Law permeates the entire field of administration. Every organ of the State-whether it be the legislature or the executive or the judiciary is regulated by this principle. In a large number of cases, for example, Indira Nehru Gandhi v. Raj Narain (AIR 1975 SC 2295), S.P. Gupta v. Union of India (AIR 1982 SC 149), P. Sambha Murthy v. State of A.P. (AIR 1987 SC 663), D.C. Waghwa v. State of Bihar (AIR 1987 SC 579), the Apex Court has observed that the rule of law pervades the Constitution as its basic feature. Even an amendment of the Constitution cannot take away Rule of Law.
Article 14 of the Constitution lays down that the State shall not deny to any person equality before the law or the equal protection of laws. The Indian Constitutional system is based upon the principle of the absence of arbitrary power, which is the basic requirement of Rule of Law.
Prof I.P. Massey says, “The modern concept of the Rule of Law is fairly wide and therefore, sets an ideal for any 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 individual is upheld. This dignity requires not only the recognition of certain civil or political rights but also creation of certain political, social, economic, educational and cultural conditions which are essential to the full development of his personality.
During the last few years the Supreme Court of India has developed some fine principles of Third World Jurisprudence, developing the same view.
Constitutionalism further extended the reach of the Rule of Law to the poor and the downtrodden, the ignorant and the illiterate, who constitute large bulk of humanity in India.” (Administrative Law, third edition p.32- 33).
Doctrine of Separation of Powers and its Importance in India
Q. 5. What do you understand by the Doctrine of ‘Separation of Powers’? Describe its importance in the context of Administrative Law.
Or
Are the executive, legislature and judiciary separate from each other in Indian legal system? To what extent is the overlapping of functions of these three branches of the Government permissible? Discuss.
Or
‘The Indian Constitution has not indeed recognized the Doctrine of Separation of Power in its absolute rigidity but the functions of different branches of the Government have been sufficiently differentiated.’ Discuss.
Or
‘The Doctrine of Separation of Power is not fully applicable in India’. Comment.
Or
Explain Montesquieu’s theory of Separation of Power and examine its application within Indian Constitution.
Ans. Theory of Separation of Power and its applicability in India. According to Montesquieu, the doctrine of Separation of Powers means that one person or body of persons should not exercise all the three types of powers-legislative, executive and judicial. Each of these powers should be vested in a distinct and separate organ. There cannot be any liberty, if all these powers or any two of them are vested in the same organ or same individual.
According to Wade and Phillips, separation of powers may mean the following three different things-
(1) The same set of persons should not form part of more than one of the three organs of Government,
(2) One organ of the Government should not control or interfere with the exercise of functions by another organ, and
(3) One organ of Government should not exercise the functions of another.
In India, there is no historical background of this doctrine. The doctrine in its absolute rigidity is not inferable from the provisions of the Constitution. However, Article 50 provides for the separation of the judiciary from the executive. As a general practice, the executive has been entrusted with the legislative and judicial powers.
We have adopted parliamentary form of Government based on the pattern of British system. The President exercises all executive powers but under Article 74 there is to be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions. But like the American President, the President of India is the Supreme Commander of the Armed Forces, Air force and the Navy; he can declare war himself, send armies abroad without consulting the Legislature. This has been contained in Article 53 of the Constitution but clause (2) of the said Article provides that the exercise of such powers shall be regulated by law. Furthermore, the Parliament can confer the power on any other authority.
All executive powers of the union are vested in the President under Article 53 of the Constitution. President of India is only nominal head of the State. Since India adopted a parliamentary system of Government, it was practically not possible to adhere to the doctrine of Separation of Powers as interpreted by Montesquieu.
The Constitution has recognised the need for the separation of the Judiciary from the Executive, as a Directive Principle of State Policy in Part IV. In certain States, this step has been taken on experimental basis. Besides, a series of checks and balances are patent in the Constitution and they can be summarised thus;
(i) The Indian Legislative bodies are not sovereign. Their rights of legislation are regulated by:
(ii) the various Lists (I, II and III) of the Constitution;
(iii) the provisions of Part III;
(iv) the possibility of judicial veto on legislation; and
(v) the requirement that the President and the Council of Ministers have to act in accordance with the Constitution, and the provision for impeachment of the President, if he fails to act in accordance with the provisions of the Constitution.
Furthermore, under Article 256 of the Constitution the executive powers in any State are to be exercised in such a way as to ensure compliance with the Constitution. So far as the Judiciary is concerned, the Constitution provides for the dismissal of a judge, on a motion in that behalf passed under Article 174. So it will be noticed that these are checks and balances on various agencies of the State, which operate under the various provisions of the Constitution. Therefore, it can be said that the Indian Constitution believes in checks and balances and not on any rigid separation of powers. In Ram Jawaya v. State of Punjab [AIR 1955 SC 549] Mukherji, J., has opined that the Indian Constitution has not indeed recognised the doctrine of Separation of Powers in its absolute rigidity. In the case of Ram Krishna Dalmia v. Justice Tendolker, [1959 SCR 229]. it was laid down by Das. J. “The Constitution does not express the existence of the separation of powers and the doctrine does not form an essential basis or foundation stone of the constitutional framework as it does in the USA”. In Chandra Mohan v. State of U.P. [A.I.R. 1966 SC 1897], it was held that though our Constitution does not accept the strict doctrine of separation of powers but provides for an independent judiciary in the States. The controversy was finally settled by the Supreme Court in the leading case of Keshwanand Bharti v. State of Punjab, [A.I.R. 1973 SC 146], which changed its outlook and held that both the separation of powers and the supremacy of the Constitution are the part of the basic structure of the Indian Constitution. The view taken by it in the Keshwanand Bharti case in this connection was confirmed by Supreme Court in the leading case of Smt. Indira Nehru Gandhi v. Raj Narain [A.I.R. 1975 SC 2299], in which it was said that the three separate organs of the Republic cannot take over the functions assigned to the other as it forms the basic structure of scheme of the Government of the Republic laid down in this Constitution.
In this case, Ray C.J. has observed that our Constitution recognizes division between three main powers of the Government. Judicial power in the sense of the judicial power of the State is vested in the judiciary. Similarly, powers are vested in the executive and the legislature in their respective spheres. However, it is not the intention that the powers of judiciary should be passed on to or be shared by the executive of the legislature or that the powers of the legislature or the executive shall pass on to or be shared by the judiciary.
Thus, the Constitution does not recognise the doctrine of separation of powers in its absolute form but the functions of the different branches of Government have been sufficiently differentiated. Therefore, we find that our Constitution does not postulate assumption by one organ of the State of functions that essentially belong to another. In Gurudevdutta v. K.S.S.S. Maryadit v. State of Maharashtra [A.I.R. 2001 SC 1980], the Apex Court expressed the view that doctrine of separation of powers has been the basic tenet of our Constitutional framework since in terms therewith each of the three organs of the State vix, the judiciary, the executive and the legislature would be operating on its own sphere.
Delegated legislation
Q. 6 (a). What is Delegated legislation? Explain the factors which are responsible for the growth of Delegated legislation.
Or
“Delegated legislation is indispensable in modern times.” Explain and state the reasons for its growth.
Or
Explain the meaning, nature and scope of the Delegated legislation.
Ans. Definition nature and scope of delegated legislation and factors responsible for its growth.- Delegated legislation is an expression which covers a multitude of confusion. It is an excuse for the legislators, a sheild for the administrators and a provocation to the constitutional jurists. (Mukherjee, J., quoted by Chakravarti, Administrative law, p. 166).
When an instrument of a legislative nature is made by an authority in exercise of power delegated or conferred by the legislature, it is called Delegated legislation. All law making taking place outside the legislature and generally expressed as rules, regulations, orders, by-laws, scheme, directions or notifications etc. is known as Delegated Legislation. When the legislature under the pressure of work delegates the legislative power in broad terms, it results in Delegated legislation. Delegated legislation generally signifies all such statutory rules and orders which are made by an agency other than the legislature. The administrative bodies, although have no legislative function of their own, still exercise certain legislative powers on behalf of and on authority given by the legislature in discharge of its legislative functions. They act as delegates and exercise a delegated authority. Hence, the outcome of discharge of their functions of near legislative character on express delegated authority is described as Delegated legislation. Parliament confers on the Executive the rule making powers and the State legislatures are not behind in delegation of legislative powers to the State Governments.
Scope of Delegated legislation- When we consider the scope of Delegated legislation under the Indian Constitution, a very important question arises whether there is any limit on the power of Parliament or State legislature to delegate its legislative power to the Executive.
There is one important point that the legislature cannot delegate its essential functions. Though our Constitution does not contain any express prohibition against delegation of powers by the Legislature to the Executive or any subordinate body, the Supreme Court has held in In re Delhi laws Act [AIR 1951 SC 332]; Basu Lal v. State of Bombay [AIR 1961 SC 4 and Ramesh Birch v. Union of India, AIR 1990 SC 560], that the Legislature under our Constitution, cannot delegate its essential legislative functions, which have been entrusted to it by the Constitution. In In re Delhi Laws Act case [AIR 1951 SC 332], the Supreme Court by its majority opinion held that Indian Parliament was free to delegate its legislative powers to the Executive to any extent subject to only limitation that it must not efface itself or abdicate its powers.
Factors responsible for the growth of Delegated Legislation- Many factors are responsible for the rapid growth of delegated legislation in modern democratic State. According to the Committee on Minister’s Powers the following factors are responsible for the rapid growth of delegated legislation:
1. Pressure of work on Parliament-Now-a-days multifarious activities are performed by the State for which a very wide range of legislation was to be covered as Parliament is too busy a body. The pressure of time makes the Parliament unable to work out the details of all the Acts. It can only lay down the general policies, or outlines of an Act. And since details of the Act cannot be prepared by it, it delegates the rule making power to the Executive
2. Technical character of the legislation. Many rules which have to be made to effectuate the policy of the Act are of technical character. which require the consultation of the experts. The legislators are not technicians or experts. Only the general principles of an Act can be provided by the Legislature and details have to be supplemented by administrative agencies by making rules or bye-laws etc. Moreover, certain matters are of purely local nature and only those persons having close contact with local problems and situations can best provide laws and rules.
3. Required flexibility and expediency. In order to meet unforeseen contingencies and to expedite adjustments delegated legislation is most effective.
4. Emergency. When an emergency arises on account of war. insurrections, floods, epidemics, economic depression and the like, executive can take immediate action for their prevention as Parliament is not always in session. In order to meet these unforeseen conditions it becomes inevitable that Executive should be powerfully armed with rule making and other powers otherwise the collapse of the Government is threatened
5. Unforeseen contingencies- In some cases, public interest demands that the contents of the provisions of law should be kept in secrecy, until the time fixed for that to come into operation. Therefore, in such cases the Executive must be amply empowered to make rules and regulations as it deems necessary because in absence of delegation of legislative powers, such contingencies cannot be meted out properly. Moreover, when an Act is passed by the Parliament, the Act may be required to come into operation at different dates at different times. It is possible only for the executive to apply it by passing orders or making regulations to the effect as when shall it be enforced or brought into operation.
6. Opportunity for experiment-The practice of delegated legislation also provides an opportunity, for experiment to the Executive By this device, the Executive makes rules, regulations and orders which are enforceable as the law passed by the Parliament.
In re Delhi Laws Act case (A.IR 1951 SC 332] the Apex Court has aptly summarised the causes of the growth of delegated legislation in the following words; that “The legislature has now to make so many laws that it has no time to devote to all the legislative details and sometimes the subject on which it has to legislate are of such technical nature that all it can do is to state broad principles and leave the details to be worked out by those who are more familiar with the subject…………..it is difficult to bring out a self contained and complete Act straightway, since it is not possible to foresee all the contingencies and envisage all the local requirements for which provision is to be made.”