Administrative Law in India.
Administrative law in India regulates administrative actions by keeping control of delegated legislation and putting administrative discretionary actions through judicial review. It also provides for the constitution and making of tribunals along with their composition.
When the functions of Legislature is trusted upon organs separate from the legislature, by the legislature itself, the legislation created by such organ is called Delegated Legislation. When this power is delegated to the executives/administrators to resolve the practical issues which they face on daily basis. This practice of delegated legislation is not bad however the risk of abuse of power is common and hence safeguards are necessary to avoid risk.
There are three measures of controlling abuse of power through delegated legislation-
- Parliamentary Control
Parliamentary control is an ordinary constitutional function because the Executive is responsible to the Parliament. In the first stage of parliamentary control, it is made sure that the law provides the limits of delegated power. The second stage of such control provides for laying of the Bill before the Parliament.
There are three types of laying-
In this, the rules and regulations come into effect as soon as they are laid before the Parliament. It is done just to provide information to the Parliament, the consent of the Parliament with respect to its approval for the rules and regulations is not required.
The rules come into force as soon as they are placed before the Parliament but do not
have effect if not approved by the Parliament.
The rules made shall be of no effect unless approved by both the Houses of the Parliament.
2. Procedural Control.
Procedural control means the procedures defined in the Parent Act have to be followed by the administrative authority while making the rules. It involves pre-posting of the rules for the people who would be affected by the proposed rules so that they know it beforehand and can make representations if they are not satisfied.
After pre-publication is done and once all the people supposed are satisfied, the rules are to be published in the official gazette so that the public is aware of the existence of the rules.
3. Judicial Control.
The judiciary looks into the following aspects to determine the legal validity of the rules made using the power so delegated-
1. If the administrative legislation is in line with the Constitution.
2. If the administrative legislation is in line with the Parent Act.
3. If the administrative legislation is made arbitrary, unreasonable, and discriminatory.
4. If the administrative legislation is malafide.
5. If the administrative legislation encroaches upon the rights of the common public derived from the common law, in the absence of express authority in the Parent Act.
6. If the administrative legislation has a conflict with another statute.
7. Power of the legislating authority to legislate the rule.
8. If the administrative legislation is vague.
Judicial review deals with three aspects-
· Judicial review of legislative action.
· Judicial review of the judicial action.
· Judicial review of administrative action.
When it comes to administrative law judicial review of administrative action becomes essential.
An administrative authority must have discretionary powers to resolve real-time issues. However, the means of exercising these discretionary powers should be reasonable. Reasonableness is the ‘Rule of Law’s response to the challenge of discretion. Through the process of judicial review- administrative action and discretion are checked and controlled.
The judicial review ensures the legal aspect of the administrative decisions and keeps the administrative authority within limits. The Court can inquire if the administrative authority acted according to the law. However, the Courts cannot and will not substitute the opinion of the administrative authority with their own.
Courts, in a matter challenging administrative actions, hence look, if there was a failure in the exercise of the power of discretion if there was an abuse of discretionary power.
Administrative adjudication – Tribunals.
Tribunals are made for quick and cheap adjudication of disputes and settlement of complaints. The bench comprises of both judicial and non-judicial members. Tribunals are not a substitute for Courts. In India, there are a number of tribunals which are constituted under the Central Acts. Some of the Tribunals are listed below.
1. Administrative Tribunal- constituted under the Administrative Tribunal Act, 1985.
2. Industrial Tribunal- constituted under the Industrial Dispute Act, 1947.
3. Railway Rates Tribunal- constituted under the Railway Act, 1989.
4. Claim Tribunal- constituted under the Motor Vehicle Act, 1939.
5. Income Tax Appellate Tribunal- constituted under Income Tax Act, 1961.
6. National Green Tribunal- constituted under National Green Tribunal Act, 2010.
7. Competition Appellate Tribunal- constituted under the Competition Act, 2002.
In L. Chandra Kumar v Union of India, the Supreme Court held that tribunals are the court of the first instance in respect of the areas of law for which they were constituted. All the decisions of the Tribunals are, however, subject to scrutiny before the Division Bench of the High Court within whose jurisdiction the concerned tribunal would fall, through an appeal.
Lokpal and Lokayuktas Act, 2013.
The Lokpal and Lokayuktas Act, 2013 is an anti-corruption Act that provides for the establishment of the institution of Lokpal which inquires into allegations against public functioning departments and matters relating to them. The Act provides for an investigation into complaints of misadministration. The office of the Lokpal is equivalent to that of an Ombudsman.
The Act was a result of the massive public protest against corruption by Anna Hazare.
The Lokpal is an officer of the Parliament whose primary function is to provide the duty of acting as an agent for the Parliament for the purpose of safeguarding citizens against the abuse or misuse of administrative power by the executive.
Right to Information Act, 2005.
The Act provides for the right to information for citizens to gain information under the control of public authorities. The Act promotes transparency and accountability of all the public authorities. The Act is essential as it keeps the public informed and holds the Government and its agencies responsible to the governed.
Rule of law and administrative law.
The concept of ‘rule of law’ is that the State should be governed by the meaning of law and not by men. Administrative laws ensures that ‘rule of law’ prevails despite the presence of discretionary powers vested in the administrators. Administrative law is developed to restrict the arbitrary exercise of powers by subordinating it to well-defined law.
Separation of Powers and its relevance.
‘Separation of power’ is the basics on which the State machinery works. However, with the increase in administrative powers, it is seen that the doctrine cannot be used with rigidity. All the organs of the State are interdependent for smooth functioning, thus, the doctrine of separation of power cannot be exercised by placing the organs of the State in airtight compartments. There has to be a flexible and easy approach while ensuring that no organ encroaches upon the functions of another.
The relationship between Constitutional law and Administrative law.
As each and every law of the State must satisfy the Constitutional requirements, it is essential to know the relationship between the Constitutional law and the Administrative law of the State. Constitutional law is the genus and administrative law its species, hence the judge-made law must comply with the constitutional provisions.
Judicial Functions of Administration.
Need for devolution of adjudicatory authority on Administration.
The judiciary of the State could not put in place a mechanism for speedy adjudication, moreover, there was a backlog of cases. Adjudicatory authority was hence devolved upon the administration to resolve the issue. However, it is not an absolute substitute for the judiciary.
Problems of administrative decision-making.
Though the administration has been given adjudicatory authority to a certain limit, there are some issues in the administrative adjudication. For instance, the procedure of a proceeding before an administrative adjudicatory authority is not defined, there is an unsystematic approach of appeal, the decisions of the authority are not recorded and vesting of overlapping functions in the same authority is the problem in administrative adjudication.
Nature of Administrative Tribunals.
Thereafter, the nature of administrative tribunals is assessed. The Constitution, powers, areas pertaining to which a Tribunal shall adjudicate is defined.
In view of the dynamic expansion of industry, trade, and commerce, ordinary courts are not in a position to cope up with the extensive workload. Judges brought up in the traditions of typical law and jurisprudence, are not capable enough to understand technical problems, which build up in the wake of modern and complex economic and social processes. Many situations are such that they require speedy and firm action. Otherwise, the interests of the people may be jeopardized. The development of administrative law in a welfare state has made administrative tribunals an important prospect. Hence, a number of administrative tribunals have been established in the country, which can do the work more rapidly, more cheaply, and more efficiently than the ordinary courts.
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