Ever since the advent of time and the modification to the definition and
purpose of the term state, the role of the administration viz-a-viz the
government has increased to a large extent. The focus has shifted from state
being the guardian to state being the provider and the concept of a welfare
state has taken shape. In such circumstances, it is extremely essential to
properly define what the administration stands for as well as to understand the
boundaries within which it has to exercise its duty. To understand these
boundaries, we need to take a look at the definition of administrative law.
In simple words, administrative law tends to check the legality of the
government's actions. Its role is to define, what the government can and what it
cannot. It is not a statute-based law and hence has several lacunae's. It is
here, that the creativity of the judges comes to play and administrative law is
given an interpretation as per the convenience of the judiciary. Hence,
administrative law has also been called as judge-made
Ubi jus ibi remedium is a legal maxim which says that where there is a right,
there is a remedy. Administrative law as a whole is based on this maxim where
its aim is limited to bring the process of administration within the established
boundaries of rule of law.
Administrative law has been defined as that legal framework within which public
administration ought to be carried out.[ii] It tends to create a boundary within
which the government is supposed to work. What one must realise is that the
government as such is an abstract concept which is intangible. It is the people
working in the government that do all the work. Hence, for their convenience it
is of the utmost importance that the term is defined.
The traditional approach has often maintained administrative law to be something
which concerns the powers conferred and the methodology used by administrative
agencies. It also talks about the applicability of judicial review to
administrative processes. This traditional approach has been upheld by jurists
such as K.C. Davies and Ivor Jennings.
Professor A.V Dicey[iii] while defining administrative law, focuses on the legal
rights and liabilities of government officials as well as the common people
interacting with such officials and how they are to be exercised. Professor
Upendra Baxi, an eminent legal luminary has referred to administrative law as
the weapon in the arsenal of the middle class to fight the all-powerful
Nature of Administrative Law
The presence of administrative law can be traced back to time immemorial. The
reason for this is that from whenever humans started to form a group and live
together, administration started and this administration was done by following
certain rules. In modern times, this itself is called a law
The need of the hour is to have a fine balance between the overall social
betterment of the community through the state led administration and an
individual's personal rights. The very objective of administrative law is to
ensure that the discretionary powers of the government are not converted into
Scope of Administrative Law
It aims to study the nature, structure and procedures being adopted by the
administrative organs of the government. It also seeks to lay the remedies
available to a person whose rights have been breached by arbitrary use of
administrative power. It includes things like Delegated legislation, functions
of judicial tribunals, common law guarantees such as rule of law and natural
justice etc. Control on these powers also falls within the ambit of the scope of
Necessary restraints: Control on administrative power
Administrative law, as discussed earlier, is not a statute-based law. It doesn't
have its origins written somewhere from which its limits can be established.
However, a read of the definitions given by eminent jurists as well as a look
into the nature and scope of the law, reveal that the idea was always to define
a limit which the administration cannot transgress. The very existence of legal
remedy in the form of the judicial review shows us that the administering body
is expected to not transgress certain prescribed limits.
Let us understand it this way. Administrative law is no separate branch of law.
It ebbs and flows from the Constitution. For a long time, constitutional law and
administrative law was considered one and the same. As a matter of fact, the
constitution prescribes very specific limits for the government to act within.
Overstepping these established lines would lead to the act being ultra vires the
constitution itself and will be struck down by the court of law.
It is agreed that administration of such a large country is no easy task. Hence,
for the same, principles such as that of delegated legislation has been
formulated where certain bodies can legislate. However, this again has to be
within prescribed boundaries. If no such boundaries are established by virtue of
either the constitution or a statute, then the all-powerful executive would be
in a position to exploit this power.
The Supreme Court of India through a plethora of judgements on delegated
legislation has indoctrinated a few principles thereby limiting the power of
delegation legislation. It came up with the principle of essential function
where the legislature cannot delegate an essential function because that would
amount to excessive delegation [iv]
For example, if an administrative decision is taken which is in gross violation
of Part III of the constitution, then the courts will act as a safeguard and by
striking down such an act, remind the executive of the constitutional limit of
administrative law. The constitution/statute has to expressly authorise an act.
Only then can the authorities use their power to perform such an act.
Transgressing that power is not within the scope of administrative law.
The concept of rule of law is also important in this context. By and large, the
Keshvananda [v] Bharti judgement had said that rule of law (which is nothing but
a facet of the constitution) is a part of the basic structure doctrine,
something which cannot be amended by the constitution. In furtherance of this
concept, Justice Khanna, and Justice Chandrachud[vi] struck down an amendment to
the constitution on the ground that it violated the rule of law in the infamous
case of the ousted Prime Minister Mrs Indira Gandhi.
Moreover, in the much talked about Habeas Corpus Case[vii], arguments were put
forth that Part III to the constitution cannot be suspended even in times of
Emergency because of it being in violation of the rule of law which in turn is a
core facet to our written constitution.
Hence, in a nutshell, one can conclude that administrative law does not confer
unlimited power on the authorities exercising it. They are duty bound to act
within the limits of the constitution and the statutes which flow from the
provisions of the constitution otherwise which the common man will be left at
the perils of the almighty state with little to no power to object to arbitrary
and irrational actions.
In contemporary times, as the state has transpired to become a welfare state,
the need to keep a check on the administrative actions has also increased
because in the garb of "social welfare", transgressing
constitutionally/legislatively set boundaries is becoming an all to common
phenomenon. It is here that the supreme law of the land and concepts such as
that of rule of law come to the rescue.
Written By: Mr. Saikat Mukherjee
- https://blog.ipleaders.in/administrative-law-1/ (Accessed on 09-07-2021 at
- Simey, T. S. The Economic Journal 58, no. 230 (1948): 264-66. Accessed July
9, 2021. doi:10.2307/2225949.
- Walters, Mark D. "Dicey's Administrative Law Blind Spot." Chapter. In A.V.
Dicey and the Common Law Constitutional Tradition: A Legal Turn of Mind,
299–329. Cambridge Studies in Constitutional Law. Cambridge: Cambridge
University Press, 2020. doi:10.1017/9781139236249.013.
- Re Delhi Laws Act, 1951 SC
- Keshvananda Bharti vs State of Kerala, AIR 1973 SC 1461.
- Indira Nehru Gandhi vs Raj Narain, Appeal (civil) 887 of 1975.
- Adm Jabalpur Vs Shivkant Shukla, 1976 AIR 1207.
, A 3rd year BA LLB student at Symbiosis
Law School, Nagpur.
Email : [email protected]