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Faulty concept of administrative law

Faulty concept of administrative law

Administrative law is the law governing the Executive, to regulate its functioning and protect the common citizenry from any abuse of power exercised by the Executive or any of its instrumentalities. Administrative law is the body of law that governs the activities of administrative agencies of government. Government agency action can include rule making, adjudication, or the enforcement of a specific regulatory agenda. Administrative Law as a law is limited to concerning powers and procedures of administrative agencies. It is limited to the powers of adjudication or rule-making power of the authorities. It is a new branch of law which has evolved with time and shall continue to evolve as per the changing needs of the society. The aim of administrative law is not to take away the discretionary powers of the Executive but to bring them in consonance with the 'Rule of law'. According to Ivor Jennings, Administrative law is the law relating to the administration. It determines the organization, powers, and duties of the administrative authorities.

According to K.C Davis, Administrative law is the law concerning the powers and procedures of administrative agencies, including especially the law governing judicial review of administrative actions.


            •           Administrative law involves the administration and regulation of federal and state government agencies.

            •           Government agencies have purview over a wide variety of economic functions, such as telecommunications, the financial market, and social issues, such as instances of racial discrimination.

            •           Administrative law is an arm of public law and is also known as “regulatory law.”

In a nutshell, The main goal of administrative law is to protect the interests of the public with regard to the government. Administrative law is derived from the executive branch of government and includes some of the most notable administrative agencies such as the Department of Defense (the military) and the Department of Justice.


The goal of administrative law is to redress this inequality to ensure that, so far as possible, the individual and the state are placed on a plane of equality before the bar of justice. In reality there is no antithesis between a strong government and

Controlling the exercise administrative powers. Administrative powers are exercised by thousands of officials and affect millions of people Administrative efficiency cannot be the end-all of administrative powers. There is also the questions of protecting individual's rights against bad administration will lead to good administration.

Definition by Garner

According to Garner, administrative law may be described as "Those rules which are recognised by the court as law and which relates to and regulate the administration of government." Thus Administrative law can be said to be science of power of Administrative authorities, and the nature of their powers can be studied under the three heads:

            •             Legislative or Rule making,

            •             Purely Executive,

            •             Judicial or Adjudicative

Nature of Administrative Law

Administrative Law is a new branch of law that deals with the powers of the Administrative authorities, the manner in which powers are exercised and the remedies which are available to the aggrieved persons, when those powers are abused by administrative authorities.

The Administrative process has come to stay and it has to be accepted as a necessary evil in all progressive societies. Particularly in welfare state, where many schemes for the progress of the

Society are prepared and administered by the government. The execution and implementation of these programmers may adversely affect the rights of the citizens. The actual problem is to reconcile social welfare with rights of the individual subjects. 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.

Judicial decision

Judicial decisions or judge-made law have been responsible for laying down several new principles related to administrative actions. They increased the accountability of administrative actions and acted as an anchor between the notifications, circulars etc. to be linked and complied directly or indirectly with the constitutional or statutory provisions.

Role of Administrative Law

•Separation of Powers

Montesquieu's view Montesquieu said that if the Executive and the Legislature are the same person or body of persons, there would be a danger of the Legislature enacting oppressive laws which the executive will administer to attain its own ends, for laws to be enforced by the same body that enacts them result in arbitrary rule and makes the judge a legislator rather than an interpreter of law. If one person or body of persons could exercise both the executive and judicial powers in the same matter, there would be arbitrary powers, which would amount to complete tyranny, if the legislative power would be added to the power of that person. The value of the doctrine lies in the fact that it seeks to preserve human liberty by avoiding the concentration of powers in one person or body of persons. The different organs of government should thus be prevented from encroaching on the province of the other organ.

•Rule of Law

Dicey's concept of the Rule of law contemplated the absence of wide powers in the hands of government officials. According to him, wherever there is discretion there is room for arbitrariness. Further he attributed three meanings to Rule of Law.

1) The First meaning of the Rule of Law is that 'no man is punishable or can lawfully be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land.

2) The Second Meaning of the Rule of Law is that no man is above law.

Every man whatever be his rank or condition. is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.

3)The Third meaning of the rule of law is that the general principle of the constitution are the result of judicial decisions determining the rights of private persons in particular cases brought before the court.

•Droit Administrative

Three basic principles of Droit Administrative:

            1. The power of administration to act suo motu and impose directly on the subject the duty to obey its decision;

            2. The power of the administration to take decisions and to execute them suo motu may be exercised only within the ambit of law which protects individual liberties against administrative arbitrariness;

            3. The existence of a specialized administrative jurisdiction.

Faulty Concepts

1) Problems of Universalisation:

 (i) Faulty Policy of Government: Conversion of large number of existing primary schools into basic schools caused financial problems while implementation.

 (ii) Political Difficulties: So far, the Government of India has not been able to devote its full attention towards education due to problems of food, of inimical neighbours, the problem of Kashmir, the problem of linguistic states, etc.

 (iii) Faulty Administration of Education: In most of the states, the responsibility of universal primary education is on the Block authorities, Municipalities and Educational Districts. The progress of expansion of primary education gets slow because of the indifference and incapability of these institutions.

 (iv) Dearth of Money: Income of the local institutions responsible for primary education is so much limited that they are totally incapable of meeting the expenditure of compulsory education.

 (v) Establishment and School Buildings: The Third and Fourth All India Educational Surveys indicate that even now there are lakhs of villages and habitations without schools due to non-availability of funds.

 (vi) Natural Obstacles: The village and small habitations in areas of Himalayan regions, Kashmir, Garhwal, Almora with less population are situated distances apart. So, also the desert areas in Rajasthan, the dense forest areas in Madhya Pradesh, Orissa, Assam and many Southern States create problems for expected enrollment. These are very difficult areas due to lack of communication, transport, education and school organisation.

 (2) Lack of physical facilities: The most fundamental problem in facilities management is lack of policy guidelines for infrastructural development in schools. The children enrolled for free and compulsory education are deprived of basic necessities such as adequate classrooms, staff offices, laboratories and workshops, libraries, etc. This situation arises because the central, state and local Governments have failed to implement policy directives on minimum standards in relation to school facilities. Although, the Supreme Court had directed the centre and state governments to provide basic infrastructure, including drinking water and toilet facility in all the schools, still, there are many schools which lack in physical facilities.

 (3) Mid-day meal: Mid-day meal scheme was started to lure children to come to school and improve enrollment with the help of free food. Improper food preparation and unhygienic conditions have caused deaths of children and making many of them fall ill. Other issues range from delayed payments, cooks not receiving pay and food not being delivered or being wasted. There is even embezzlement of money by way of fake enrollments. It is also a difficult challenge to deliver food to rural areas. Roads are not paved and the infrastructure is lacking.

(4) Wastage and Stagnation: It is another major problem and a great obstacle in the way of universalisation of elementary education. This is due to the lack of educational atmosphere, undesirable environment, lack of devoted teachers, poor economic conditions of parents, absence of proper equipment, etc. This has led to a steep increase in the dropout rate of students.


In a country like India where people have no right to know, the judicial process grinds slow and the other grievance procedures are feeble and inefficient, perhaps the discretion to disobey may provide an effective check on the operation of the governmental machinery in reckless manner. It is gratifying to note that at a time when we are not only governed but administered, the Supreme Court has rightly taken the right foot forward in allowing discretion to disobey void orders. The decision of the Supreme Court in Nawab-Khan Abbaskhan v. State of Gujarat (AIR 1974 SC 1471).allows every person the discretion to make his own decision and disobey an order of the government, if in his opinion it is void. If he turns out to be wrong in his decision, of course, he is answerable, but if he is right he is not answerable in any way.

Error of Law Apparent on the Face of Record 

There are different types of errors that may occur in a in a judicial process or an administrative adjudication. These are errors of jurisdiction, error of law and error apparent on the face of record. There is a clear distinction between an error of law and a jurisdictional error. 

A jurisdictional error occurs when a complaint or grievance is wrongfully addressed by a court without the authority to do so. If the court or tribunal has gone wrong in law, this error can be addressed by issuing a writ of certiorari.


It may happen that a public servant may be negligent in the exercise of his duty. It may, however, be difficult to recover compensation from him.

From the point of view of the aggrieved person, compensation is more important than punishment. Therefore, like all other employers the State must be made vicariously liable for the wrongful acts of its servants

The Courts in India are now becoming conscious about increasing cases of excesses and negligence on the part of the administration resulting in the negation of the personal liberty. Hence they are coming forward with the pronouncements holding the Government liable for damages even in those cases where the plea of sovereign function could have negative the governmental liability. One such pronouncement came in the case of Rudal Shah v. State of Bihar. (AIR 1983 SC 1036) Here the petitioner was detained illegally in the prison for over fourteen years after his acquittal in a full dressed trail. The court awarded Rs. 30,000 as damages so the petitioner.

In Bhim Singh v. State of J&K (AIR 1986 SC 494) where the petitioner, a member of legislative Assembly was arrested while he was on his way to Srinagar to attend Legislative Assembly in gross violation of his constitutional rights under Articles 21 and 22 (2) of the Constitution, the court awarded monetary compensation of Rs.50,000 by way of exemplary costs to the petitioner.


Administrative law is the law governing the Executive, to regulate its functioning and protect the common citizenry from any abuse of power exercised by the Executive or any of its instrumentalities. It is a new branch of law which has evolved with time and shall continue to evolve as per the changing needs of the society. The aim of administrative law is not to take away the discretionary powers of the Executive but to bring them in consonance with the 'Rule of law'.

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