Wednesday, August 8, 2012

Administrative Law: Meaning, scope and significance; Dicey on Administrative law; Delegated legislation; Administrative Tribunals.


It's heartening to know that this blog is now being recommended on Civil services preparation groups and pages of leading Social Networking sites and the responses coming in are great which just goes on to reinforce the fact that Public Administration is and always will be a force to reckon with not only on the professional front but also as an academic discipline(subject of study and research) as well as competitive exams with so many people choosing it year on year.

So today's post begins with a very important aspect of Public Administration which is - Administrative law and related dimensions. Let's proceed with the details.

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ADMINISTRATIVE LAW - MEANING:
Administrative law is the body of law that governs the activities of administrative agencies of the government which comprise of rule making or legislation(when delegated to them by the Legislature as and when the need be),adjudication(to pronounce decisions while giving judgements on certain matters),implementation/enforcement of public policy.


SCOPE:
Administrative law determines the organization, powers and duties of administrative authorities. The emphasis of Administrative Law is on procedures for formal adjudication based on the principles of Natural Justice and for rule making.

The concept of Administrative Law is founded on the following principles:
a) Power is conferred on the administration by law
b) No power is absolute or uncontrolled howsoever broad the nature of the same might be.
c) There should be reasonable restrictions on exercise of such powers depending on the situation.

Though administrative law is as old as administration itself since they cannot exist separately,in India the early signs/existence of administrative law could be found in the treatises written during the reign of the Mauryas,Guptas,Mughals as well as East India Company(modern administrative law).

It is based on the concept of rule of law that supports Natural Justice (to adjudicate based on impartiality,unjustness and the prescribed laws and legal methods instead of arbitrariness and abuse of official power on the part of govt. while serving the people and deciding cases brought before its Tribunals,etc. Natural justice is basically applied in cases where there are no laws prescribed,here the individual has to be given an opportunity to be heard and the judgement is to be taken into consideration the particular facts and cases of the case and the judgement should be free from bias). It is to prevent violation of people's rights by officials in power.

Administrative law specifies the rights and liabilities of private individuals in their dealings with public officials and also specifies the procedures  by which those rights and liabilities can be enforced by those private individuals. It provides accountability and responsibility in the administrative functioning. Also there are specified laws and rules and regulations that guide and direct the internal administration relations like hierarchy,division of labour,etc.



SIGNIFICANCE:
It is very significant because if it did not exist then the very concept of having a democracy and a government to work for the people would be self defeating because then there would be no responsibility or accountability of the public officials to anybody and the administration would run arbitrarily thus creating a huge monster that would eat up the very system. There would be an upset in the balance in areas such as police law, international trade, manufacturing, environmental, taxation, broadcasting, immigration, and transportation,etc.



REASONS FOR GROWTH:
1) Rise in complexity warranted handling of variable by the state authorities in order to provide functioning in that area with necessary certainty and prescriptions.
2) Industrial revolution that resulted in the coming up of cities and new types of economic transactions necessitated handling of affairs by govt in order to facilitate production,supply and exchange of products and services.
3) Technological inventions and the increasing specialization has called for the increased need of specialised handling of affairs by govt officials.
4) To allow necessary flexibility in the administrative system so that the challenges arising due to social and economic factors could be addressed more adequately and efficiently.
5) To allow experimentation in order to ensure the application of best fit model in a given circumstance
6) To allow participation of people in the administrative functioning to provide the necessary authority to the administrative officials so that they can address the challenges arising due to extraordinary circumstances or emergency situations.


DICEY ON ADMINISTRATIVE LAW:
Dicey supported Rule Of Law where everybody in a State everybody shall be subjected to some common law and no official irrespective of his status and authority shall be kept outside the purview of Rule Of Law. Thus,he rejected the idea of Administrative Law that was akin to Droit Administratif or that which was being practised in France and other European countries where there are seperate rules for administrative officials as he believed that such an arrangement would lead to a perpetual risk of excessive application of authority with people having no window to their grievance redressal.

The reason for this is that while analysing the concept of Administrative Law Dicey was always thinking of French administrative law/rights system/Le Droit Admanistratif that existed under Napoleon's Bonaparte's rule.

Droit Adminstratif practised the system of:
a) One rule for regulating the behaviour of individuals of society and one rule for regulating the members of State and administration.
b) One court for members and individuals of the society and their private aspects and another court for members of State and administration which is the administrative Court/Tribunals and the apex of this court will be the Council D'Etat(very small division of the country in to administrative divisions that are smaller than even counties). These are distinct and not overlapping neither are superior or inferior to each other. They are equals. In case they ever overlap then the final decision will be taken by a special court constituted for this purpose.
This was done so that administrative and State officials have more autonomy in dealing with situations and contingencies that arise in execution of administrative duties and which would not be easily understood by the normal law and courts.

Thus,Dicey believed that there should not be such a separation where there is one law that governs the administrative and political officials( Administrative Law) and one that governs society and its people(civil and criminal law) and advocated the rule of law as prevalent in UK where everybody was equal in the eyes of law and only one common law governed each and every individual. But,he was heavily criticised for this later as he did not take into account that even the Crown in UK was immune from civil and criminal proceedings,thus,there was no rule of law or equality here. Also he is criticised for not taking into account the future issues that would arrive in administration due to modernisation and complexity like delegated legislation,etc. Delegated legislation was very much a part of UK administrative setup as well as the system of administrative adjudication through tribunals that was contrary to Dicey's rule of law stating only one law making body which is the legislature and it being applied everywhere universally and interpreted by the judicial courts as and when required for each and every one. So,therefore UK was practising administrative law already.
Marx also criticised Dicey's rule of law concept by saying that it promotes inequality instead of equality because if you treat underprivileged and poor equally with rich then there is going to be a huge disparity that will only expand with time.
Modern day concept of rule of law has been given a very broad meaning by providing opportunities to unequal people in order to equal themselves with the others like reservation,etc. Law is created by the legislature or other legal institutions and is not to differentiate but enable unequals to become equals and the last word on the law would be that of the Independent judiciary.




ADMINISTRATIVE LAW AND RULE OF LAW ARE COMPLEMENTARY:
a) The modern concept of rule of law will be frustrated if not supported by a sound administration,and only a separate administrative law can provide that sound administration.
b) Administration cannot function in a vaccum,it needs a sound administrative law for itself to work properly. And all this together only will lead to the rule of law.
c) Thus rule of law and administrative law are both complementary and are inter dependant to make each other work.


DELEGATED LEGISLATION:
When a part of legislation(law making) is formally executed(performed/done) by the executive machinery instead of the legislature because the legislature has formally passed it on to them, it is called delegated legislation. The legislature provides the broader framework of the law with necessary objectives and directions and the technical details are left to the executive to fill in. It is also referred to as subordinate legislation. The executive are strictly subordinate to the parent act/law and the executive only fills in how to go about achieving the objective,thus he/she does not have original powers of rule making/legislation but just enclosed and subordinate power. Any technical/detailed rule writing done by the executive under delegated legislation would be declared ultra vires/null and void. Delegated legislation as a practise is also a result of  the growing complexities and technicalities which are seen in modern day rule making and policy implementation which the political executive is not aware of at the grass root level and so executives are called in to fill in the gaps due to their practical experience in the field. Also it provides relative autonomy to the executive while performing his duties as there are many unplanned situations that come up and the executive will not waste time to coordinate with the legislature/ministry and immediately frame the rules/law needed and resolve the situation.
And last but not the least it provides time to the legislature to devote and manage their time in dealing with other important issues as well as minute rule writing will take up a lot of time.




TYPES OF DELEGATED LEGISLATION:
1) Normal delegated legislation: They do not deal with matters of policy,taxation and repealing,modifying constitutional and statutory laws.
a) Positive/Normal positive  delegated legislation: This involves legislature enabling or legitimising administration to make laws and in that gives the rules and regulations how the administration is to go about it. Thus it is properly defined.
b) Negative/normal negative delegated legislation: Also certain areas are notified where administration where administration is restricted from making laws.

This can become reversed in order because in the normal positive delegation there are areas specified that the administration can make laws and that means indirectly that the other areas it cannot make so it becomes restricted whereas in the negative delegated legislation there are specified areas that the administration cannot do law making and that means indirectly all the other areas it is free to make laws.

2) Special Delegated Legislation/Henry viii clause: Here there are no areas or restrictions on the administration on legislation. This is also called Exceptional Delegated Legislation.




RISKS OF DELEGATED LEGISLATION:
1) It may lead to the legislature having diminished control over executives and significance.
2) In the name of technical law making by executive sometimes even basic or those which can be made by the legislature are passed on.
3) The executive is unconnected with the people and thus they would not take into account a lot of substantive interests of people and focus more on organised interests and technicality of implementation.




SAFEGUARDS FOR DELEGATED LEGISLATION:

1) PARLIAMENTARY SAFEGUARDS: The rules of lower house and the upper house of parliament has provided for a system of committee to carry out detailed scrutiny of all the rules framed by the executives through delegated legislation. This committee is known as the Committee of Subordinate Legislation that exists in both the Houses of Parliament. This was established in 1950 in the Lok Sabha and in Rajya Sabha it was estabilished in 1964.  It scrutinises and analyses the laws and rules formed by the executive and any discrepancies/irregularities and inconsistencies as well where financial powers have been usurped by the executive as well as the good work done by the executive. The committee then submits its report to the speaker of the Lok Sabha or the Chairman of the Rajya Sabha as well as a copy of it is tabled in the other house for its perusal.



2) JUDICIAL SAFEGUARDS: Independent judiciary has the power to declare any law including delegated legislation intra vires(relevant or in consistence with the law) or ultra vires( against the law or irrelevant and are struck down) depending on the amount of legislation delegated is in line with it or out of line of the enabling Act.
If the executive law is out of order with the enabling act or the Constitution then they are declared ultra vires.
This is known as judicial review. It states that there are some basic and fundamental powers of the legislature that can never be delegated and if that is done then it will lead to chaos and so the executive is only given the task to make laws for technical purposes under the guidance and directions of the parent or original law established by the legislature.



3) SPECIAL SAFEGUARDS: Legislature in Parliamentary system has exclusively in context of Delegated Legislation has brought about the concept of 'LAYING" (i.e. to be laid before the house)
There are five types of LAYING:
a) Laying subject to no further action - The moment law is laid before house it comes into force and house has no role to play. It is just informative.
b) Laying subject to negative action- The law when laid before house it comes to force unless house rejects it.
c) Laying subject to affirmative action- The law when laid before house it comes into force only when house approves it.
d) Laying in draft subject to negative action- The law when laid before house it remains in force unless it is rejected within 40 days.
e) laying in draft subject to affirmative action- The law when laid before house it does not come into force unless it is approved within 40 days.
This procedure is followed when the enabling or parent act is being considered to come into force and then passed on to the executive to fill in the minute and technical details.

Through these procedures the drafting is made clear and to the point explanation is there thus leaving no room for any doubt in the minds of the receiver. Through these discussions the negative aspects are removed and only then it comes into force. Once the law is finalised it should be notified in the local gazette so that the public is informed.




ADMINISTRATIVE ADJUDICATION(to act as judge in an issue and take a formal decision binding on both parties) / ADMINISTRATIVE TRIBUNALS:
Administrative adjudication is an important component of administrative law along with delegated legislation. It came into response to modern day changes. It is a settlement of disputes related to administrative functioning by an administrative tribunal( an executive body that may act as quasi Judicial body). Issues or disputes arising during administrative functioning is done by this mechanism where the administrative machinery acts as an adjudicator instead of going to the courts of law directly so these disputes are settled speedily as the adjudicators are administrative officials and know the specific details and understand the administrative process and thus give relevant and unbiased decisions. This helps in non-stagnation of policy work and thus benefits the people at large. It is flexible in its decisions as it looks at the broader angle of public policy and its benefit whereas a court of law only looks at rigid laws and nothing else.
But at times it can also be biased and deny independent justice to the aggrieved. According to many theorists it is organised lawlessness and is contravening to the principle of natural justice as the panel of adjudicators here are administrators and not independent judges, who definitely happen to be one of the parties involved in the dispute. But,due to its benefits mentioned above it still continues until a better alternative is found.




TYPES OF ADMINISTRATIVE COURTS/TRIBUNALS:
There are many:
1) Administrative tribunal for service rules
2) In cases involving matters of finance,the statutory acts empower offices to act as tribunal - Revenue Board of State,District Magistrate relating to rent control and revenue cases.
3) Election commission acts as the tribunal in violation of election rules.
4) Land acquisition act empowers the district magistrate to acquire land and he acts as tribunal in case of grievance regarding land acquisition.
5) In transportation a number of officials act as tribunals from the transport dept.
6) The regulatory commissions and agencies have power to hear cases and act as tribunals.



THREE TYPES OF TRIBUNALS SETUP UNDER ADMINISTRATIVE TRIBUNAL ACT 1985:
1) CENTRAL ADMINISTRATIVE TRIBUNAL (CAT) : The Central Administrative Tribunal has been established for adjudication of disputes with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or other local authorities within the territory of India or under the control of Government of India and for matters connected therewith or incidental thereto. This was done in pursuance of the amendment of Constitution of India by Articles 323A.  Includes service matters involving central services,state matters and civilian matters(excluding military) and civil matters.


2) STATE ADMINISTRATIVE TRIBUNAL (SAT): Administrative tribunal for state civil services matters


3) JOINT ADMINISTRATIVE TRIBUNAL: Administrative tribunal setup for two or more states.

All these tribunals are setup and appointments are made by the president.

The chairman is appointed by the president on advice of the Chief Justice of India and has to be a judge of a High Court or should have acted as a two years vice-chairman of the central administrative tribunal.
The vice chairman of the CAT should be a secretary of govt of India or any other post with equivalent pay for two years or otherwise additional secretary or post with equivalent pay for a period of not less than 5 years.
For members of the CAT the person should be additional secretary of govt of India or equivalent pay for 2 years or joint secretary or with an equivalent pay post for a period not less than 5 years.
The members can only be removed on grounds of proven misbehaviour by the president.
For the chairman and vice chairman are given secure tenure of 5 years or retirement on 65 years whichever is earlier.
For administrative members 5 years or retirement upon 65 years whichever is earlier.
For the judicial member of the CAT he should be 1st class magistrate.

An aggrieved person can approach high court appealing against the decision of CAT.




RISKS IN ADMINISTRATIVE TRIBUNAL SETUP:
1) They lack in legal expertise.
2) It is a kind of Martial Law where law makers here implement it also and the legal procedures are ignored which is violative of the principle of Natural Justice. Here the administration is both the litigant and judge in its own case as mostly the cases are against or relating to the very administrators who are sitting as judges there.
3) Lack of autonomy for lower tribunal officers.
4) Huge delay happens in this system too.




SAFEGUARDS AGAINST NEGATIVES OF ADMINISTRATIVE TRIBUNALS:
1) More legal expertise and officers should be brought in.
2) Principle of natural justice should be followed and the judge who is party to the dispute should be excluded from the hearing of the case.
3) More autonomy should be given.
4) Members of civil society should also be included.
5) People with high integrity should only be appointed.
6) Political interference should be minimized in the appointment procedure of tribunals and transparent procedures and rules should be established and followed.
7) Rule of tested evidence should be followed.
8) Decision making should be based on merit of the cases brought forward.
9) The parties to the dispute shall be given to present their cases and no judgement shall be delivered without giving full chance to defend one's cause.
10) Appeals in courts of law should be permissible.


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Click on ' JOIN THIS SITE ' to get instant updates on new posts on this blog. And also for 'INTERACTIONS AND DISCUSSIONS' regarding this blog's posts 'JOIN ITS FACEBOOK COMMUNITY/GROUP' that is mentioned on the right hand side of this page.
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The next segment of this blog will be covering:

Comparative Public Administration:
Historical and sociological factors affecting
administrative systems; Administration
and politics in different countries; Current
status of Comparative Public Administration;
Ecology and administration; Riggsian
models and their critique.


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Tags - Administrative Law: Meaning, scope and significance; Dicey on Administrative law; Delegated legislation; Administrative Tribunals

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