Sources of Administrative Law

So the Constitution is both the source of the power and the source of the control. That symmetry is the difference between Indian administrative law and English administrative law, and it is worth saying in an answer.

2. Statutes

Almost every administrative power in daily use is conferred by an ordinary Act of the legislature. The Act says who may exercise the power, on what conditions, for what purpose and subject to what appeal.

The statutes that matter for this syllabus are the ones the University names, and each has its own chapter: the Administrative Tribunals Act 1985, the Tribunals Reforms Act 2021, the Commissions of Inquiry Act 1952, the Central Vigilance Commission Act 2003, the Lokpal and Lokayuktas Act 2013, the Maharashtra Lokayukta and Upa-Lokayuktas Act 1971, the Prevention of Corruption Act 1988 and the Right to Information Act 2005.

Two cautions about statutes as a source, both of which are examinable.

A statute is a source of administrative law only so far as it is valid. If it violates a fundamental right it is void under Article 13. If it delegates an essential legislative function it is bad for excessive delegation: [Excessive Delegation: Permissible and Impermissible Delegation].

And a statute may be on the statute book without being in force. An Act comes into force on the date it says, or on a date the Government appoints by notification. Assent is not commencement. The Whistleblowers' Protection Act, which received the President's assent on 9 May 2014, has never been brought into force, because no notification under its section 1(3) has ever been issued: see [Whistleblowers' Protection: the Act of 2014 and the PIDPI Resolution]. A student who cites it as live law is citing something that has never operated for a single day.

3. Delegated legislation

The rules, regulations, bye laws, orders, notifications and schemes made by the executive under the authority of a statute are law, and there is far more of it than there is primary legislation. It binds citizens and courts exactly as an Act does, so long as it is within the power conferred.

It is both a source of administrative law and one of its main subjects: the whole of [Delegated Legislation and Why It Grew] and the three control chapters that follow are about when it is valid.

4. Judicial decisions

In India this is the most productive source of all, and an answer that puts the Constitution first and stops has missed the point of the subject.

There is no Administrative Procedure Act in India. Take away the decided cases and there is no rule against bias, no right to a hearing, no duty to give reasons, no doctrine of legitimate expectation, no proportionality, no test for excessive delegation, and no distinction between sovereign and non-sovereign functions. Every one of those is judge made.

Judicial decisions operate as a source in three ways.

By declaring doctrine. The Supreme Court states a principle which binds all courts under Article 141, and the principle then governs administrative behaviour generally, not only the parties.

By interpreting statutes. The meaning a court gives to "public interest" or "reasonable cause" in an Act becomes part of the Act for practical purposes.

By developing remedies. Compensation for a constitutional wrong, and public interest litigation, were both created by the courts without any statute authorising them.

And because doctrine is judge made, it can be unmade. A rule stated in 1976 may be overruled in 2017, which is what happened to the majority view in the Emergency detention case discussed in [Rule of Law].

5. Administrative directions, circulars and instructions

Government departments issue enormous quantities of guidance: circulars, office memoranda, standing orders, manuals and executive instructions. They are not made under any statutory power to legislate, so they are not delegated legislation, and the ordinary position is that they do not by themselves create rights enforceable by a citizen.

But they are a real source, for four reasons that an examiner rewards.

1. They bind the administration internally, and an officer who ignores a departmental instruction can be proceeded against for it.
2. They fill the space where a statute confers a discretion and lays down no criteria, which is a very large space.
3. Where a department publishes a scheme or a policy, a person who acts on it may be entitled to hold the department to it, which is the doctrine in [The Doctrine of Legitimate Expectation] and, where a promise has been acted on, [Estoppel and Waiver against the Government].
4. Departing from a published policy without explanation in one case while following it in others is arbitrary under Article 14 and is a ground of review.

The trap is to call them "law". They are not. Say instead that they are administratively binding, that they structure discretion, and that they can generate a legitimate expectation.

6. Reports, commissions and administrative practice

Two smaller sources complete the list.

Reports of committees and commissions do not have the force of law, but they shape it and they are quoted in judgments. The Committee on Ministers' Powers, which reported in England in 1932 and is discussed in [Delegated Legislation and Why It Grew], the Franks Committee on tribunals and inquiries of 1957, the First Administrative Reforms Commission of 1966 which recommended the Lokpal and Lokayukta and is discussed in [The Ombudsman], the Law Commission of India, and the Second Administrative Reforms Commission, are the ones this syllabus touches.

Custom and settled administrative practice is the weakest source, but a long and consistent practice is evidence of how a power has always been understood, and a sudden departure from it invites the question why.

Which source prevails

A worked example

The Maharashtra Government wishes to reserve a proportion of stage carriage permits for operators from a particular district.

If it does this by constitutional amendment, no court can test it except against the basic structure. If it does it by statute, the statute is valid unless it offends Articles 14 or 19. If it does it by rule made under the Motor Vehicles Act, the rule must be within the rule making power conferred by the Act and must not offend the Constitution, so there are two tests to satisfy instead of one. If it does it by circular to the Transport Authority, the circular cannot cut down a right the Act gives an applicant, and an applicant refused a permit on the strength of it can say that the Authority fettered its statutory discretion by treating a circular as binding: [Grounds of Judicial Review: Failure to Exercise Discretion].

Same policy, four instruments, four different legal positions. That is what knowing the sources is for.

What it does NOT mean

It does not mean the six sources are of equal weight. The Constitution is supreme, and in practice judicial decisions supply most of the actual doctrine.

It does not mean that everything a government issues is law. Circulars, press notes and manuals are not law, however official they look.

It does not mean English decisions are a source in India. They are persuasive only. Indian courts cite Wednesbury and Ridge v Baldwin constantly, but those cases operate through the Indian decisions that adopted them, not on their own authority.

Quick revision

1. Six sources: Constitution, statutes, delegated legislation, judicial decisions, administrative directions, and reports with administrative practice.
2. The Constitution both creates administrative power (Articles 53, 154, 73, 162, Part XIV, 323A, 323B) and controls it (Articles 13, 14, 19, 21, 32, 226, 227, 299, 300).
3. Judicial decisions are the largest working source, because India has no Administrative Procedure Act.
4. Delegated legislation is law; administrative circulars are not, but they bind internally, structure discretion and can found a legitimate expectation.
5. Hierarchy: Constitution, then statute, then delegated legislation, then circulars; practice never validates illegality.
6. Assent is not commencement: an Act on the statute book may never have been brought into force.

Test yourself

1. State the sources of administrative law in India and explain which is the most important. The Constitution, statutes, delegated legislation, judicial decisions, administrative directions, and reports and administrative practice. The Constitution is the highest, since everything else must conform to it, and it is unusual in being both the source of administrative power and the source of the control over it through Articles 32, 226 and 227. In terms of the actual content of the subject, judicial decisions are the most productive, because India has no general statute on administrative procedure and the doctrines of natural justice, review of discretion, legitimate expectation, proportionality and excessive delegation are all judge made.

2. Are administrative circulars a source of law? Give reasons. They are a source of administrative law but they are not law. They are not made under a power to legislate, so they cannot create rights enforceable in themselves and cannot override a statute or a rule. They are nevertheless important: they bind the administration internally, they supply criteria where a statute confers a bare discretion, a published scheme can create a legitimate expectation, and departing from a published policy in an individual case without explanation is arbitrary under Article 14.

3. Which provisions of the Constitution supply the remedies in administrative law? Article 32, giving the Supreme Court power to issue writs for the enforcement of fundamental rights; Article 226, giving the High Courts a wider power to issue writs both for fundamental rights and for any other purpose; and Article 227, giving the High Courts superintendence over all courts and tribunals within their jurisdiction.

4. A departmental circular conflicts with a rule framed under the parent Act. Which prevails and why? The rule prevails. A rule framed under a statutory rule making power is delegated legislation and has the force of law; a circular is an executive instruction with no legislative force. The circular can operate only in the space the rule leaves open.

5. Why is it wrong to treat an Act as part of the law merely because it has received the President's assent? Because assent is not commencement. An Act comes into force on the date it appoints or on a date notified by the Government, and until then it has no operation. The Whistleblowers' Protection Act 2014 received assent on 9 May 2014 and has never been brought into force, because no notification under its section 1(3) has ever been issued.