What Administrative Law Is: Definition, Nature and Scope

Griffith and Street, in England, approached it by asking three questions rather than by framing a sentence: what sort of power does the administration exercise, what are the limits of that power, and by what means is the administration kept within those limits. That is not a definition so much as a syllabus, and it is a good one, because the three questions map exactly onto the three things a student must be able to do.

H.W.R. Wade treated administrative law first and foremost as the law about the control of governmental power, and said the primary purpose of the subject is to keep the powers of government within their legal bounds so as to protect the citizen. This is the red light view stated as a definition.

The Indian Law Institute added two matters that none of the English or American definitions covered, and they matter in India. The first is the control exercised by the legislature and by other bodies over the administration, not only by the courts, which brings in [Legislative Control over Delegated Legislation] and the Ombudsman machinery in [The Ombudsman]. The second is the liability of public authorities, which is a large part of Module III and has no counterpart in Wade's definition.

A working definition for this book

Nothing turns on choosing one, and an examiner is not looking for a winner. What is wanted is a definition that covers the four things administrative law actually deals with, and here they are.

1. Organisation and powers: which authorities exist, and what they may do.
2. Rule making: the power of the administration to make binding rules, and the limits on it.
3. Adjudication and procedure: how the administration decides matters affecting individuals, and the procedural standards it must meet.
4. Control and remedies: judicial, legislative and other control, and what an aggrieved person can obtain.

A definition that includes all four is safe. Jennings covers 1, Davis covers 3 and 4, Wade covers 4, and the Indian Law Institute adds control by other bodies and liability.

The nature of administrative law

Three propositions describe its nature, and each is examinable on its own.

It is public law. Public law governs the relationship between the individual and the State. Private law governs relationships between individuals. Administrative law is public law because on one side of every question there is always a public authority exercising a power the ordinary citizen does not have.

But the line is not clean in India, and pretending it is will cost marks. When the State makes a contract or commits a tort, the ordinary private law of contract and tort applies to it, subject to the special rules in [Contractual Liability of the State] and [Tortious Liability of the State]. So administrative law borrows from private law at its edges.

It is largely judge made. Unlike the Civil Procedure Code or the Indian Contract Act, there is no Administrative Procedure Act in India. There is no statute that sets out the principles of natural justice, the grounds of judicial review, the doctrine of legitimate expectation or the tests for excessive delegation. Every one of those was worked out by courts, case by case. This is the single most important practical fact about the subject and it explains the shape of these notes: the chapters in Modules I to III are organised around doctrines and cases, and only in Modules III and IV do statutes take over.

It is a growing law. Because it is judge made, it changes as the courts change their minds. Proportionality was not a ground of review in India thirty years ago. Additional District Magistrate, Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207, stood as authority for a generation and was overruled in 2017. A student who learns administrative law as a fixed list of rules has misunderstood it.

Facts. Additional District Magistrate, Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207, arose during the Emergency. After the Presidential Order of 27 June 1975 under Article 359(1) suspended the right to move any court for the enforcement of Articles 14, 21 and 22, detenus filed habeas corpus petitions in the High Courts challenging their detention under the Maintenance of Internal Security Act 1971. The question was whether such a petition was maintainable at all while that Order was in force.

Held. By a majority of four to one, no person had any locus standi to move a writ petition under Article 226 for habeas corpus to challenge a detention order on the ground that it was not in compliance with the Act, or was illegal, or was mala fide, or was based on extraneous considerations. Article 21 was said to be the sole repository of the right to life and personal liberty against the State, so a claim to habeas corpus was an enforcement of Article 21 and was barred by the Order. Khanna J dissented.

Why it matters here. It is used in this chapter only to show that the subject moves: it was overruled in terms in 2017. The case is treated properly, with the dissent and the overruling, in [Rule of Law].

The scope of administrative law

Scope means: what topics fall inside it. The honest answer for an Indian student is the syllabus itself, and it divides into five.

A worked example: telling the four elements apart

The State Transport Authority is empowered by an Act to grant permits for stage carriages, and the Act says the Authority "shall have regard to the interest of the public generally".

• The Authority is constituted by section 68 of the Act and consists of a chairman and two members. That is organisation and powers, Jennings' part of the definition.
• The Authority publishes a notification laying down that no permit will be granted to an operator with more than twenty vehicles. That is rule making, and whether the Authority could lawfully make such a rule is a question of delegated legislation.
• Sunil Bhosale applies for a permit and is refused after a hearing at which he was shown the objections and allowed to reply. That is adjudication and procedure.
• Sunil challenges the refusal in the High Court under Article 226 on the ground that the twenty vehicle rule is irrelevant to the interest of the public. That is control and remedies.

One statutory power, four different questions, and each belongs to a different part of the subject. Being able to sort a fact pattern into these four is most of what an examiner is testing.

What it does NOT mean

Administrative law is not the same as administration. How a department organises its files, trains its officers or fixes its targets is administration. Administrative law is concerned with those matters only so far as they have legal consequences for somebody.

It is not confined to judicial review. Judicial review is the most visible part and the largest part of the case law, but the internal appeal, the departmental inquiry, the Lokayukta and the information request are all administrative law and all dispose of far more grievances than the High Courts do.

It is not a branch of constitutional law, and not wholly separate from it either. The relationship is the subject of [Administrative Law and Constitutional Law], and the answer there is that in India the two are continuous rather than divided.

Quick revision

1. Working definition: the branch of public law determining the organisation, powers and duties of administrative authorities, the procedure they must follow, and the remedies available against them.
2. Jennings: the law relating to the administration, its organisation, powers and duties. Wide, but omits procedure and remedies and overlaps constitutional law.
3. Davis: powers and procedures of agencies, especially judicial review. Adds procedure and review, but underplays rule making and internal control.
4. Griffith and Street: three questions, what power, what limits, what means of keeping within them.
5. Wade: the control of governmental power to protect the citizen. The red light view as a definition.
6. Indian Law Institute: adds control by bodies other than the courts, and the liability of public authorities.
7. Nature: public law; largely judge made, because India has no Administrative Procedure Act; and constantly growing.
8. Scope: rule making, decision making, adjudication outside the courts, control and remedies, and liability with accountability and openness.

Test yourself

1. Define administrative law and state its scope. Administrative law is that branch of public law which determines the organisation, powers and duties of administrative authorities, prescribes the procedure they must follow in exercising those powers, and provides the remedies available to a person aggrieved. Its scope covers rule making by the administration, decision making affecting individuals and the procedural standards attaching to it, adjudication by tribunals outside the ordinary courts, the control of discretion and the remedies for its abuse, and the liability and accountability of public authorities including the right to information.

2. Compare Jennings' definition with that of K.C. Davis. Jennings defines the subject by reference to the administration itself: its organisation, powers and duties. It is comprehensive but so wide that it overlaps constitutional law, and it omits both procedure and remedies. Davis defines it by reference to the powers and procedures of administrative agencies and especially to judicial review, which supplies both the omissions but gives too little weight to administrative rule making and to control exercised otherwise than by the courts. A satisfactory definition needs the organisation from Jennings and the procedure and review from Davis.

3. Why is administrative law described as judge made law in India? Because there is no general statute laying down its principles. India has no Administrative Procedure Act. The rules of natural justice, the doctrine of excessive delegation, the grounds of judicial review, legitimate expectation and proportionality were all developed by the courts case by case, and they continue to develop.

4. Is administrative law public law or private law? It is public law, because in every administrative law question one party is a public authority exercising a power the ordinary citizen does not possess. The classification is not absolute: when the State contracts or commits a tort, the ordinary private law applies to it, subject to the special constitutional rules on contracts under Article 299 and on liability under Article 300.

5. Explain why writers differ over the definition of administrative law. Because a definition compresses a view of what the subject is for. Writers who see it as describing the machinery of government define it in terms of organisation, powers and duties, as Jennings did. Writers who see it as a means of controlling government define it in terms of limits and review, as Wade did. The disagreement is the same one that divides the red light and green light theories.