What Administrative Law Is

The remedies. The writs, the injunction, the declaration, the suit for damages, the statutory appeal. Module III again, and Module IV where those remedies stop.

The scope of the subject: four questions it asks

1. Who has the power? Was the authority that acted the authority the statute named, and was it validly constituted?
2. Was there power at all? Did the parent Act confer the power that was exercised, on the facts that existed?
3. Was the power exercised properly? For the purpose it was given, on relevant considerations, without bias, after a hearing, and reasonably?
4. What can the aggrieved person get? Quashing, a command, a declaration, compensation, or nothing at all?

A student who can turn any problem question into those four questions has the structure of an answer before reading the facts a second time.

Administrative law and constitutional law

They overlap and MU's paper sits in the overlap, because the paper belongs to Group I, Constitutional and Administrative Law. The traditional way of separating them is that constitutional law describes the structure of the State at rest, while administrative law describes it in motion. Constitutional law tells you that there is an executive and what its relation to the legislature is; administrative law tells you what happens when a particular officer of that executive refuses your licence.

In India the separation is thinner than in England, for a reason that runs through this whole book: the power to control the administration is itself constitutional. It comes from Articles 32, 226, 227 and 136, and the grounds on which it is exercised come very largely from Articles 14, 19 and 21. That is why an Indian answer on the grounds of judicial review keeps returning to arbitrariness under Article 14, and an English answer does not.

A worked example

Mrs Fernandes runs a small restaurant in Bandra. The Municipal Commissioner cancels her eating house licence, in one line, citing complaints from neighbours. She was never told what the complaints were and never asked to explain.

Ask the four questions. Who had the power: the Municipal Commissioner, if the municipal Act names him and not the Standing Committee. Was there power: the Act must permit cancellation, and it must permit cancellation for the reason given. Was it exercised properly: she was not told the case against her and had no hearing, so the audi alteram partem rule is broken, and if the complaints came from a rival with a connection to the officer there is a bias point as well. What can she get: a writ of certiorari quashing the cancellation under Article 226, very likely with a direction to decide afresh after hearing her, which is what a court usually gives rather than a licence restored by the court itself.

Notice what administrative law does not ask. It does not ask whether her restaurant is any good, whether the neighbours were right to complain, or whether Bandra needs another eating house. Those are questions for the Commissioner. The court asks only whether he reached his decision lawfully.

What administrative law is NOT

It is not an appeal. This is the single most valuable sentence in the subject. A court exercising judicial review asks whether the decision was made lawfully; a court hearing an appeal asks whether it was made correctly. The distinction is worked in full in [What Judicial Review Is].

It is not the law of the constitution of the government. Whether Parliament may legislate on a subject is constitutional law. Whether the rule the ministry made under that Act is valid is administrative law, although the two run into each other in Module IV.

It is not confined to writs. Students who meet the subject through the five writs come away thinking administrative law is a chapter of remedies. The remedies are Module III of four.

It is not the same as administrative science. How a department ought to be organised, how files should move, how many officers a district needs, are questions of public administration. Administrative law begins where the citizen's legal position is affected.

The distinction that carries marks

Sources of administrative law in India

The Constitution, which supplies both the power of review and most of its grounds. Statutes, which create the authorities and confer the powers. Delegated legislation, the rules and regulations made under those statutes, which is Module IV. Judicial decisions, which are by far the largest source: natural justice, legitimate expectation, proportionality and the doctrine of ultra vires are all judge-made. Administrative instructions and circulars, which are not law but which bind the administration in practice and can found a legitimate expectation.

Quick revision

Administrative law is the public law of the administration: its organisation, its powers, its procedure and the remedies against it. It exists because the modern State must be given wide powers and those powers must be controlled. Four questions: who had the power, was there power, was it exercised properly, and what can the aggrieved person get. It is not an appeal; it tests legality and not correctness. It overlaps constitutional law, and in India the overlap is deep because the power of review is constitutional. Its sources are the Constitution, statutes, delegated legislation, judicial decisions and administrative instructions.

Test yourself

1. Define administrative law in one sentence a examiner will accept. It is the branch of public law which determines the organisation, powers, duties and procedure of administrative authorities and provides remedies to persons aggrieved by their action.

2. Why is administrative law more constitutional in India than in England? Because the power of judicial review is written into Articles 32, 226, 227 and 136, and the grounds of review draw heavily on Articles 14, 19 and 21, whereas in England review is a common law creation and there is no written guarantee behind it.

3. A municipal officer refuses a hawking licence because the applicant belongs to a particular locality. Which of the four questions does the objection fall under? The third: the power was exercised on an irrelevant consideration, and the refusal also offends Article 14.

4. Is the question whether a bus route should be nationalised a question of administrative law? No. Whether to nationalise is a policy decision. Whether the operators whose permits will disappear were heard before the scheme was approved is a question of administrative law, and it is the question in Gullapalli Nageswara Rao v. Andhra Pradesh State Road Transport Corporation, AIR 1959 SC 308, worked in [Institutional Decisions: He Who Decides Must Hear].