LLM Group 1 Constitutional and Administrative Law Administrative Process Nature and Scope 2016 Question Paper with Solutions

For full marks, cover: the comparison theme by theme rather than country by country, because five country descriptions in sequence is a list and not a comparative account. Six themes carry the marks: the source of administrative law, the control of delegated power, the existence of a procedure code, the institution that supervises the administration, the grounds and intensity of review, and the remedy including State liability. Under each theme all five systems are placed. Close with a table and with the two findings that matter, the long convergence on proportionality and codified procedure, and the sharp divergence of the last two years, in which the United States overruled Chevron in June 2024 and returned the interpretation of statutes to the courts.

Theme two: control of the power to delegate

Germany states the limit in the constitutional text. Article 80(1) of the Basic Law requires that where a statute authorises the making of subordinate legislation, the content, purpose and extent of the authority be determined in the statute itself. The United States derives the limit from the vesting clause as the intelligible principle test of J.W. Hampton, Jr. and Co. v. United States, 276 US 394 (1928), applied to invalidate a statute only in Panama Refining Co. v. Ryan, 293 US 388 (1935) and A.L.A. Schechter Poultry Corp. v. United States, 295 US 495 (1935). India reached the same place by construction of a written constitution in In re Delhi Laws Act, 1912, AIR 1951 SC 332, which held that the essential legislative function, the laying down of policy and its enactment into a binding rule, may not be delegated. France confines the domain of statute itself in Article 34 of the Constitution of 1958 and treats everything outside it as regulatory. The United Kingdom, having parliamentary sovereignty, has no doctrine of excessive delegation at all: Parliament may delegate as widely as it wishes, and the only control is construction of the enabling words.

Theme four: who supervises the administration

Two families. The common law systems, the United Kingdom, the United States and India, use one hierarchy of ordinary courts, supplemented by tribunals and, in America, by agency adjudication. The continental systems use a separate administrative jurisdiction: in France the tribunaux administratifs, the cours administratives d'appel and the Conseil d'État, with a Tribunal des conflits to allocate jurisdiction between the two orders; in Germany the Verwaltungsgericht, the Oberverwaltungsgericht and the Bundesverwaltungsgericht, with separate finance and social courts and the Federal Constitutional Court above them.

India's position within the common law family is distinctive in one respect: judicial review is not a judge made remedy but a constitutional guarantee under Articles 32 and 226, and in L. Chandra Kumar v. Union of India, (1997) 3 SCC 261 seven judges held that this jurisdiction is part of the basic structure and cannot be excluded even by amendment. No other system in the comparison places its supervisory jurisdiction beyond the reach of the legislature in that way.

France reviews for incompétence, defect of form, détournement de pouvoir and violation of law, and controls evaluation through the erreur manifeste d'appréciation; Benjamin (Conseil d'État, 19 May 1933) applied what is in substance a necessity test to a ban on a public meeting.

The United States has just changed its answer. Under Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 US 837 (1984), a court faced with an ambiguous statute had to accept any reasonable agency interpretation. In Loper Bright Enterprises v. Raimondo, decided 28 June 2024 by six to three, the Supreme Court overruled Chevron, holding that Section 706 of the Administrative Procedure Act requires courts to exercise independent judgment on what a statute means; agency views retain only the weaker respect of Skidmore v. Swift and Co., 323 US 134 (1944), and discretionary policy choices continue to be reviewed as arbitrary and capricious.

On liability the systems separate sharply. Blanco (Tribunal des conflits, 8 February 1873) made French administrative liability autonomous: a child injured by a wagon of the State tobacco factory at Bordeaux could not sue under the Civil Code, because the liability of the State for damage caused by persons it employs in a public service is neither general nor absolute and is governed by special rules administered by the administrative courts. Germany provides for it constitutionally in Article 34 of the Basic Law read with the Civil Code. England abolished Crown immunity by the Crown Proceedings Act, 1947 and America waived it in part by the Federal Tort Claims Act, 1946. India still labours under a distinction the others have abandoned, the sovereign and non-sovereign function test of Kasturilal Ralia Ram Jain v. State of Uttar Pradesh, AIR 1965 SC 1039, narrowed in N. Nagendra Rao and Co. v. State of Andhra Pradesh, (1994) 6 SCC 205 but never overruled. What India has built instead is a public law remedy the others lack: compensation in a writ petition for the violation of a fundamental right, from Rudul Sah v. State of Bihar, (1983) 4 SCC 141, where a man was detained for fourteen years after acquittal, to Nilabati Behera v. State of Orissa, (1993) 2 SCC 746.

The comparison in a table

Three of the comparative authorities worked in full

A comparative account is stronger for working two or three of its authorities rather than naming twenty, and these three carry the three legal traditions.

Ridge v. Baldwin, [1964] AC 40 (England). Ridge was the Chief Constable of Brighton. He was acquitted of a criminal charge, but the trial judge made observations critical of his leadership, and the watch committee dismissed him at a meeting to which he was not invited and of which he had no notice of the case against him. The House of Lords declared the dismissal void. Until then natural justice had been thought to apply only where a body had a superadded duty to act judicially, a limitation that had grown out of Nakkuda Ali and the wartime cases; Lord Reid rejected it, holding that the duty to act fairly follows from the effect of the decision on the individual. English administrative law dates its modern period from that decision, and India's own dissolution of the same distinction in A.K. Kraipak v. Union of India, (1969) 2 SCC 262 followed five years later.

Loper Bright Enterprises v. Raimondo, decided 28 June 2024 (United States). Atlantic herring fishermen challenged a rule of the National Marine Fisheries Service requiring them to pay the wages of the federal observers carried on their boats, the statute being silent on who should bear the cost. Under Chevron the courts below had upheld the rule as a reasonable reading of an ambiguous statute. By six to three the Supreme Court overruled Chevron, holding that Section 706 of the Administrative Procedure Act, which directs the reviewing court to decide all relevant questions of law, requires courts to exercise independent judgment; agency views retain only the persuasive weight of Skidmore v. Swift and Co., 323 US 134 (1944), while genuine exercises of delegated policy discretion remain reviewable as arbitrary and capricious. The facts matter to the comparison: the question was not a grand constitutional one but who pays for an observer, and forty years of deference fell on it.