Raison detre In Growth of ADMINISTRATIVE LAW Mian

Raison d'etre In Growth of ADMINISTRATIVE LAW Mian Ali Haider L. L. B. , L. L. M (Cum Laude) U. K.

INTRODUCTION Administrative Law is that portion of law which determines the organization, powers and duties of administrative authorities. n Mr. M. J Fort of England defined administrative law for the first time in the year 1929 in his book on administrative law stating that administrative law is that portion of law which is traced in rules, regulations, notifications, order, bye-laws, schemes, circulars etc and are also implicitly found in the prerogatives with an object to fulfill public law. n

n n The most significant and outstanding development of the twentieth century is the rapid growth of administrative law. Though administrative law has been in existence, in one form or the other, before the 20 th century, it is in this century that the philosophy as to the role and function of the State has undergone a radical change. The governmental functions have multiplied by leaps and bounds Today, the State is not merely a police State, exercising sovereign functions, but as a progressive democratic State, it seeks to ensure social security and social welfare for the common man, regulates the industrial relations, exercises control over the production, manufacture and distribution of essential commodities, starts many enterprises, tries to achieve equality for all and ensures equal pay for equal work.

PROBLEMS WITH DEFINITIONS It is indeed difficult to evolve a scientific, precise and satisfactory definition of Administrative Law. n Many jurists have made attempts to define it, but none of the definitions has completely demarcated the nature, scope and content of administrative law. n Either the definitions are too broad and include much more than necessary n or they are too narrow and do not include all essential ingredients n

n n For some it is the law relating to the control of powers of the government. The main object of this law is to protect individual rights. Others place greater emphasis upon rules which are designed to ensure that the administration effectively performs the tasks assigned to it. Yet others highlight the principal objective of Administrative Law as ensuring governmental accountability, and fostering participation by interested parties in the decision- making process

n n Ivor Jennings gave most widely-accepted definition ¨ Administrative Law is the law relating to the administration. It determines the organization, powers and duties of the administrative authorities. According to Griffith and Street, there are three difficulties: ¨ It does not distinguish administrative law from constitutional law; ¨ It is a very wide definition, for the law which determines the powers and functions of administrative authorities may also deal with the substantive aspects of such powers, for example, legislations relating to public health services, houses, town and country planning, etc. ; but these are not included within the scope and ambit of administrative law. ¨ Again, it does not include the remedies available to an aggrieved person when his rights are adversely affected by the administration.

n According to Kennith Culp Davis ¨ “Administrative Law is the law concerning the powers and procedures of administrative agencies, including especially the law governing judicial review of administrative action. ” n n n In one respect, this definition is proper as it puts emphasis on procedure followed by administrative agencies in exercising their powers. However, it does not include the substantive laws made by these agencies. According to Davis, an administrative agency is a governmental authority, other than a court and a legislature which affects the rights of private parties either through administrative adjudication or rulemaking.

n n The difficulty in accepting this definition, however, is that it does not include many non adjudicative and yet administrative functions of the administration which cannot be characterized as legislative or quasi-judicial. Another difficulty with this definition is that it puts an emphasis on the control of the administrative functions by the judiciary, but does not study other equally important controls, e. g. ¨ parliamentary control of delegated legislation, ¨ control through administrative appeals or revisions and the like

n n According to Professor Upendra Bakshi of India ¨ “Administrative law as that portion of law which controls the abuse of powers by the administrative authorities so as to protect the rights of individuals” On an analysis of the above definitions, it may be submitted that there is no comprehensive definition of administrative law till today n Administrative law is that portion of law which determines the organization, powers and duties of administrative authorities, administrative agencies, quasi – administrative authorities and the law that governs the judicial review of administrative activities.

NATURE & SCOPE OF ADMINISTRATIVE LAW n n The main object of the study of administrative law is to unravel the way in which these administrative authorities could be kept within their limits so that the discretionary powers may not be turned into arbitrary powers. Kennith Culp Davis divided Admin law in three parts ¨ The powers vested in administrative agencies; ¨ The requirements imposed by law upon the exercise of those powers; and ¨ Remedies available against unlawful administrative actions.

SOURCES OF ADMIN LAW n n n In few legal systems, there are statutes laying down rules, principles and procedures to be followed by administrative agencies. But even in absence of specific enactments dealing with a particular situation, certain fundamental rules, basic principles and minimum requirements of law are well settled and all authorities are bound to observe them. A person adversely affected by any action of an administrative authority has right to challenge such action in an appropriate body or a court of law.

UNITED STATES OF AMERICA n n In USA the following are the sources of administrative law: ¨ Administrative Procedure Act, 1893 ¨ Statutory Instrument Act, 1946 ¨ Federal Tort Claim Act, 1947 ¨ The Tribunals and Enquiries Act, 1958 ¨ The Parliamentary Commissions Act, 1962 Apart from these legislations, the Constitution of USA is also considered as a source of administrative law in addition to the judgments delivered by the U. S Supreme Court

UNITED KINGDOM n The sources of administrative law in the UK are: ¨ Rule Publication Act, 1946 ¨ Federal Torts Claims Act, 1947 etc. n In the UK, since there is no written constitution, the bulk source of administrative law is derived from the decisions delivered by the superior courts, the customary practices that are followed in the course of administration and so on.

PAKISTAN & INDIA n n n In India & Pakistan there is a written constitution which is considered as a grundnorm. Till today there is no legislation enacted either by the parliament or state legislature exclusively on administrative law. In the absence of legislations, the main sources of administrative law are rules, regulations, orders, notifications, bye-laws, schemes, governmental resolutions, memorandums, department circulars etc

n n There also legislations which provide for the establishment of tribunals. For example, ………. . provides for the establishment of national tribunals, industrial tribunals and labour courts. There are other legislations for establishing special courts, but all these legislations provide different procedures and different powers for functioning of the tribunals. Therefore, for the purpose of attaining uniformity in maintaining procedures and for prescribing powers, there is a need for comprehensive legislation on administrative law in Pakistan & India.

Raison d'etre In Growth of ADMINISTRATIVE LAW n Administrative law is not a codified, written or well-defined law like the Contract Act, Penal Code, Transfer of Property Act, Evidence Act, Constitution of Pakistan, etc. It is essentially an unwritten, uncodified or ‘Judge-made’ law. It has developed slowly in the wake of factual situations before courts. ¨ In a welfare State, administrative authorities are called upon to perform not only executive acts, but also quasi-legislative and quasijudicial functions. ¨ They used to deem the rights of parties and have become the ‘Fourth branch’ of Government, a ‘Government in miniature’. Legal scholars have compared administrative law to the rise of equity. ¨ n It has its origin in need and necessity in protecting personal rights and in safeguarding individual interests.

n n n Administrative law is considered as an intensive form of government. It deals with the pathology of functions. The functions that are discharged by the administrative authorities differ from time to time depending upon the changes in socio-economic conditions in any nation There is a radical change in the philosophy as to the role played by the State. The negative policy of maintaining 'law and order' and of 'laissez faire' is given up. The State has not confined its scope to the traditional and minimum functions of defence and administration of justice, but has adopted the positive policy and as a welfare State has undertaken to perform varied functions.

n n n Urbanization – Due to the Industrial Revolution in England other countries and due to the emergence of the factory system in our country, people migrated from the countryside to the urban areas in search of employment in factories and large scale industries. As a result of which there arose a need for increase in providing housing, roads, parks, effective drainage system etc. ¨ Legislations were enacted to provide all these basic facilities and accordingly administrative authorities were required to make rules and regulations, frame schemes for effective infrastructure and facilities which ultimately lead to the growth of administrative law

n n n To meet Emergency Situations – Enacting legislations, getting assent from the President is all a lengthy process, whereas it is very easy and quick to frame schemes and rules for meeting any emergency situations that arise in a locality. Due to the flexibility of making the rules, obviously there is a constant growth of administrative law making in the country. There is scope for experiments in administrative process. Here, unlike legislation, it is not necessary to continue a rule until commencement of the next session of the legislature. Here a rule can be made, tried for some time and if it is found defective, it can be altered or modified within a short period. Thus, legislation is rigid in character while the administrative process is flexible.

n The judicial system proved inadequate to decide and settle all types of disputes. ¨ It was slow, costly, inexpert, complex and formalistic. ¨ It was already overburdened, and it was not possible to expect speedy disposal of even very important matters, e. g. disputes between employers and employees, lockouts, strikes, etc. ¨ These burning problems could not be solved merely by literally interpreting the provisions of any statute, but required consideration of various other factors and it could not be done by the ordinary courts of law. ¨ Therefore, industrial tribunals and labour courts were established, which possessed the techniques and expertise to handle these complex problems.

The legislative process was also inadequate. It had no time and technique to deal with all the details. n It was impossible for it to lay down detailed rules and procedures, and even when detailed provisions were made by the legislature, they were found to be defective and inadequate, e. g. , rate fixing. n And, therefore, it was felt necessary to delegate some powers to the administrative authorities. n

n n There is scope for experiments in administrative process. Here, unlike legislation, it is not necessary to continue a rule until commencement of the next session of the legislature. Here a rule can be made, tried for some time and if it is found defective, it can be altered or modified within a short period. Thus, legislation is rigid in character while the administrative process is flexible. The administrative authorities can avoid technicalities. Administrative law represents functional rather than a theoretical and legalistic approach. The traditional judiciary is conservative, rigid and technical. It is not possible for the courts to decide the cases without formality and technicality. The administrative tribunals are not bound by the rules of evidence and procedure and they can take a practical view of the matter to decide complex problems.

n n n Administrative authorities can take preventive measures, e. g. licensing, rate fixing, etc. Unlike regular courts of law, they have not to wait for parties to come before them with disputes. In many cases, these preventive actions may prove to be more effective and useful than punishing a person after he has committed a breach of any provision or law. As Freeman says, ¨ n n "Inspection and grading of meat answers the consumer's need more adequately than does a right to sue the seller after the consumer is injured. “ Administrative authorities can take effective steps for enforcement of the aforesaid preventive measures; e. g. suspension, revocation and cancellation of licences, destruction of contaminated articles, etc. which are not generally available through regular courts of law.

The END!!! Thank you