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BASIC FUNCTION OF ADMINISTRATIVE LAW IN THE FORMATIVE PERIOD AS

LAID DOWN BY PROF. A.V DICEY : AN EVALUATION

Administrative Law (6.5)

Submitted by

Rishabh Sengupta

SM0116036

3rd Year & 6th Semester

National Law University, Assam


Contents
Table of Cases ............................................................................................................................................... 3
Aim ............................................................................................................................................................... 3
Objective ....................................................................................................................................................... 3
Scope and limitations .................................................................................................................................... 3
Research Questions ....................................................................................................................................... 3
Research methodology .................................................................................................................................. 4
Literature Review.......................................................................................................................................... 4
Introduction ................................................................................................................................................... 4
Purpose of Administrative Law .................................................................................................................... 7
Features ......................................................................................................................................................... 8
Dicey‘s Theory on Rule of Law.................................................................................................................... 8
There are three elements central to the theory .......................................................................................... 8
Rule of Law Vs Administrative Law .......................................................................................................... 10
Functions of Administrative Law ........................................................................................................... 12
Judicial review and rule of law ................................................................................................................... 12
Administrative Law in India ....................................................................................................................... 14
Conclusion .................................................................................................................................................. 16
Bibliography ............................................................................................................................................... 16

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Table of Cases
 E. P. Royappa v. State Of Tamil Nadu.
 R v. Disciplinary Committee of the Jockey Club.
 State of U.P. v. Johri Mai.

Aim
The aim of this research paper is to analyse the basic function of administrative law in the
formative period as laid down by prof. A.V Dicey.

Objective
The objectives of the research paper are:

 To know the basic function of administrative law in the formative period as laid down by
prof. A.V Dicey.
 To know the Dicey's Theory on Rule of Law.
 To know the Administrative Law in India.

Scope and limitations


The scope of the research paper is limited to the study of the basic function of administrative law
in the formative period as laid down by prof. A.V Dicey.

Research Questions
The research Questions of the research paper are:

 What is the basic function of administrative law in the formative period as laid down by
prof. A.V Dicey.?
 What is the Dicey's Theory on Rule of Law?
 What is the Administrative Law in India?

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Research methodology
For the completion of the project the doctrinal method has been used where it will be concerned
with the documental research, as the library was the only source of information put to use.
Internet source also provided substantive information. Here the researcher has followed the
research template given by National Law University, Assam.

Literature Review
 C. K. Takwani, Lectures on Administrative Law, State Mutual Book &
Periodical Service,Limited, 1988

Justice. C.K.Takwani’s Lectures on administrative law is an outstanding book


which explains Administrative law in the most coherent and logical manner. The
book helped the researcher to take the note of various case laws. And also helped in
laying the detail analysis of of the basic function of administrative law in the
formative period as laid down by prof. A.V Dicey.

 M P Jain & S N Jain’s Principles of Administrative Law, Lexis Nexis; Seventh


edition, 2017.
M.P.Jain's book on administrative law is an outstanding book which explains
Administrative law in the most coherent and logical manner. The book helped the
researcher to take the note of various case laws. And also helped in laying the detail
analysis of of the basic function of administrative law in the formative period as laid
down by prof. A.V Dicey.

Introduction

There is a great divergence of opinion regarding the definition of concept of the administrative
law. The is because of the tremendous increase in the administrative process that it makes
impossible to attempt any precise definition of administrative law which can cover the entire
range of the administrative process. Hence one has to expect differences of scope and emphasis
in defining administrative law. This is true not only due to the divergence of the administrative

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process within a given country, but also because of the divergence of the scope of the subject in
the continental and Anglo – American legal systems.

However, two important facts should be taken into account in an attempt of understanding and
defining administrative law. Firstly, administrative law is primarily concerned with the manner
of exercising governmental power. The decision making process is more important than the
decision itself. Secondly, administrative law cannot fully be defined without due regard to the
functional approach. This is to mean that the function (purpose) of administrative law should be
the underlying element of any definition. The ultimate purpose of administrative law is
controlling exercise of governmental power. The ‘control aspect’ impliedly shades some light on
the other components of its definition. Bearing in mind these two factors, let us now try to
analyze some definitions given by scholars and administrative lawyers.

Austin has defined administrative law, as the law which determines the ends and modes to which
the sovereign power shall be exercised. In his view, the sovereign power shall be exercised either
directly by the monarch or indirectly by the subordinate political superiors to whom portions of
those powers are delegated or committed in trust.

Schwartz has defined administrative law as “the law applicable to those administrative agencies,
which possess delegated legislation and adjudicative authority.’ This definition is a narrower
one. Among other things, it is silent as to the control mechanisms and those remedies available to
parties affected by an administrative action.

Jennings has defined Administrative law as “the law relating to the administration. It determines
the organization, powers and duties of administrative authorities. Massey criticizes this definition
because it fails to differentiate administrative and constitutional law. It lays entire emphasis on
the organization, power and duties to the exclusion of the manner of their exercise. In other
words, this definition does not give due regard to the administrative process, i.e. the manner of
agency decision making, including the rules, procedures and principles it should comply with.

Dicey like Jennings with out differencing administrative law from constitutional law defines it in
the following way. ‘Firstly, it relates to that portion of a nation’s legal systems which determines
the legal status and liabilities of all state officials. Secondly, defines the rights and liabilities of

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private individuals in their dealings with public officials. Thirdly, specifies the procedures by
which those rights and liabilities are enforced.’

This definition is mainly concerned with one aspect of administrative law, namely judicial
control of public officials. It should be noted, that the administrative law, also governs legislative
and institutional control mechanisms of power. Dicey’s definition also limits itself to the study of
state officials. However, in the modern administrative state, administrative law touches other
types of quasi- administrative agencies like corporations, commissions, universities and
sometimes, even private domestic organizations. Davis who represents the American approach
defines administrative law as; “The law that concerns the powers and procedures of
administrative agencies, specially the law governing judicial review of administrative action.”
The shortcoming of this definition according to, Massey is that it excludes rule - application or
purely administrative power of administrative agencies. However, it should be remembered that
purely administrative functions are not strictly within the domain of administrative law, just like
rule making (legislative) and adjudicative (judicial) powers. Davis’s definition is indicative of
the approach towards administrative law, which lays great emphasis on detailed, and specific
rule-making and adjudicative procedures and judicial review through the courts for any
irregularity. He excludes control mechanisms through the lawmaker and institution like the
ombudsman.

According to Dicey, Administrative Law is that portion of a nation’s legal system which
determines the legal status and liabilities of all state officials and defines the rights and liabilities
of private individuals in their dealing with public officials. It also specifies the procedures by
which those rights and liabilities are enforced)

The above definition suffers from imperfections.

It does not cover several aspects administrative law; it excludes the study of administrative
processes and examination of various powers and functions of administrative authorities and it
covers only one aspect of administrative law i.e judicial control of public officials.

Administrative Law deals with the structure towers a functions of the organs of administration;
the limits of their powers; the procedure which the administrative authorities adopt in the

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exercise of their powers and the various modes of control including particularly judicial control
over the different kinds of powers exercised by them.

In India in present time every administrative authority has to use discretionary power for its
functioning. Many of the things that administrative authorities are empowered to do involve the
exercise of discretion: decision have to be made in the public interest, based on policy. On the
other hand it is also true that there are many instances where this discretionary power has been
misused. Just as the principle of reasonableness and its corollaries can be used to control the
substance of an administrative decision, so the principle of natural justice can be used to enforce
fair procedure. Administrative law ensures exercise of power according to law. Researcher
observed in today‘s administrative law, there have been introduced a form of a special procedure,
where the application for Judicial Review designed for the purpose of challenging government
decisions and is handled by a distinct but fluctuating group of Judges. An independent and
impartial judiciary said to be first condition of liberty. It is custodian of the rights of the citizens.
In the present times every administrative authority has to use discretionary power for its
functioning but there are many instances where this discretionary power has been misused. The
apex court innovated the concept of public accountability and imposed personal liability in cases
where power is exercised arbitrarily.
Public accountability is being proved to be a good tool to control the arbitrary exercise of power.

Purpose of Administrative Law

1. What sort of powers does the administration exercise


2. What procedures do administrative authorities follow in the exercise of the powers of the
administration
3. What are the limits on the powers of the administration
4. What are the ways in which the administration is kept within those limitations
5. What remedies are available for the individual against the illegal actions of
administrators.

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Features

1. It subordinates the common law rights of personnel freedom and private property to the
conception of social or common goods.
2. It lays down certain flexible standards to be applied to cases instead of cut and dried legal
rules
3. Interpretation duplication is left to the administrative tribunals especially constituted for
the purpose
4. places public authorities in an advantageous position over the private individuals.
5. is not codified and is an experimental arid-dynamic condition. It is a law in the making.

Dicey‘s Theory on Rule of Law

There are three elements central to the theory1

a) The absolute supremacy or predominance of regular law as opposed to the influence of


arbitrary power and excludes the existence of arbitrariness or even wide discretionary authority
on the part of the government.
b) It means equality before the law, or equal subjection to all classes to the ordinary law of land.
c) Constitution is the result of the ordinary law as developed by the courts through the common
law tradition.
These principles can be explained as follows:
Under (a) and (b), the government must govern according to the law. The question is: what is the
balance between rule and discretion to be? The first propositions would be that no special laws
are to apply to the executive that do not apply to the ordinary citizen; but when looking at society
today, it is clear that there are many bodies that do enjoy special powers. For example, the police
are given wider powers of arrest under the Police and Criminal Evidence Act 1984 and other
public order legislation. The same is true of officers of the Inland Revenue. Equally, the
twentieth century has seen the widespread growth of discretionary powers at the hands of public
bodies, such as those established to administer the welfare state.2

1
Peter Leyland & Terry Woods, Administrative Law, 26 (2003).
2
Toni M. Massaro, ―Empathy, legal storytelling, and the rule of law: new words, old wounds?‖, Michigan law
review, vol. 67, No.8, 2099-2127, at 2099, available at www.jstor.org/stable/1289301, accessed on 01 February

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One good example is where a person applies to the Social Fund for a loan while in receipt of
mandatory benefits. There is no right of appeal from this discretionary decision for the applicant.
(See also the Regulatory Reform Act 2001, which replaces sections 1 to 5 and Schedule 1 to the
Deregulation and Contracting out Act 1999. The new provisions allows the special procedure to
repeal primary legislation by means of delegated legislation (present in the old Act) to be used
for the purpose of removing or reducing burdens on business, and also for the purpose of
imposing burdens which are proportionate to the benefit which is expected to result from the
enactment.
The Diceyan formulation, then clearly implies that discretionary powers of government ought to
be limited. However, nowhere did Dicey elaborate in any detail on the kinds of mechanisms
which would be appropriate for doing this. It is also worth noting that, at the same time, he
emphatically rejected the French system of administrative law known as the droit administratif.
This was because of his emphasis on the ordinary law courts as opposed to any specialized.3
administrative law courts, as in France. Dicey considered that the law was founded on fundament
principles of fairness that were capable of supporting equality of treatment before the courts
whatever the status of the individual concerned. It is also reinforced by a belief that the rule of
law is particularly relevant to the protection of equality, and that equality is related to the
generality of the law. This last belief is, as has been noted before, mistaken: racial, religious
and all manner of discrimination is not only compatible with but often institutionalized by
general rules. For example, one aspect of the War Crimes Act 1991, s 1, provides for
retrospective criminal legislation to be applied against alleged Nazi war criminals, irrespective of
nationality, even if at the time of the offence they were not British citizens.4
For Dicey, the statement in (c) above that the constitution is the result of the ordinary law, as
developed by the courts through the common law tradition, meant an emphasis on judge- made
law as opposed to powers that emanate from statute, or which were embodied in a codified
constitutional framework. He believed that the courts, by means of developing case law, would
prevent the unrestricted use of power by executive authorities and thereby protect the liberties

2013.
3
Michael W. Dowdle, ―Public Accountability: Design, Dilemmas and Experiences‖, available at www.cambridge
.org, accessed on 10 June 2015
4
H.W.R. Wade, Administrative law, 4 (1988).

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of the citizen. In essence, the wielding of such authority in an excessive manner would be curbed
precisely because it violated the spirit of our constitution.
It is interesting to compare the droit administratif system in France, of which Dicey was so
scornful, in which the citizen can seek to secure a remedy for a grievance by means of simple
application to the nearest administrative tribunal.5

Rule of Law Vs Administrative Law

Features of Rule of Law

1. Rule of Law implies equality before law


2. None shall be detained unless his guilt has been established in a duly constituted court of
law and in accordance with a duly constituted procedure. ‘Habeas corpus’.
3. Rules of constitution far from being the source of the rights of the individuals themselves
the results of those rights as they have been upheld in courts of law. For fundamental
rights, an individual does not look to the constitutional rules as to the courts of law.
4. People should not take law into their hands.
5. The burden of rule of law is the liberty of the individual.

In France, parallel to the Ordinary courts of Law, there were Administrative Courts; charged
with wing controversies mainly involving claims-against the State, and they apply a body of law
separate and distinct from that of the Civil Law.6

In England, everybody is subject to the same law and same set of law courts. Napoleon
Bonaparte was the founder of the Droit Administration. Features

The power of administration to act suo moto and to impose directly on the subject the duty to
obey its decision the power of administration to take decisions and to execute them suo moto

5
Aditi Tondon, ―PM bats for limiting RTI to protect individual privacy‖, The Tribune vol.132 No. 284, at 1 (13-
10-2012).
6
Government Withdrew RTI Act Amendments‖ The Tribune, Chandigarh, at 11(November 2, 2012), available at
http://www.tribuneindia.com/2012/20121102/main4.htm , accessed on April 20, 2019.

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may be exercised only within the ambit of law which protects individual liberties against
administrative arbitrariness the existence of a specialized administrative jurisdiction.7

Government agency action can include rulemaking, adjudication, or the enforcement of a


specific regulatory agenda. Administrative law is considered a branch of public law. As a body
of law, administrative law deals with the decision-making of administrative units of government
e.g. tribunals, boards or commissions that are part of a national regulatory scheme in s c areas as
police law, international trade, manufacturing, the environment, taxation, broadcasting,
immigration and transport. Administrative law expanded greatly during the twentieth century, as
legislative bodies world-wide created more government agencies to regulate the increasingly
complex social, economic and political spheres of human interaction.8

Dicey opposed administrative law for the following reasons.

1. Administrators enjoy a whole body of special rights, privileges and their actions are to be
determined on principles different from considerations which fix the legal rights and
duties of ordinary citizens
2. Government and its officials should be independent of and free from _jurisdiction of
ordinary courts,

Reasons for the Growth of Administrative Law

1. Growing socio-economic functions of the state


2. industrialization
3. Scientific and technological developments
4. to control administrative discretion and arbitrariness

Growing social consciousness of the age, the increasing complexities of modern administration-
and an incredible rise in the tempo of life caused by the manifold application of science and
technology to the habits of life are responsible for the growth and development of administrative
law.

7
S.P Sathe, Administrative Law, 23 (1994).
8
E. P. Royappa v. State Of Tamil Nadu, AIR 1974 SC 555

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Functions of Administrative Law

1. It is accepted as a necessary evil of all democratic countries where welfare schemes for
the general public are planned.
2. It primarily consists in finding the ways in which administration could be kept within a
limit, so that the discretionary powers of administrative authorities could not become
arbitrary powers.
3. Supplies a solution to the problem of reconciling freedom and justice of the private
citizen with the necessities of a modern government charged with the promotion of social
and economic policies.
4. Provides for fair administrative procedure to minimize arbitrariness on the part of
administration.
5. Substitutes rule of law in place of discretion as far as it is possible.

Judicial review and rule of law

The rule of law also demands that the law itself fulfills minimum standards. It is this concept
with which we are concerned in the context of judicial review where the rule of law‘ assumes
meanings encompassing principles of accountability, equality, and the absence of arbitrariness
and the presence of fairness in decision making. Judicial review is a mechanism to ensure the
accountability of executive power within the constitution. As such, it allows the courts (under
certain circumstances) to rule on the legality of how executive powers are exercised.9

There are relatively few mechanisms by which we can challenge the operation of the state;
however, judicial review allows the courts to rule on the legality of decisions made by the state
and, in some cases, overturn them. This is a powerful weapon for the individual, ensuring that
those in power do not exceed their authority.10 For this reason, judicial review is an essential
topic within any course on constitutional and administrative law. As stated previously, not all

9
D.D. Basu, Introduction to the Constitution of India, 88 (2009).
10
H.M Seervai, Constitutional Law of India, 437(2007).

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executive decisions are open to judicial review. To qualify, all of the following condition must
be satisfied:11

1. The decision must be made by a public body, as a public law remedy, judicial review is only
available where the decision has been made by a public (rather than a private) body.

To understand this condition, there is case law –

In R v. Disciplinary Committee of the Jockey Club12, ex parte Aga Khan In this case, a horse
belonging to the Aga Khan was disqualified from a race by the Disciplinary Committee after
failing a drugs test. The Aga Khan sought judicial review of the Committee‘s decision. It was
held by the court that the Jockey Club was not a public body and, therefore, its decisions were
not subject to judicial review. The relationship between the Club and its members was a matter
for the private law.

Here necessary to mention that, Modern Writers have criticized Dicey‘s views on Rule of Law,
on the following grounds-

1) Absolute equality is Impossible.

2) Practically impossible to have equality

3) The executive enjoys vast discretionary powers

4) Special Tribunals administering special laws have become common feature of administration
in U.K.

a) Discretionary power is inevitable-

1) Dicey exclude discretionary power from his Rule of Law.

2) He insisted that administrative authorities should not be given wide discretionary power.

11
John Alder, Constitutional and Administrative Law, 42 (1994).
12
AIR 1979 SC 453

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3) He failed to distinguish arbitrary power from discretionary power.

As Wade rightly remarked-

If it is contrary to the Rule of Law that discretionary authority should be given to government
department or public officers, then the Rule of Law is inapplicable to modern constitution66.

In case, State of U.P. v. Johri Ma13i Supreme Court observed that, though discretionary powers
are not beyond the pale of judicial review the public authorities are given sufficient elbow space
for a proper exercise of discretion.

Administrative function deals with the nature of the powers of the administration and the way in
which this power is exercised, moreover the administrative powers generally looks into the
aspect like how the rules, regulations and byelaws are made by the subordinate law making
bodies and how that subordinate law making authorities are controlled, regulated and functioned.
But administrative function is not concerned with the content of that subordinate legislation.14

Administrative Law in India

The Parliament’s concern with delegated legislation antedates the Constitution, in 1953, of the
Committee on Subordinate Legislation. There are two specific provisions in the Rules of
Procedure, which are concerned with delegated legislation. Rule 88 (off the Rules of Procedure)
provides that a Bill involving proposals for the delegation of legislative power shall be
accompanied by a memorandum explaining such proposals and drawing attention to their scope
and stating whether they are of normal of exceptional character. Another rule provides that:

Each ‘regulation’, ‘rule’ ‘sub-rule’, ‘bye-law’, etc. framed in pursuance of the legislative
functions delegated by Parliament to a subordinate authority and which is I required to be laid
before the House (hereinafter referred to as ‘order’).

At the present time parliamentary control over’ delegated legislation is defective for two reasons
(i) Legislative powers are freely delegate -by Parliament without the members two house fully
13
AIR 2004 SC 3800.
14
U.P.D Kesari, lectures on Administrative Law, 15 (2005).

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realizing what is being done; and (ii) although many of the regulations made in pursuance of
those powers required to be laid down before both the Houses and in fact they are so laid, there is
no, automatic machinery for the effective scrutiny -m behalf of the Parliament as a whole and the
quantity-and complexity are such that it is no longer possible to rely on such scrutiny.15

There has been lack of uniformity in the provisions of Acts delegating legislative powers. The
following four types of provisions exists in the visions Acts:

i. The Central Government is empowered to make rules for the purposes of giving effect to
the provisions of an Act by notification in the official Gazette.
ii. ‘The Central Government is empowered to make rules by notification in the official
Gazettes and is required to lay them before the House, as soon as may be, after the
publication in the Gazette.
iii. The rules made by the Central Government are subject to such modifications as
Parliament may make after they are laid on the table.
iv. The rules made under an Act are required to be laid on the table of the House for a
specified period before of their final publication.

The Committee’s labour is bearing fruit. A large number of its recommendations have been
accepted. Its recommendation, made in its seventh Report, was given statutory shape in the
General Clauses Act, passed early in 1960, providing that all instruments of delegated legislation
should be laid before Parliament and that the State Legislatures should make similar laws, and
that there was no need to repeat the following formula m every Act authorising delegated
legislation.16

Every rule made under this section shall be laid as soon as may be after it is made, before each
House of Parliament, while it is in session, for a total period of thirty days which may be
comprised in one session or in two successive sessions and if, before the expiry of the session in
which it is so laid or the session immediately following both Houses agree in making any
modification in the rules or both Houses agree that the rule should not be made, the rule shall

15
M.P Singh, V.N Shukla’s Constitution of India, A-52 (2010).
16
Mark Bovens, ―Analyzing and Assessing Accountability: A Conceptual Framework‖, 13(4) Eur. L.J, 447-468, at
448 (2007).

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thereafter have effect only in such modified form or be of no effect, as the case may be; so
however, that any such modification annulment shall be without prejudice to the validity of
anything previously done under that rule.17

The Committee is doing a really fine job; its members are in the words of G.V. Mavalankar, the
late Speaker of the Lok Sabha, “the only protectors of the people against the `new despotism’
getting aggressive”. Again to quote him, “‘file usefulness of the Committee and its prestige can
be established only as time goes on and as the Committee functions dispassionately with a
judicial maid and moderation on non-party lines”. By denouncing certain features of delegated
legislation the Committee is gradually setting a norm to which delegated legislation should
scrupulously conform.18

Conclusion

So, as per Dicey's rule of law administrative law is a negation of rule of law; discretionary
powers are given to civil servants to advantage of few sections. Administrators get a privileged
status against ordinary citizens . inspite of above limitations ,administrative law has become an
integral part of the a ration structure of every country. Instead of treating administrative law as a
limitation, ways and means should be found to overcome these limitations -and achievements
objectives. Increase in social conscious among the citizens is a welcome step in this direction.
The solution to problems of administrative law lies in effective implementation of rule of law
and effective reduction in discretionary power of officials.

Bibliography
 M.P Singh, V.N Shukla’s Constitution of India
 C. K. Takwani, Lectures on Administrative Law, State Mutual Book & Periodical
Service,Limited, 1988
 M P Jain & S N Jain’s Principles of Administrative Law, Lexis Nexis; Seventh edition,
2017.

17
Christine N. Cimine, ―Principle of Non-Arbitrariness and lawlessness in the administration of welfare‖, Rutgers
Law Reviews 57:2, 452-529, at 471 (2005).
18
Chris Taylor, Constitutional and Administrative Law, 109 (2008)

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