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Dicey on Administrative Law

By : brainykey   February 3, 2018

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.

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

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.

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.

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.

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

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.

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.

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,

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 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.

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:

  1. 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.
  2. ‘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.
  3. The rules made by the Central Government are subject to such modifications as Parliament may make after they are laid on the table.
  4. 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.

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 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.

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.

Conclusion

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.

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