Administrative law has become extremely crucial in the developed society since the relationship of the administrative authorities and the people has become complex. In order to regulate these complexities some law is necessary, which can help maintain regularity certainty and check misuse of powers vested in the administration. This increase in the spectrum of responsibilities ushered in an administrative age and an era of Administrative law. Administrative has been characterized as the most outstanding legal development of the 20th-century. The governments have evolved from being laisseze faire to parens patria. This development saw a similar trend in several parts of the world. In this article we will be discussing the evolution and development of administrative law in India, UK, USA and France
Development of administrative law in India
Administrative law in India can be traced back to ancient history times. The Maurya and the Gupta dynasties of Ancient India had centralised administrative system. Following this, came the Mughals who had somewhat similar administrative system. The kings in the anterior period of history were mostly concerned majorly about three things-
- Protecting the state from external aggression
- Maintaining law and order and order
- Collecting taxes.
With the arrival of the British in India, there was the advent of modern administrative law. Establishment of East India Company increased the government’s powers manifold. Several Acts, legislatures and statutes were brought by the British Parliament for regulating public safety, health, morality, transport and labour relations. The exercise of granting licences began with the State Carriage Act, 1861. The first public corporation came into existence under the Bombay Port Trust Act, 1879. Delegated legislation was accepted as legitimate power of the Executive in Northern India Canal and Drainage Act, 1873 and Opium Act, 1878.
In many statutes, provisions were made vis-a-vis granting of permits and licences and settlement of disputes by administrative authorities and tribunals. During the Second World War, the executive powers increased manifold by virtue of Defence of India Act. In addition to this, the government issued many orders and ordinances, covering several matters by way of Administrative instructions.
Post independence, India adopted a welfare state approach, which in turn increased state activities. With increase in power and activity of the Government and administrative authorities increased so did the need for ‘Rule of Law’ and ‘Judicial Review of State actions’.[i] The philosophy of a welfare state became specifically embodied in the Constitution of India. In the Constitution itself, provisions were made to secure to all citizens social, economic and political justice, equality of status and opportunity. The ownership and control of material resources of the society should be so distributed as best to sub-serve the common good.
For better administration and execution of laws at the ground level, procedures such as laying and delegated legislation were borrowed from contemporary regimes and customised to cater to the Indian needs. Also, if rules, regulations and orders passed by the administrative authorities were found to be beyond their legislative powers then such orders, rules and regulations were to be declared ultra-vires, unconstitutional, illegal and void. This flexibility of administrative law also marks an important feature of evolution of administrative law in India.
Development of administrative law in UK
In 1885 a British jurist A.V. Dicey rejected the whole concept of Administrative law. Due to this several legal thinkers suspended the notion of acknowledging the various statutory powers given to administrative authorities to form a separate branch of law. They disregarded the control exercised by such authorities to be anything distinct in itself. Hence, until 20th century administrative law was not given its due in England. It was only later that the concept came to be recognised.
In 1929, Lord Donoughmore Committee recommended for better publication and control of subordinate legislation. The legal maxim that the king can do no wrong, was abolished and the scope and extent of administrative law was expanded by the Crown Proceeding Act, 1947. It allowed initiation of civil proceedings against the Crown in a similar fashion to any ordinary private citizen.
The Tribunals and Inquiries Act, 1958 brought about better control and supervision of administrative decisions. Breen v Amalgamated Engineering Union[ii] was the first case wherein the existence of administrative law in England was recognised.
Development of administrative law in USA
The existence and growth of administrative law was ignored in the United States until it grew into being the fourth branch of Democracy. Also several legal jurists like Frank Goodnow and Ernst Freund had authored several books on administrative law which bolstered its position in the States.
Dr. Freund in his observation of the characteristics of American and English system found that American growth of administrative power didn’t encounter a temperamental opposition like it did in England. Rather it was checked by the distribution of powers under a federal system. Not until 19th century the Congress used its interstate commerce powers for regulatory purposes, with recourse into administration by commission.
Bulk of the legislations, at first, was administered without general supervision; the central-state administrative organisation was built slowly. As a result administrative control in the US was less bureaucratic and hence less centralised.[iii]
In the United States the rise of administrative law is contemporaneous with the need for governmental regulation of industry. Such a need led to the creation in 1887 of the Interstate Commerce Commission (ICC). In 1933 a special committee was appointed to determine how judicial control over administrative agencies could be exercised. Thereafter, the Administrative Procedure Act, 1946 was passed which provided for judicial control over administrative actions.
American administrative law developed from the operation of these different regulatory agencies, vested with significant powers to determine, by rule or by decision, private rights and obligations. As the regulations and orders promulgated by these organs impinged more and more upon the community and the bar that counseled it, the development of legal rules to ensure the subordination of agency activities to law became of concern to jurists. During the 1920s courses on administrative law began to be offered in law schools, the American Bar Association set up a special committee on the subject, and it came increasingly to occupy the attention of courts and lawyers.[iv]
Development of administrative law in France
The existence of an administrative authority (le droit administratif) in France, separate and distinct from the civil law, dealing, in the main, with the competence of the administrative authorities and watching over the relations amongst themselves and with private individuals, distinguishes fundamentally the administrative and legal system of France from that of Anglo-Saxon countries.
A study of the history of French administrative law during the last hundred years will show that its development has consisted principally in the working out of remedies for the protection of private individuals against the arbitrary and illegal conduct of the administrative authorities and in the extension of the control of the administrative courts (particularly the council of state) over the acts of these latter authorities. It is somewhat analogous to the power of American courts to refuse to enforce unconstitutional acts of the legislature.
This control has gone through a very interesting process of development. During the early years of the First Empire when the judicial courts were, in large measure, the servile instruments of Napoleon, they refused to entertain the plea of illegality as a bar to prosecution for the violation of all acts of the administrative authorities, from the lowest to the highest. In 1800, however, the court of cassation which three years before had held that the inferior judges had no right to refuse to enforce prefectural or municipal police ordinances on the ground of their illegality, changed its opinion and ruled that they were not bound to impose fines for the violation of such ordinances.
During the period of the Restoration when the judges became more independent in consequence of the adoption of the rule of non removability, they went further and held that they were not even bound to impose fines for the violation of ordinances issued by the King[v] Legality of nearly every administrative act for the violation of which a fine is prescribed, and illegality includes not merely nonconformity to the laws but also incompetence, vice of form, violation of the principle of equality of citizens, of personal liberty, liberty of conscience, inviolability of domicile, violation of property rights, etc.[vi]
Even so-called ordinances of public administration issued by the President of the Republic upon the advice of the council of state, which until 1907 could not be questioned either before the administrative or judicial courts, are now attackable before both classes of courts on the ground of illegality and during the world war, when the French Parliament delegated extraordinary ordinance power to the President, the judicial courts regularly entertained the exception of illegality against such ordinances. This power of the judicial courts to declare illegal the ordinances of the administrative authorities is, as Hauriou remarks, one of the “correctives” of the French administrative system which cannot be ignored. it offered a means of control over administrative conduct which was more frequently invoked than now, its importance having decreased in consequence of the remarkable extension of the control of the administrative courts, the effect of which has been to reduce correspondingly the control of the judicial courts.”[vii]
Conclusion
On analysing and comparing we understand that the countries displayed a similar trend with respect to development of administrative law. Whether it’s a common law country like India or a civil law country like France, the governments started out as police states which couldn’t care less for the citizens to social welfare nations. Administrative law grew leaps and bounds as functions of the state expanded and no law contrary to rule of law or principles of natural justice were tolerated.
Frequently Asked Questions
1. Has Administrative law become more stringent in India?
The law has become vast and covers a wide range of issues which might arise pertaining to the relationship between the government and its citizens. Since the Indian polity is a welfare state, laws are formulated accordingly. Hence it can’t be straightaway declared that the laws have become of more stringent nature now.
2. Are English and Indian Administrative laws similar?
British legal system has formed the basis of modern administrative law in India. Therefore both the legal systems share a fair amount of similarities in the form of rule of law, principles of natural justice (substantive aspects) and delegated legislation, laying, etc (procedural aspects).
3. Why do we need to compare the administrative laws of different countries?
Comparing the legal structure of administrative law of various countries helps realise the pros and cons of one’s own legal system and hence enables imbibe the good from others. That’s why comparison is necessary.
4. Does administrative law everywhere share a common basis?
The procedural aspects of various legal systems of various countries might differ however certain substantive aspects are common to all. For example, rule of law forms the basic idea around which administrative law is modelled in various countries.
Edited by Shikhar Shrivastava
Approved & Published – Sakshi Raje
Reference
[i] Upendra Baxi, Developments In Indian Administrative Law, Public Law In India, 132
[ii] [1971] 2 QB 175
[iii] Freund, Administrative Powers over Persons and Property, 578, 1928
[iv] Edward L. Metzler, The Growth and Development of Administrative Law, Marquette Law Review 19, 4 (1935)
[v] James W. Garner, French Administrative Law, Yale Law Journal, 33, 6, 1924
[vi] James W. Garner, French Administrative Law, Yale Law Journal, 33, 6, 1924
[vii] James W. Garner, French Administrative Law, Yale Law Journal, 33, 6, 1924
