A Guide To Administrative Law

Citizens derive their right of fair governance from the Government executives by virtue of the Administrative Law. Over legalistic view of administrative law, mixing it with components of criminal law or getting bogged down in its interpretations, or treating employment a right can lead to administrative problems. To ensure that people get the desired quality of public management, it is essential that we understand it well.
A Guide to Administrative Law
Source - Wikimedia Commons (https://commons.wikimedia.org/wiki/File%3APediment_courthouse%2C_Rome%2C_Italy.jpg)

What is Administrative Law ?

Administrative Law refers to the set of laws and rules that govern the actions of the Executive agencies of the government.

The Scope of Administrative Law

In most modern democratic states, the government consists of three pillars - the Legislature that makes the laws, the Executive that carries out the actual governance in accordance with the laws made by the legislature, and Judiciary that reviews all actions of the executive and decides whether the actions undertaken by them are as per law, apart from deciding disputes and taking decisions in case of allegation of a crime.

The Executive include

all Departments of the Government, Federal and State, as well as the independent agencies like Tribunals, Commissions and Regulatory Bodies.

The Departments are the actual executive agencies which carry out most of the governmental action. Overall, the executive carries out three kinds of functions. First is the Execution of day to day functioning of various regulatory, monitoring or service responsibilities entrusted to it; second pertains to Making Rules in certain matters where power for doing so is delegated to it by the legislature; and the third is Adjudication of disputes to the extent it is allowed by law. Independent Regulatory Bodies often indulge in all three, while Tribunals are mainly involved with the last one. Most Departments of the Government are usually preoccupied with first.

The Administrative Law deals with the laws and rules governing these actions of the Executive. In common law countries, a very large proportion of this law is derived from laws laid down by the Courts. In many countries, the legislature makes most of the laws, but even there, the Courts have a power of judicial review of administrative actions.

The Principles of Administrative Law

There are two primary sources of Administrative Law - first are the laws codified by the legislature and the second are the decisions of the courts deciding legal questions.

Judicial Review of administrative actions is the core of all administrative law. In cases where some executive agency, sometimes also referred to as a 'quasi-judicial' agency is delegated some power of adjudication, then its actions also come within the purview of judicial review. More importantly, this power of judicial review is often curtailed by the judiciary itself, on the ground of expediency and to avoid repetitive legal action.

When an action or decision making responsibility is assigned to an executive agency, its actions are reviewed by the judiciary only on certain grounds. In this way, judicial review differs from appeal. While in appeal, the correctness of the decision (usually of a lower court) is examined and decided upon, in case of judicial review the correctness of the executive action is judged only on a few parameters. These include:

  • Whether the executive action is ultra vires (against the basic scheme of law and rights)?
  • Whether the action is blatantly arbitrary and capricious under the U.S. Administrative Procedure Act ?
  • Whether the action is unfair and made with mala fide intentions to wrong or favor a party ?

The administrative law has evolved in


different common law countries with subtle variations. Under Canadian law, judicial review examines whether an act is "patently unreasonable"; under British law the courts examine whether it is "Wednesbury unreasonable" (term derived from a court case involving a party called Wednesbury), and Indian Supreme Court has accepted two additional concepts of "legitimate expectation" and "proportionality" as grounds for judicial review.

Rule Making Vs. Legislation

Though the executive agencies may be assigned powers of rule making it is different from the power of the enacting law by legislature.

According to section 551 of the U.S. Administrative Procedure Act,

Rule Making is "an agency process for formulating, amending, or repealing a rule."

A Rule in turn is "the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy."

This definition seriously restricts the scope of rules compared to the scope of legislation. Rules made beyond this scope can be nullified by the judiciary.

Adjudication Vs. Judicial Review

As per section 551 of the U.S. Administrative Procedure Act, Adjudication is "an agency process for the formulation of an order."

An Order in turn is "the whole or part of a final disposition ... of an agency in a matter other than rule making but including licensing."

Importance & Limitations of Administrative Law

Administrative law developed to ensure a balance between the expediency that can be achieved by providing autonomy to the executive agencies, and the arbitrariness that they may resort to if not controlled by the power of judicial review. Maintaining this fine balance is one of the greatest challenges of administrative law and its practice.

Excessive judicial interference in administrative matters can render the administrative machinery ineffective, while inflating the costs of administration that will have to be borne by the common citizen; hence it must be one of the endeavours of judiciary and legislation to let the executive remain an efficient organ. Yet, the rights of the citizens, the overall legal environment and the pre-requisite of objectivity and neutrality on the part of executive needs to be ensured by having a clear and substantive administrative law.
 



Please login to comment on this post.
There are no comments yet.
Our Existence Is Sustained By Natural Equilibriums
Advantages And Drawbacks Of Surplus Money