Textbook On Administrative Law [1 ed.] 9351437051, 9789351437055

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Textbook on

Administrative Law

Yashomati'buo"n LLB, LLM, Ph.D Assistont Professor' of Law National Law School of India (Jiziuersity, Baizitilere

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f lntroduction to Adminisrative La'rnz

1.1

INTRODUCTION

the early parts of Administrative law as a bra.nch of study emerged in the state being and ;;;;F ";ntury. The idea of the state responsibitity The economic century. in the 20th accountable to the puoptu -iti" emerged rise to the given had the- earlier century m*""" ;il;$-;; people "t common the of affairs the principle of state nin-interference in andgreaterautonomytothepeopletodeterminetheircorrftieoflife.The -Jropo*rra"i that the role of state will be rninimal and laissez Jaire rnodel the state against confined to the mairrtenance of law and order, protecting citizens' But the foreign aggressions .|}a rairraicating disputes between the hardships to negative consequences of iaissez faire econorny soon caused policy market free the the cornmon people tha,t made people rea|ize that of well-being ensure and will not necessarily give rise to optimal wealth

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Introduction to Adrninisratiae Lazp

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all people. The profit rnaking goals of tlre la'issez faire economy caused in state responsibility had imposed additional responsibilities on these three members and specific hardship to a large section of the popul6,tion like children, women, poor and orgr,n" of lhe state. But the limited number of judiciary had imposed inherent old people who could not adequately fight for their interests in the unequal irrLtlorrrt duties of the legislature and the responsibilities. In additional the undertake world and were forced to face lot of hardships. Conflicts arose between the ii*lartion on these organs to of various performance the for responsible became have's and the have-nots, betrveen members of the different economic strata this co.rt.*t the executive like the factory owners and the workers. A realization came about in the welfare activities like establishing schools, hospitals and colleges, construction to perforrn minds of the educated people that the unregulated laissez faire policy was of rord" and other infrastructures etc. The executive was required judicial and the legislative of the in exclusion functions not conducive to the general well-being of society and required the positive state all the residuary intervention by the State. In addition, the rise .of the democratic principles functions. In the woids of Professor Wadebased on adult suffrage created new notions of State responsibility and the to protect the If rhe state is to care for its citizens from the cradle to the grave, state representatives were required to uphold the interests of the common employment, with provide thern to all stages, at them edrrcate to environment, people in their functioning. When people acquired the right to vote, they houses, medical services, pensions, and, in last resort, food, clothing, training, started making the political system respond tb their needs and the politicbl and shelter, it needs huge administrative apparatus. Relatiwely little can be parties and .their leaders \r/ere compelled to adopt pro-people.measures and Acts of Parliarnent. There are far too rnany problems done merely by passing -rnany ensure the well.being of the citizens. matters that cannot be decided in advance.2 of detail, and far too The 20th century further witnessed the mass destruction 9f human lives during the two World Wars and also the independence of a large number of 1.2 GROWTH OE EXECUTIVE FUNCTIONS-RESIDUARY colonized nations of Asia and Africa created a conscious global community FUNCTIONS responsible towards the welfare of the people and protection of their rights. The Universal Declaration of Human Rights (UDHR) recognized a set of In the case of In Re: Delhi Laus Act case3 the Supreme Court recognized civil, political, economic, social and cultural rights as part of core human that the Indian Constitution had broadly identified the separation of functions rights which are deemd inalienable for the purpose of promoting equality and betnu.een the three principle organs of the state - legislature, executive and development. The constitution of vast majority of these states incorporated judiciarl,. These principle organs were required to perforrn their essential these rights as fundamental .in their governance and essential towards "'functions as part of their constitutional responsibility' achieving their welfare goals. People expected their state to adopt welfare measures in the form of education, health, food, employment opportunities under the constitution of India as adopted on the 26th of January' 1950, the executive goverriment of the Union is vested in the President acting on etc. Notions of socio-econornic and political justice, rule of law and access the advice of the Ministers. A Pa,rliament is established to make laws and to justice became the norms of the da5r The consequence of all these a Supreme Court is established with the powers defined in different articles actions was the increasing functions of the State. From the goals of minimal of the Constitution. The executive legislative and judicial functions of the state intervention during the la'issez faire period to the ever increasing Government, which have to be discharged, were thus distributed but the responsibility of the state under the notions of a welfare state, 20rt century articles giving power to these bodies do not vest the legislative or judicial witnessed a major transformation in the functioning of the state. powers in these bodies expressly-' Traditionally there are three principle organs of the state - Legislature, Ro,m Jataaya Kapur a- state of Funjabs is the leading case dealing with Executive and Judiciary. These organs are entrusted with the performance of the scope and extent of a.drninistrative functions in constitutional India. A basic functions. The legislature is required to frame the policies and rnake the writ peiition under Article 32 of t]ne constitution was filed challenging the legislations for the welfare of the people. The primary task of the executive decision and the notifications issued by the Education Department (ED) is to implement and execute the laws whereas the judicial function involves interpretation of laws, adjudication of disputes and administration of justice. The executive function of implernenting the laws made by the legislature has 2. Wade and Forsyth, Administrative Larv, Oxford University Prcss, 10tb Ed. 2009' P- 4' 3. (1951) SCR 747. always been categorised as 'adrninistrative' functions generally.l The increase 1. Julius Stone, The Trventieth Centurv Administrative Explosion and After, Califomia Larv Review, Vol. 52, No. 3, (Aug., 196a), pp. 513-542, p. 513.

4. Id, Pa.ra 11. 5. AIR 1955 SC 549 : (1955) 2 SCR" 225

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of the Punja,b Governrnent as violative of the fundamental right of the petitioners to carry on their business of printing, publication and sale of school text books. After 1950 by several resolutions the government had introduced state monopoly in the publication of text books. The entire act of publishing, printing and selling of school text books !!-ere monopolized by the Government and private publishers were ousted from the business. The petitioners challenged these notifications on three fold ground.s ofFirstly the concept of modern state function enable the state to undertake any trade or business related activity, secondly whether the executive can undertake such activities without any specific legislative sanction, and thirdly whether the state can deprive the fundamental right of an individual without authority of law. The Court defining the functions of a modern welfare state recognized that the functions of a modern state cannot be confined to mere police functions like collection of taxes, maintenance of law and order and protection of the state against external and internal aggression. A modern State i,s certainly eapected to engage in aII a,ctiuit,ies necessary for the prornot,ion of the social and econontic tnelfare of the cornmunity. Thus undertaking of a business or cornrnercial activity by the state was held permissible under the multiplicity of fundtions which a welfare state is required to perform. Defining the scope of executive functions and responsibilities in the context of separation of power doctrine the Court observedIt may not be

possible to frame an exhaustive definition of what executive function means and implies. Ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away. The Indi".r__go=$!!g!&t_hgt not indged recognized doctrine of separation of powers in its ab-oiuGTfiidity but the functions ,the of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assurnption, by one organ or part of the State, of functions that essentially belong to another. The executive indeed can exercise the powers of departmental or subordinate legislation when such powers are delegated to it by the legislature. It can also, when so empowered, exercise judicial functions in a limited way. The executive Government, however, can never go against the provisions of the Constitution or of any law. This is clear from the provisions of Article 154 of the Constitution but, as we have already stated, it does not follow frorn this that in order to enable the executive to function there rnust be a law already in existence and that the powers of executive are limited rnerely to the carrying out of these laws.

Thus the scope of the executive function is described as residuary in nature. Once the essential functions have been performed by the legislature and judiciary, the executive can be conferred with the power to make

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judicial functions in incidental or subordinate legislations as well as perform to the provisions act contrary never can the executive but rnanner, a limited State Government of the the role Justifying a statute. or Constitution the of it was emphasized that in o, uritten Constitution like ours the erecutiae power may be such as is giuen to the erecutiue or 'is itnplied, ancillarg or inherent. It tnust include all powers that mag be needed to carry out into effect the airns and objects of the Constituti,on. It nt'ust n1'ean n'Lore than rnerely erecuting the laws. It was further clarified that an act uould be within the erecutiae pouer. of the state if it is not an act uthich has been assigned. by the Constitution of India to other authorities or bodies and, is not contrary to the prou'isions of any lau and d'oes not encroach ' upon the legal rights of any. rrlen-Lber of the public'"

Differentiating between the Australian constitution and the Indian Constitution as regards the scope of executive powers' it was highlighted that the executive power in Australia was limited to the execution and maintenance of the Constitution and laws of the countryT whereas Articles 73 and 162 of the Indian Constitution dealing with the executive powers of the union and the States respectively categorically lay down that the executive power is co-extensive with the powers of the respective legislatures to.make laws. Hence the executive authority of the Union Government is in respect of matters enurnerated in List I. of the Seventh Schedule whereas those of the State Government is restricted to areas specified in List II. It was further emphasized that it was not riecessary under the provisions for the legislatures to make prior legislations for the purpose of.t^he Executive to act in respect of those areas. On the other hand the language of Article 162 of the Ind,ian constitution clearly ind.icates that the pouers of the State erecut'iae to ertend to rno,tters upon uh'ich the state leg'islature ,i.s competent to legislate and are not confined to rnatters ouer urhich Ieg,islation has been passed already. The same princi'ple underlies Article 73 of the Indian Constitution.s Highlighting the important role of the executive in formulating policies and enacting legislations in a parliamentary form of democracy the Court observed-

The limits within r*-hich the executive Government can function under the Indian Constitution can be ascertained without much difficulty by reference to 6. Ibid, Para 13. ?. Australian Constitution Section 61 - The executive power of the Commonwealth is vested in the Queen a,nd is exercised by the Governor-General as the Queen's representative and extends to the execution and maintenance of the Constitution and of the laws of the C,ommonn'ealth-

8. Supra note 5, Para

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the form of the executive which our Constitution has set up. Our Constitution, though federal in its structure, is modelled on the British Parliamentary system where the executive is deemed to have the primary responsibility for the formulation of governmental policy and its transmission into law though the condition precedent to the exercise of this responsibility is its retaining the confidence of the legislatiwe branch of the State. The executive function comprises both the determination of the policy as well as carrying it into execution. This evidently includes the initiation of legislation, the rnaintenance of order, the promotion of social and economic welfare, the direction of foreign policy, in fact the carrying on or supervision of the general administration of the State.

In India, as in England, the executive has to act subject to the control of the legislature; but in what way is this control exercised by the legislature? Under Article 53(1) of our Constitution, the executive power of the Union is vested in the President but under Article 75 there is to be a Council of Ministers with the Prime N{inister at the head to aid and advise the President in the exercise of his functions. Tlhg_plgglglq;i has thus been made a formal or constitutional head of the executive and the real executive powers are vested in the Ministers or the Cgllnet. fh. 6"-.-pr".'i"ions obtain in regard to the Go.rernmeff;fTTffi;l-tl; Governor or the Rajpramukh, as the case may be, occupies the position of the head of the executive in the State but it is virtually the Council of Ministers in each State that carries on the executive Government. In the Indian Constitution, therefore, we ha,ve the same system of parliamentary executive as in England and the Council of Ministers consisting, as it does, of the members of the legislature is, ....Iike the British Ca.binet, "LhypMhich joins, a buckle which fastens the legislative part of the State to the executive part"- The Cabinet enjoying, as it does, a majority in the legislature concentrates in itself the virtual control of both legislative and executive functions; and as the Ministers constituting the Cabinet are presumably agreed on fundamentals and act on the principle of collective responsibility, the most important questions of policy are all forrnulated by thern.

Thus when the executive government formulates a particular policy in furtherance of their welfare activities it is not necessary to have a prior legislation in place. Subsequent parliamentary approval through authorization of expenditures rvill be deemed sufficlent. However specific legislation rnay be necessary if the Gouernrnent require certein pouers in addi.tion to uhat they possess under ordinaru law in ord,er to co,rry on the part'icular trade or business- For example specific legislation is required if the government action will give rise to encroachment of private rights. In this case no fundarnental right of the petitioner to carry on their trade or commerce was infringed by state action, hence no legislation was necessary. Ram, Jatnaya Kapoor stands for the recognition of the growing administrative power in India which is indispensable in fulfilling the goals of a modern welfare state having multifarious obligations.

bodies have been The Executive body and the various administrative welfare obligations various the out carrying of .oirrr"t"a with the responsibility q'elfare philosophy the has adopted India of Constitution The ll-ifr":*"*. goals of the to attain and through its various provisions it has attempted secured ha's lJo-."onJ*ic and political justice. Part III of the Constitution various the through l'rrrUrrr, liberty, political justice and religious autonomy the attain to State the directed has irirrar*",.trl rights whereas Part IV justice the citizens that ensuring by economic ;igh", objectives of social and rn'ork, decent standard have adequate means of livelihood, equal pay for equal

and legal aid, of living, proper nutritional standards, access to social security purpose of carrying the goals. For such many and environrnent p."t""ti", of 111a11moth a create to necessary became it responsibilities a.dditional lrr, tfr"r. A large resources' administration involving huge manpowel and financial to were created officers number of ministerial departments and bureaucratic Constitution Indian The perform the various state functions and obligations. has created and recognized, a number of administrative bodies such as Election commission (Article 324), Public service commission (Article 315), All India services (Article 312), Finance commission (Article280), Inters*r. w"rur Dispute Authority (Article 262), Inter-state council (Article 263), Administrative Tribunals (Article 323A), National cornmission for scrreautea castes (Article 338) and National commission for scheduled Tlibes (Article 33SA). These administrative authorities were granted lot of discretionary powers to make subordinate rules, decide quasi-judicial issues and to take administrative actions. In addition, the concept of rninisterial responsibility backed by huge bureaucracy, laid the foundations for a rnassive administration. It was realised that mere dependency on the legislature for making laws on each and every issue or approaching the judiciary for resolving all disputes arising in the course of implementation of the laws was detrimental in the running of an efficient administrative systern. Thus the modern day ad.rninistration became the repository of huge authority and power.

This Power corrupts and, absolute power corrupts absolutely by Edward Coke is of profound importance in the grorvth of administrative law. With the increase in the functions and powers of the administration it was felt necessary that there should be an adequate check on the workings of the administration so as to prevent abuse of powers which will be detrirnental to the welfare of the people. It is essential that the various administrative bodies should carry out their functions and responsibilities in accordance with the constitutional goals and provisions' Adequate control should be exercised over the administration by rneans of observation made

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political checks through the Parliament and legal control through the process

of judicial review. Ttre adrninistrative bodies are required to adhere to a set of identified norms and rules in performance of their duties so as to prevent abuse of powers. arbitrariness, maladministration, non-performance of duties and breach of legal rights of the citizens. These norms and rules . have been developed by the judiciary and are known as the principles of administrative law. If discretionary power is to be tolerable, it must be kept under two kinds of control: political control through the Parliament, and legal control through the courts. Equally there must be control over the boundaries of legal power, beyond which there is normally no discretion.e

1.4

DEFINING ADMINI.STRATIVE LAW

by adrnirristrative po*..". It sets forth the powers that may be exercised powers, and those of exercise governing the principles Ig".r.i"", lays down the action. administrative by aggrieved those to remedies legal piovides This definition divides administrative law into three parts: (1) the powers by law vested in adrninistrative agencies; (2) the requirements irnposed unlawful against upon the exercise of those powers; and (3) the remedies airninistrative action.lr of Professor I.P. Massey has defined Administrative Law as that "branch administrative powers of public law which deals with the organisation and and rules by principles prescribes and agencies q,rusiadministrative ana to individual relation in reviewed which an official action is reached and bricks of foundational four the describes liberty and freedom".r2 He further administrative law as1. Checking abuse or rerouting of administrative power; ' 2. Ensuring citizens an impartial determination of their disputes by

Administrative law is a judge-made law and comprises of various principles of state accountability and good governance q'hich have been developed through different case laws. The essence of administrative law is to ensure that the ' officials; multitude of functions which are performed by the different administrative authorities are in accordance with established legal principles of fairness and 3. Protecting citizens from unauthorised encroachment on their rights accountability and are within the fold of legality and propriety. Administrative and interests; law aims to prevent abuse of administrativb pbwers and prescribes for remedial Making those who exercise public power accountable to the people. 4. measures in case of breach of individual rights, liberties and privileges. Professor M.P. Jain has described the scope, content and ambit of In light of the multifarious nature of administrative functions and the Administrative Law asconstantly evolving norrns of accountability it. has been difflqqlt to lay down a single comprehensive definition of adrninistrative law. Different scholars Administrative Law deals with the structure' powers and functions of the procedures have described the nature and scope of adrnirristrative law based on the organs of administration; the limits of their powers; the methods and fc;llo*ed by thern in exercising their powers and functions; the rnethods by desired objectives. Some of the relevant definitions arewhich their powers are controlled including the legal remedies available to a Sir Williarn Wade and Professor Christopher Forsyth in their book person against ttr.* *t." his rights .r. i"ofri.tg.Jby their operation.l3 Adrnini,stratiue Law has defined administrative law as the law relating to ttne control of goaernmental pouter.lo It is further described as "the primary This statement has four limbs. purpose of administrative law, therefore, is to keep the powers of government (a) The first limb deals with the composition and powers of organs of within their legal bounds, so as to protect the citizen against their abuse.... administration. It is also the concern of administrative las' to see that public authorities (b) The second l.imb refers to the limits on the powers of administrative can be compelled to perform their duties if they make default"authorities. Professor Bernard Schwartz has defined the scope of Administrative larn' (c) The third limb refers to the procedures used in exercising those in the following wordspowers.

Administrative law is that branch of the law that controls the administrative operations of government. Its primary purpose is to keep governmental powers 9. Wade and Forslth, Administrative Law, Oxford University Press, 10tr'Ed. ro. Id.

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(d) The fourth limb refers to the control of the Administration through judicial and other means. 1l- B*"-d S.h-'".trJdministrative Law, Aspen Publishers, 3'd Ed' 1991' 12- IP Massey, Administrative Law' Eastern Book Company, 8"" Ed' 2012' fg. I\.Ip Jain & SN Jain, Principles of Administrative Law, LexisNexis, 6ih Ed.

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An analysis of these various descriptions of administrative law clearly indicates that the primary objective is to ensure that the powers of the government are exercised in accordance with constitutional and legal principles so that certain lirnitations can be imposed on their functions for the purpose of preventing unfettered or arbitrary exercise of pow-ers and ensuring that the rights of the citizens are protected from unauthorize.d administrative encroachment. Thus administrative law can be described as a body of principles dealing with the manner of exercise of governrnental powers ald duties and protecting citizen's rights.

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LINKING THE PRINCIPLES OF ADMINISTRATIVE LAW TO THE CONCEPT OF GOOD GOVERNANCE

The ernergence of Administrative law as a branch of public law was a phenomenon of the early 20th century. The essential norms of administrative law impose a negative obligation on the power of the various administrative authorities requiring that in the course of their functioning they should not rnisuse or abuse their powers and violate the rights of the common people. It fundamentally deals with limiting and regulating the powers of the administrative authorities. This theoretical understanding of .administrative Iaw did not impose any positive obligation on the state authorities to ensure that the working of the administration is towards achieving the welfare of

the people. The goals of proper and effective governance were not reflected in the definitional scope of administrative law. The modern day understanding of the principles of good governance attempts to bridge that gap and introduces a positive obligation on the administration. Santosh Hegde J. had recently observed that Good gouernarr.ce 'is our fund,amental rightra but the origin of the notions of good governance can be traced to ancient Indian literature. The popular ancient Indian text of Kautilya's Arthashast"ols had ernphasized that the traits of a king of a well governed State have been described as - "irl the happ'iness of his subjects l'ies his happiness, i,n thei,r welfare his welfare, uhateuer pleases h'imself, he does not consider o,s good, but uhateaer pleases his subjects he considers as good" - The concept of good governance in ancient rndian implied that the immense power given to the king should be used for the common interest and welfare of the people- Kautilya's perception of the state was similar to a modern welfare state wherein the primary duty of the king was to protect his vulnerable and weak subjects like children, old people, women, disabled 14. Santosh Hegde delivered the 12"nNani Palkhivala'Memorial Lecture on the topic'Is Good Governance a Right of a Citizen in Democracy', The Hindu, September 3, 2O1S. 15. Arthashastra-TYeatise on the art of Government and Administration.

justice. ma,intain la,w and order as well as ensure proper adrninistration of in the ancient Indian system the bureaucratic accountability was considered an essential part of good governance and it was the responsibility of the chief officer of ea,ch state department to look after the performance of each person under their charge' In modern day the goal of administration is to ensure ffLore goaernarlce and, Iess gouernrnenl by adhering to the norms of good governance. It is part of the present day demand that to bring in reforrns in the traditional administrative structure and replacing the mammoth adrninistrative structure of the last century with a lean but robust administration which will function on t|e ideals of good governance. The international comrnunity, under the auspices of the United Nations has taken a lead in promoting the goals of lood governance as a mechanism to ensure the existence of stable, transparent and efficient state functioning' The term ,good. governance' assumed significance when the u/olld , Bank _and the Internationa.l Monetary Fund as part of their structural ad]-ustment policy il"a. "afterence to the principles of good' governance as a condition for providing financial aid to nations. The underlying rationale is that the applicability of good governance principles can help to combat corruption, nepotism, bureaucracy, mismanagement by means of transparency, accountability and proper procedules. The UN Economic and is Social Commission for Asia. and-lbe--qgcific in their leadin[@-What governance' good of eharacteristics Go These characteristics are - (i) Participatory, (ii) Consensus oriented, (iii) Accountable, (iv) Transparent, (v) Responsive. (vi) Effective and Efficient, (vii) trquitable and Incllsive, and (viii) Rule of Larv. The objective behind application of these principles in the day to day governance is to make running of administration more democratic and accountable' and ensure the participation of the common people in the task policy formulation. In addition it is expected to minimize corruption and ensure inclusion of the minorities and the vulnerable sections into the decision making process and consequently rnake the administration more responsive to the present and future needs of the society. The term ,governance' refers to the process of decision-rnaking and,-_the process by uhich d,ecis'ions are in-Lplemented, (or not implem,ented,).r7 It lncludes both formal and informal actors who are involved in the decision 16. S.S. Ali, Kautilya and the Concept of Good Governance, The Indian Journal of Political Science, Vol. 67, No. 2 (Apr - June, 2006), pp- 375 - 38O. LV UN Economic and Social Commission for Asia and thc Pacific, What is Good Gouent'ance? \-/ at http: / /wwv. unescap.org/sites/default/fi les/good-governance. pdf.

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making process as well as in the implementation of the decisions made and the different formal and inforrnal structures which have been created to arrive at and implement the decision.r8 In present day governance, the government is an important functionary along with other institutions and actors like media, lobbyists, international donors, multi-national corporations, financial institutions, political parties, research institutes, religious and caste leaders, NGOs etc. who play significant role in the decision-making process or in influencing such processes. In addition to formal, process of policy making through the Parliament, in every modern society these actors participates and acts as advisors through informal processes. In such environment there is every possibility that government policy making will lack transparency and public welfare objective, and be vitiated by the motives of the several interest groups, including corrupt objectives. In addition, there are traditional barriers to the emergence of Good Governance in society. The rigid structure of bureaucracy and the attitudinal problems of civil servants often act as impregnable to all reform measures. The Second Administrative Reforrns Commission has described the bureaucracy as roooden, inflerible, self-perpetuating and inward, looking. Rigid and formalistic procedural rules create obstacles for citizens' to access goverument institutions and thereby promoting corruption and red tapism. Lack of adequate administrative grievance redressal system poses serious difficulty in implementation of citizens' rights and timely enforcement of essential service. All these factors act as barriers in creating a citizen-centric and accountable administration. In these circumstances compliance with the principles of good governance becomes essential in creating an accountable, corruption-free, participatory and citizen-centric administration.

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CHARACTERISTIC FEATURE OF THE EIGHT PRINCIPLES OF GOOD GOVERNANCE ACCORDING TO THE UNITED NATIONSl9

1. Participation (a) Both men and worren should participate. (b) Pirticipation can be direct or indirectly through legitimate intermediate institutions or representatives. (c) Concerns of the vulnerable sections of the society should be taken

into consideration. (d) Freedom ofspeech and expression and the right to form organizations and associations should be respected. 18. Supra note 17. 19. Id.

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2. TransParencY

(a) Decisions and their enforcements should be in accordance

with rules

and regula,tions' (b) Information should be freely available and directly a.ccessible by all those *'ho are likely to be affected by it' (.) Information should be provided in easily understandable forrns. 3. Rule of Law (a) Governance should be prescribed within a fair legal framework which is enforced imPartiallY. (b) Protection of the human rights as well as the rights of the minorities. (c) Enforcement of laws through independent judiciary and an impartial

and incorruPtible Police force. 4.

ResPonsiveness

(a) Decisions and their implementations should be within a reasonable framework. 5. Consensus oriented (a) Mediation between the different interest groups in society should be

undertaken to reach a brciad consensus about 'what is in the bes{ interest of the whole community and how this can be achieved.'. (b) Identification of broad and long-term goals based on principles of sustainable human develoPment. (c) Preparing a proper plan of action for achieving the goals of such develoPment-

6. Equity and Inclusiveness

members of the society should feel that they have a stake in the develoPmental Process(b) No member or community should be excluded from the mainstream of society. (c) Adequate opportunities for all sections of the society, including the most vulnerable sections to improve and maintain their well(a)

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7. Effectiveness and EfficiencY (a) The state activities should work towards meeting the needs of the society by making the best use of resources at their disposal. (b) The concept of efficiency refers to sustainable use of natural resources and the protection of the environment-

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Accountability

(iii) Equitv demanding

":1T:,1:. Efficiency by speedy and effective delivery and (iv) "*,?,t1,::Yt:,":*'jJt:1i":$:;\1'il"rt::},I

All formal and inforrnal state actors like governmental institutions, * :^ffiil o"" of Informa,tion and Communication Technologies' private sectors, civil society groups must be accountable to thet *;mandate to revamtr th.e mandate,1,1""1il-,:1t',lt::: a^^^-,t ARC AR(l was set up with the fn" S""orra pubfic and to their institutionsl stakeholdeN. i,,t" e,"".t;"", responsioe, occountable, sustai.nable and rt "r:fi,;,;;; oJ sooernnent " in Jor sbould cointry at a teaek ol sooernnent .rt b€ T#H;-"ii^t"t tn" countru (c) Accoutrtabirity Accourtabirity of aD orsanization or en institution h, tne tr;i';;;;;;;,*i" for ior principles p nciples law "t administrative to u and €dministratil€ *r'" de likely cJnstitutional towar& thos; menber" oitl" coD.6titutional ft{"iffiri["li.--.. :o:;;r#;";; ; {I'

"n*t"a by their decisions and actions."o"i"ty making governance citizen-centric(d) Accountability is interlinked with transparency. ard the rule of 6) Conrpli"o* with Rule of Law law. ,i,i ,"oi* sovemment institutions vibra.Et, responsive and accountablc " t"-n"ar citizeD needs The notior of sood governa&e is d ideal {hich. iE r€ry difficult t achieve in t tality by a nation. Very fw stat€s in the world have come to selucg n-.-r'-tizarion of g(N€rnment sow€rnment se! Oii) ^.:\ D€centralization close adoptina and a-dapting their mode of governance in accords.nce vith G9 Transparetrcv th€ core pri;ipbs or eooa sw€rna-c€ but €fft,rts should be every coutry io work ;wands a"hie;ins the chalacter of a model state by restructuins (v) civil sqvi:es Reforlns (vi) Ethics in Covqnance thek admidsira.tioh ba.sed on the above specified principles.

1.7

EMERGENCE OF CITIZEN.CENTRIC ADMINISTRATION

On a day to day basis a citizen is less concerned with politics and governance of the state. The'prirnary involvement of the citizens with the state happens in relation timely access to various government services such as passport, LPG connection, rati,on card, land documents, proper medical services etc. But unfortunately in traditional' administrative and. governance studies citizens have conferred a very marginal and minimal role. Modern studies have tried to confer a more prominent role to citizens because of the conscious realization that the ultimate beneficiary of all state activities is the citizen. Hence the recent concept of citizen-centric administration demands that modern administration should place citizens at the center of all administrative functions. Thus the primary objective of principles of good governance is to promote citizen centric administration through the principles of transparency' efficiency, equity and stability. The fundamental goal of a constitutionally governed state is to promote the welfare of all its citizens and the Indian Constitution has tried to promote socio-economic and political justice for all the citizens. According to Second Administrative Reforms Commission (ARC) the concepts of good gouernance o,nd citi'zen centric administration are 'i,ntimatelg connected. The four pillars of the concept of good governance are striving to achieve a pro-people model of governance through the values of - (i) Ethos implying service to the citizen; (ii) Ethics referring to character goals of administrative officers towards honesty integrity and transparency;

(vii) Process Reforms of the quality of Governance lvlii Periodic and independent evaluation necessary for The ARc has further laid. down the. essential pre-requisites governance good garb of achieving cTtizen centric administration within the a.s-

(a) Sound legal frarnework (b)Robustinstitutionalmechanismforproperimplementationoflawsand their effective functioning' (c)Competentpersonnelstaffingtheseinstitutions;andsoundpersonnel .

management Policies

(d) Right policies for decentralization, delegation and accountability' CONCLUSION

The principles of Administrative Law, Good Governance and citizen-centric other because administration are inter-connected and intertwined with each wherein the state accountable an of their common objective of creating through enforced and protected are people rights and liberties Jf .o*-o., process' legal structured and identified recognized legal institutions by

Constitutional Foundations of Administrative Larv

2.1

INTRODUCTION

The constitution is the grundnorm of India. It desgribes the primary down organs of the State - Legislature, Executive and Judiciary a'd lays also and responsibilities and functions powers, their structure, compositio-n, highlights It organs. core thcse between describes the inter-relationship the relationship and responsibilities betrveen the state and the citizens by prescribing the different fundamental riglrts, duties arrd the directive principles of state policy. The Constitution describes fundarnental norms for the functioning of state based institutions on the defined aspirations of the

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people. It also deals with other issues like the federal structure of the state, 2.3 RULE OF LAW liability of the state, conduct of elections etc. In addition, the concept of principles of constitutional law and is constitutional law includes various principles like rule of law, separation of Rule of Law is one of the cardinal for the growth of administrative la'w' stone io U" a foundational power, independence of the judiciary and judicial review, essential functions il;J -orir"tof" foundation of a civilized society and the is law that implies theory and basic structure doctrine. i"i. Lrr"t b" done in accordance rvith lan'. It irnplies that the law is 2.2 LINKING CONSTITUTIONAL LAW AND ADMINISTRATIVE LAW ""l,"'"* supreme.Eaeryone,uhetherind'iuid,ualorcollectiuely,isunquestionablg he rnay be' houeuer hig-h he i"',hg under the suprernacg of lau' Wh'oeaer Administrative law is an offshoot of constitutional law and is a branch of ir",*a", the lau. Ni rnatter how pouerful he is and hou rich he rnay be." public law. It deals with the executive wing of the state and is involved ifr" lo...ot of Rule of Law is not of recent origin and was in application with the conduct and performance of the core functions of execution fromtimeimrnemorial'Inancientlnd'ia'tlrengli-onofDhartnowasbased been and implementation of legislations and legislative policies, and conducting on the concept of abidance to one's own duty. T]he terfrzffiThas expected one's to refers intrinsically which duly and governing the administration. Administrative law does not deal with unrlerstood as law based the organizational structure and functional description of the various outigation and responsibility tgwards the members of the society' The dharma administrative departments of the state. The core purpose of the law is to of a ruler was to protect the weak and ensure peace and prosperity in society' describe the nature of the administrative functions, manner of performance AristotleinBooklVofhisfu]iticshadrecognizedlawasthefoundationof +member of these functions by the administrative officers and to prescribe the society. t aw rs a oody of ,rrffihich are to be followed by every .other and magistrates duties, official procedures of administrative accountability so a.s to prevent arbitrariness of the society. In periormance of their Sir law. with in accorda,nce act to and maladministration. The fundamental principles of administrative law officers in ancient Greece were required that asserted had concept the of originator is derived from different constitutional law principles such as rule of law, C"X", ,|".,-odurn day separation of power; sovereignty of the Constitution, independence of the -pJ*"ta thesupremacyotf,nelawshould.prevailovertheExecutive_Kingisunder judiciary, protection of the fundamental rights of the citizens etc. The no *i,n, but und'er God' and' the law' In Latin the principle is described as et lege-'3 power of judicial review of administrative actions is also derived from the quod, rer non d'ebet esse sub homine, sed' sub deo law' of term the 'rule Constitutiotr.r It is the responsibility of the judiciary to ensure that the of Discussing on the meaning lt"e*:-, C""ttt"tt administration complies with constitutional norms and do not encroach upon has differeniiated between various phrases of 'a rule of law', 'the rule ot'. The phrase a rule the rights of the people. With the growing involvernent of the administration Iaw'. 'rule by law', 'rule under lawi and ''ul"-fla*''4 in majority of the state activities, it has been deemed necessary to study oi fr* ,.f;; ,"- anf-rule oT .otrd,r"t which is binding on the citizens or on the functioning of the administration through the independent branch of the public officials. Even in a tyrannical society citizens would be subjected which study of adrninistrative law. to and regulated through la*s. unlike the phrase 'the rule of law' is-no there officials, public The objective of various constitutional law principles like rule of law, governs and lirnits the f,owers and actions of aII of 'a interpretation the by class separation of powers, judicial review etc. is to establish a responsible and inherent limit to the ptwer of the ruling under and 'rule law' by between 'rule accountable administrative machinery in the governance of the state. Similarly rule of law'. Similarly differentiating wherein the aim and objective of Administrative Law is to control governmental Iaw,, the former is particularly applicable in a totalita,rian state curbing and rule tyrannical enforcing for power and prevent all forms of maladministration. Historically the principles Iaws are used as an instrurnent concept the whereas law by rule through of Rule oT Law and Separation of Powers were deemed detrimental to the individual rights and freedoms bound by growth of Adrninistrative Law, but subsequently these constitutional principles of rule under law emphasises that public officials are themselves became the foundations for the growth of administrative law in the common laws.Theprincipleof.',leoflawappliestheconceptofruleunderthelaw law countries. Today most administrative law principles developed by the which is the essential foundation of li'berty'

judiciary are premised on the doctrine of rule of law and other constitutional law principles. 1. Articles 32 and 226 of t}re Indian Constitution

u' Ashok Khot (2006) 5 SCC 1' Thiru'mulpad' u' Ashok Khot (2006) 5 SCC 1' Cod'auannan T.N. quoted in As 3. and Absolute Sovereignty, rJniversity of Pennsylvania Law 4- Arthur L. Goodhart, The Rule of Law Review, Vol. 1O6' No' 7, (Mav' 1958), pp 94+963'

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Eminent British jurist and constitutional law theorist, Professor AV. Dicey 'highlighted the importance of Rule of Law-

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International Cominunity had emphasised that the idea of rule of law was r. a feature of the 'highly civilized nations' characterized by first a countrg i. that has a representatiue .fornl of gouernrnent; second, a country where ,: indiuidual li.bertg ind freedorn are protected, by law; and third uhere there are bounds aA@6 what the' joiernment can d,o to an ind,iai.d.ual. Of these three cf,Gacteristics it is the last one which is considered as most essential for the application of rule of law and the other two conditions facilitate in its irnplementation. In the words of Goodhart "These bounds and lim'its are ntarked by the control tohi,ch is ererc'ised ouer the public officers of the Statd by rneans of laut- It is this uhich consti.tutes the rule of la,u or to use a rnore accurate phrase, goaernffLent under Iaw...A consti,tuti.on rrlay conta,in a nt.ost elaborate bill of ri,ghts, but if its terrns can be di,sre.garded at uill by the publi.c officers then these proaisions will be of little effect"-G Accordingly every organ of the State is required to abide by rule of law by imposing or adhering to certain checks and limits. The legislative power is often regulated by the procedural norms of rule-making as u'ell as the substantive provisions of the Constitution. The executive power is restricted to the implementation of the laws made by the Parliament. The exercise of discretionary power by the adrninistrative officers is bound by the

DiceY

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(ii)Nopersonshouldbemadetosufferinbodyordeprivedofhisproperty '--' for a breach of law established in the ordinary lega.I manner "*""pa before the ordinary courts of the land; and traditions of (iii) The rights of the people must flow from the custorns of justice. administration the in courts the the people .."ogrrir"d by the political experiences Dicey had advocated these propositions based on m'. In itr n.tgia-ra nufe of f"* f" tftt fo"na absolute enjoys and bodv pillir.merrtG-i[e raw-making highest ,"rr"io the parliament and there was no inherent sorlreignty. AII laws were createJ by the Parliament' AII executive powers of power limitation to the law-rnaking

*.."r.qrrl.edtobeexercised'inaccordancewithlawsoftheParliament' Tlreadministrativeofficers\^,ererequiredtoactinaccordancewiththe and fancies' There Parliamentary laws and not act on their individual whirns that every citizen so should be unanimity in the application of' the Iaws laws' Individual of set of the country are equally got"t""a by the same officers wo*ld ad'rinistratiwe by interpretation i' the applicatfn of the laws laws of the the by governed being of gi.re ii". to unpreclictu.LiUty and instead individual by interpreted as laws by governed Parliament, citizens *o,rld be in the power discretionary of absence for officers. Hence Dicey advocated harrds of the governmental officers'

under the common law system the rights and liabilities of the citizens createdbythelawsmadeuytt'.legisla,ture,implementedbytheadministeredis There officers and are determined by the judiciary in case of disputes' are

onlyonesinglehierarchyofcourtsinEnglandwhichinterpretsthelawsand as \\"ell including administrative issues. All "#;;;; all disputes, ttuore to be t'jed--bvjhe;ainaD''"Y1!" ;f;;'

determines

5. A.V. Dicey, Introduction to the Study of the Las' of the Constitution, !0"' Ed. 6. Supra note 4 at p. 946.

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doctrirre of rule of law based orr the following Prof. Dicey conceptua,lized the three ProPosltronshands of the governmental (i) Absence of discretionary power in the officials;

2.3.1

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"odoo.*"offa,irprocedure.Theexecutiveisa,ccounta,bletothePa,rliarnent foritsactionandis-alsosubjecttojudicialreview.Thejudiciaryhasalso powers such as upholding n=nb3r of checks o' the exercise of their il*J; i1 accordance with the disputes values' deciding constitutional prrncrples and precedents, established to adhering a validly enacted statute-, ;;;;; "fwith the norms of procedural fairness and exercising judicial ;;;;tt l-i".tutiott ra'tionally and wisely'

equality, or the universal subjection of all classes to one law administered by the ordinary courts, has been pushed to its utmost limit. \A/ith us every official, from Prime N{inister down to a constable or a colleitor of taxes, is under the same responsibility for every act done with legal justification as any other citizen. The reports abound with cases in which officials have been brought before the courts, and made, in their personal capacity, liable to punishment, or to the payment of darnages, for acts done in their official character but in excess of their lawful authority. A colonial Governor, a Secretary of State, a military officer, and aII subordinates, though carrying out the commands of their official superiors, are as responsible for any act which the law does not authorise as is a private and unofficial person.5

Conceptualization of Rule of Law Justice O*""_n"b.rts speaking on the issue of The Rule of

nstit ut ional Fo un dations

DrovisionsoftheStatuteconferringthediscretion,constitutiorralprovisions

When we speak of the rule of law as a characteristic of our country, not only that s'ith us no man is above the larr but that everv man. whatever be his rank or condition, is subject to the ordinary law of the realm and amenable

to the jurisdiction of the ordinary tribunals. In Eugland the idea of

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official. Hence Dicey had dsued that under the dotions of rule of law all p€opre shourd be sovened by same set of laws and shourd be subject public 6tem .nd the same lega.l gociedues. ; hi8hty (Erlali,rd adminisrration, ocupies a pl,e in tbevhich the supMe hiSher e€ the thrt which ir the Ft@ch agu€d of Mitr4 in Englard, Dicey h€.d Io the a.bsence of a constitution c.dfida@ thd.t the sour-ce of rights und€r the collmon tav s.as from the customs and il-t, or .L United Stat6 enjovs arldg tbe AIlEi@! peple.3 traditions existina in $ciety. He believed that if the source of legal rights tltat in @ftmdistinction to t'he politic€l scerario of and liberries or rhe citizens w€re the mitten text of rhe constirution, then Dicev had aTu:d France, the Enslish lesal svstem was based on tne norion or Pa'rliamentarv by simply anendire the constitution ;;f;;Lil;'iil;;';; th' la'wE msde bv the Parlia'mat wer€ supr€De alrd b€ curtailed or restricted. It is the faith and belief of the peopte atore with iovereknty wheleir .r,.& "g-,"". the inherent vs.,ues iD soci€tv *n'* form of abus€ exdcis€ of e'ecutive powers hsve crftici6ed this 6i.gular focus of Dicey oa tlr€ Srourd. tllat the exercis€ Dicey's concept of Rule of Laq, ha.6 been a,subject e.n authorities ha