Question:- What are the sources of Administrative Law in India?

Answer:- Administrative law is mainly concerned with powers. It is necessary to examine the sources of powers before considering in details how power is controlled. The customary divisions of the sources of legal power are common law and statute so it is with administrative authority. So far as the Central Government is concerned its common law powers fall under the royal prerogative which, however, has no relevance to the activities either of Local Government authorities or modern statutory corporations, which include both ministerial departments, such as Housing and Local Government, Education. Since the latter are exclusively the creation of Parliament it follows that their powers are derived solely from the same source.

In the realm of administrative law, the conflict between the Parliament and the courts would whenever the former seeks to abridge any of the fundamental rights of the citizens which are justiciable.

Now the question arises as to what are sources of administrative law in India. The following are the chief sources of administrative law in India.

1.  Constitution:-The Constitution of India deals with formulation of the executive, the powers of the Executive during peace and emergency times.

Administrative law is concerned solely with the administrative acts of either the administrator or of quasi-judicial bodies. Now the methods by which such acts are interfered with are by the use of prerogative or Common law writs, especially by the writs of Certiorari, Mandamous and prohibitions. These writs are issued only by the High Courts in England and by the Supreme Court and High Courts in India under Articles 32 and 226 of the Constitution of India. Very nature of such a jurisdiction excludes the decision of the ordinary Civil or Criminal Proceedings in the land, because those proceedings carry with them the safeguard provided by statute of appeal, revision and review. Hence, it is clear that these writs are not available against the judicial proceedings of the courts.

The concept of rule of law has provided unique dimension to the study of Administrative law. According to Justice Ramaswami of the Supreme Court, “the rule of law is necessary if fundamental democratic values are to be preserved and if the democratic structure of the State is to be maintained”. The rule of law is a basic structure of the Constitution [Smt. Indra Nehru Gandhi v. Raj Narain, A.I.R. 1975 SC 2299]. Every organ of the State under our Constitution is regulated and controlled by the rule of law [A.K. Kraipak v. Union of India, (1970) 1. S.C.R. 475]. The Constitution of India also provides under Articles 299 and 300 the contractual and tortuous liability of the Government servants.

2. Statutes:- – Statute law is then, a well-nigh exclusive source of administrative power. The term covers both Acts of Parliament and delegated legislation. Acts of Parliament comprise public general Acts and private or local Acts. Delegated legislation, or as it is sometimes called, subordinate legislation includes statutory instruments which were formerly styled as statutory rules and orders. Acts of Parliament fall into two categories which may be conveniently termed constituent Acts and enabling Act, but some Acts deal with both Constitution and power. In short, we can say statutes are one of the important sources of administrative law.

3.     Ordinances:-The ordinance-making power relates to the legislative powers of the Chief Executive in Union and States. Article 123 of the Constitution of India which deals with the legislative powers of the President empowers the President to promulgate ordinances during the recess of Parliament, and Article 213 confers a similar power on the Governor to promulgate ordinances during the recess of state legislature.

These provisions have secured considerable flexibility both to the Union and to the State to enact laws to meet emergent situations as also to meet circumstances created by laws being declared void by courts of law. Grave public inconvenience would be caused if an Act, like the Bombay Sales Tax Act, being declared void, no machinery existed whereby a valid law could be promptly promulgated. However, it must be remembered that under the Indian Constitution a validating Act must stand the test of Part III of the Constitution. Further it must be noted that the Ordinance making power of the Chief Executive is not unlimited or unbridled. It is provided under the Constitution that the President or the Governor, as the case may be, can issue ordinances on the advice of Council of Ministers. For the confirmation of ordinance approval of the Houses is required. In this way, the power is subjected to legislative control.

4.  Judicial Pronouncements:- The contribution of the courts has not been less laudable towards the growth of Indian Administrative Law. The judicial pronouncement exhibited considerable expansion of the right of hearing, judicial control of discretionary powers, judicial review over the administration in general and promotion of open government.

5.  Reports:- Reports made by various bodies also constitute an important source of law. Important reports in this respect are Report of the Committee on Minister’s Powers, Frank Committee Report and Reports of Administrative Reforms Commission.

Courtesy:- Dr. Deepak Miglani