Ques: What is Administrative Law. Describe the scope and
nature of Administrative Law and Bring about the correlation between rule of
law and Administrative Law.
Ans: Various theorists such as Griffith, Prof swatz, Prof
hart came out with different definitions of administrative Law that is
indicative of no universally accepted definition of administrative law. Though,
a general definition can be assigned on the basis of the definitions by various
theorists.
Administrative Law
refers to the laws that deal with the roles and responsibilities of
administration. While assigning the roles and responsibilities it also
describes the manner in which those responsibilities are to be exercised. In
addition, it puts limits on the powers of administration and describes the
manner in which the limits are to be exercised. Besides, In case of breach of
law, it provides for remedial actions.
Historically,
Administrative Law came up in the context of continental legal system of France
and some other European countries that was different from the Common Law system
of UK, US. In the continental law system, there were two different courts
namely-ordinary courts and administrative courts. Whereas ordinary courts dealt
with the issues of society and regarding members of the society, the
administrative courts dealt with the issues of state and regarding members of
state. The continental law system assigned a narrow connotation to
administrative law by differentiating it with the common law.
Scope:
Professor MP Sharma says that administrative law is of two
types: official law and law dealing with administrative responsibility.
Official law includes imparting education, facilities, services etc , issuing
licences, certificates, No objection certificates etc, delegated legislation
and administrative ad jurisdiction. The Laws that make the administration
accountable to citizen, legislature, judiciary and international agencies etc.
come under the ambit of laws that deal with responsibility of administration.
The same was explained by Professor Hart through his concept of Internal and
External administrative Law.
Nature :
First, Administrative Law is Social as it exercises
discretions in operations. Second, It is technical as it deals with subjects of
rationality, scientisicm that require technical skills and methods. Third, It
assigns certain privileges to the members of administration. Fourth, It is
flexible as it deals with subjective issues. Third, It is dynamic and
progressive as it is subjected to interpretations especially by judiciary.
Contempory Rule
of Law has two aspects: Substantial and Procedural Aspect. The Substantial
aspect deals with the objectives of the society and the Procedural aspect
describes the procedures to achieve the aims and goals of the society. It
should not violate citizen rights, should not be discretionary, should be
reasonable, rational , should be reflective of the customs and values of the
society etc. Since Administrative Law empowers the administration with power of
action therefore it is complementary to the Rule of Law. Without the
Administrative Law, Rule of law cannot achieve its objective and in the absence
of rule of law administrative law becomes directionless.
Ques: The Rule of Law of Dicey is a garb to maintain the
status quo between the haves and have nots.
Ans: The rule of law of Dicey provides for a single set of
laws for everybody, delegated legislation, interpretation by judiciary .
According to Marx, The Society consists of have and have nots and hence the
single set of laws for both the sections is intended to control the
revolutionary spirit of have nots. The have nots being dispriveleged have a
much higher propensity than the haves to violate the laws. In addition,
violation of laws need to be proved in a court of law through a process that is
cumbersome and expensive, to ensure punishment. Practically, this results into
punishment for the have nots only whereas the haves go unpunished. So, Rule of
Law though ideologically aimed to depict the egalitarian nature of the society
ends up hiding the true character of society that is to maintain the socio
economic composition of the society.
