Administrative law 2nd lecture

Legal Help Desk By- Keshav Choudhary
Basic of Administrative law
Difference between Constitution Law and Administrative law
According to the early English writers on administrative law there is no
difference between administration law and constitutional law.
In present days Administrative law deals with the organization,
function, powers, and duties of administrative authorities while
constitutional law deals with the general principles relating to the
organization and powers of the various organ of the state and their
mutual relationship and these organ with the individual.

 In others words Constitutional law deals with fundamentals with
administrative law deals with the details.
 Constitutional law deals with rights and administrative law lays
emphasis on public needs.
Source of Administrative law are:
There are four principle source of administration law in India:
1. Constitution of India- The constitution of India itself source of creation
of several administrative bodies and agencies. Like Article 32 & 226
extends protection against infringement of any fundamental rights by
an administration action both for SC and HC.

2. Acts and statues- Different acts and statue passed form time to time,
constitute source of administrative law. Several administrative bodies are
created under such acts .
3. . Ordinance, administrative directions, notifications and circulars-
Ordinance are issued by president and governor under article 123 & 213.
4. Judicial Decisions-The importance of judge made as a source of
administrative law has been recognized by Prof. K.C. Davis also who
believes the bulk of American Administrative law is judge made law.

 Power corrupts and absolute power corrupt absolutely,
 Montesquieu said that if the executive and the Legislature are the
same person or body of persons, there should ne danger of the
Legislature enacting bad laws and enforce it.
 According to Wade and Philips say that the doctrine means
1 The same set of persons should not compose more than one
department of the three department.
2 One department should not exercise the function of the other two
departments
3. One department should not control or interfare with the work of
other two departments.

Separation of powers
The doctrine of separation is of ancient origin. The separation of
powers is based on the principle of trias politica, which means
separation between three independent powers in nation i.e.
Legislature, Administration and Judiciary. The history of the
doctrine of separation of power is tracable to Aristotle. John
Bodin and British politician Locke respectively expounded the
doctrine of separation of power in 16th ans 17th century. The
legislature makes laws, the executive enforces them and the
judiciary applies them to the specific cases arising out of the
breach of law.

The division of governmental powers into legislative, executive and
judicial is not an exact classification. It is abstract and general and it is
not true only theory, but it is also impossible in actual practice to
make complete separation.
After the end of the war of independence in America by 1787 the
founding fathers of the American constitution drafted the constitution
of America and in that itself they inserted the Doctrine of separation
of power and by this America became the first nation to implement
the Doctrine of separation of power throughout the world.

 “Separation of Powers” is embedded in the Indian Constitutional set
up as one of its basic features.
 Under the Indian constitution there is an express provision under
article 50 of the constitution which clearly states that the state should
take necessary steps to separate judiciary from the executive i.e.
independence of judiciary should be maintained.
 The doctrine of separation of powers as propounded by Montesquieu
had tremendous impact on the development of administrative law
and functioning of Governments.

 It was appreciated by English and American jurists and
accepted by politicians. In his book ‘Commentaries on the Laws
of England’, published in 1765, Blackstone observed that if
legislative, executive and judicial functions were given to one
man, there was an end of personal liberty.
 The Constituent Assembly of France declared in 1789 that there
would be nothing like a Constitution in the country where the
doctrine of separation of powers was not accepted.
 The doctrine of separations of powers may be traced back to an
earlier theory known as the theory of mixed government from
which it has been evolved.

Montesquieu, a French jurist first time gave a systematic information on the seperation
of power. According to Monesquieu’s view the doctrine of separation of powers (des
pauvoirs) means that one person or body of persons should not exercise all three
types of powers of government, namely, executive, legislative and judicial.
 The doctrine of separation of powers was inferred by Montesquieu from the British
Constitution.
Separation of power in Indian context
In India before Independence there was no any distinct separation of power. It is
recognized and enforced after the independence of India. It is impossible to separation
of power completely. Article 50 of the constitution deals with the separation of power
between legislative, executive and Judiciary. In the Constitution of India President and
Governor have legislative as well as executive power. Both of them have also some
judiciary power.

 Advantages of the doctrine of the separation of power:
There are various advantages with the acceptance of this doctrine in the
system;
1. The efficiency of the organs of state increased due to separation of
works hence time consumption decreases.
2. Since the experts will handle the matters of their parts so the degree of
purity and correctness increases.
3. There is the division of work and hence division of skill and labour
occurs.
4. Due to division of work there is no overlapping remains in the system
and hence nobody interfere with others working area.

5. Since the overlapping removed then there is no possibility of the
competition in between different organs.
 Separation of power in U.S.A context:
 The framers of constitution of USA believed that only by allocating the
three basic functions of the government; legislative, executive and
judicial, in to three separate, coordinate branches could power be
appropriately dispersed. Thus the US Constitution allocates the three
powers in separate branches. The first three article of their
constitution[4], known as the distributive articles, define the structure
and powers of the congress (legislative body), executive and the
judiciary.

 The Supreme Court of US has not been given power to decide
political questions, so that the Court may not interfere with the
exercise of powers of the executive branch of the government.
 The President of USA interferes with the exercise of the powers by the
congress through the exercise of Veto power. He also exercises the law
making with the use of his treaty making power. The President also
interferes with the functioning of the Supreme Court through the
exercise of his power to appoint judges.
 In brief we can say that the condition in US by the words of CORWIN,
separation of powers are more specifically seen in USA but absolute
separation of powers does not exists in USA.

 We can say that the Doctrine of Separation Powers; is followed in
US with a spirit, never followed in UK purely, and India has
followed it with large exceptions.

Administrative law 2nd lecture

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Administrative law 2nd lecture