This document outlines the learning objectives, course materials, methods of learning, and provides an introduction to the course on Administrative Law. The key objectives are to introduce students to administrative law concepts, case law, regulatory issues, and how to deal with government agencies. Students will learn through reading materials including textbooks, case law, and regulatory documents. The methods of learning will include lectures, presentations, group work, assignments and modules. Administrative law governs the powers and procedures of administrative agencies and their relationship with the public.

1. Adv. Vijay Jayshwal
Kathmandu University School of Law
Administrative Law (LADM 336)
12/27/2019

2. Learning Objective of the course
 Basic introduction to administrative law,
jurisprudence, case law
 Aware about the power, control, discretion, abuses
and misuse, agencies of government, judicial review,
administrative action etc.
 Administrative law literacy
 Recognize administrative law issues
 How to deal with agencies
 How agencies are and must be political
 Cost-benefit analysis
 Unintended consequences of regulatory decisions
 A hard look at a few regulatory problems
 Unlawful and irregular administrative actions 12/27/2019

3. Course Materials
 The prescribed text book ( M P Jain and S N Jain,
Principles of Administrative Law (Lexis Nexis, 2015)
 Basic intro to administrative law – read it all
 Full text cases in specific regulatory areas ( Articles,
book review, case law, journals publicist, judicial
opinions, and others)
 Learn to deal with the underlying facts
 Regulatory materials/ Publicist from agencies
 What do regulatory documents look like, values, scope
and regularities on such publication?
 How do you read long documents? Methods of using
smarter documents
 Socratic dialogue, interaction and discussion of issues
that come up in the regular/ daily news.
 Each chapter will follow by specific reading materials
prescribed by concerned teacher.
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4. Methods of Learning
 Priority to text book….
 PowerPoint slides
 These will be used at times in the course to present
background material , literature review on subject
concerned on specific legal issues of administrative
law subjects
 Regular class presentation will be emphasis, peer
group learning will be encouraged, group work will be
prioritized and other as suggested by students.
 Modules
 Reading materials will be displayed at modules soon
after class, specific assignment will be given in
module.
 Further evaluation question will be also given,
developmental ideas will be respected…..
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5. Welcome to domain of ADMINISTRATIVE LAW….
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6. 12/27/2019

7. 12/27/2019

8. Why to Study Administrative
Law
 Some is on the bar
 Procedural due process and standing
 The majority of lawyers do admistrative practice some
or most of the time.
 Malpractice trap if you do not recognize adlaw problems.
 Fundamentally different approach than non-agency
courses.
 Work for agencies.
 Counsel clients how to operate within regulations.
 Represent clients before agencies.
 Litigate against agencies.
 Represent clients in the development of agency policy
and regulations.
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9. What is Administrative Law?
 It is indeed difficult to evolve a scientific, precise & satisfactory
definition of Administrative Law.
 Many Jurists have made attempts to define it, but none of them
has completely demarcated the nature, scope & content of
administrative law.
 Administrative law and its concept are considered as
changing phenomena.
 It is considered as branch of constitutional law which deals
with administration.
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10.  Administrative law is relating to the administration. It
determines the organizations, powers & duties of the
administrative authorities. It is the most widely
accepted definition of the Administrative Law. (Sir
Ivor Jennings)
 It does not distinguish administrative law from the
constitutional law & It is vast definition. (Griffith & Street)
 However, it does not include the remedy(/ies) to an
aggrieved person when his rights are adversely affected by
the administration. (Griffith & Street)
 The relating the control of governmental power is called as
administrative law. (Wade)
 According to Wade, the primary object of administrative
law is to keep powers of the govt. within their legal bounds
so as to protect the citizens against their abuse. (Wade)
 However, this definition also does not define the subject
and also does not deals with the powers & duties of the
administrative authorities. (Wade)
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11.  Administrative law is the law concerning the
powers and procedures of administrative
agencies including especially the law governing
judicial review of the administrative action. (K C
Davis)
 Administrative law deals with the structure, powers &
functions of the organs of the administration, the limits
of their powers, the method & procedures followed by
them in exercising their powers & functions, the
method by which their powers are controlled including
the legal remedies available to a person against them
when his rights are infringed by their operations. (Jain
& Jain) 12/27/2019

12.  Administrative law is that branch of constitutional law
which deals with powers duties of the administrative
authorities, the procedure followed by them in
exercising the powers and discharging the duties and
the remedies available to an aggrieved person when
his rights are affected by the action of such authority.
(Justice C K Thakker)
 Whatever form a new administrative agency takes, the
legislature must enact a statute creating the agency.
This is called an agency’s organic act and mostly
termed as’ enabling act’ is the fundamental source of an
agency power.
 This principle- that the legislature creates agencies
and sets limits on their authority- should be
12/27/2019

13.  Administrative law is part of the branch of law
commonly referred to as public law, i.e the law which
regulates the relationship between the citizen and the
state and which involves the exercise of state power.
 Public law is to be contrasted with private law, i.e the
law which regulates the relationship between
individuals, such as the law of contract and tort.
 Administrative law may be broadly defined as the law
which regulates the exercise of power conferred
under the law upon governmental bodies.
 In this context ‘governmental’ refers to all public
bodies invested with power under the law and so
includes, for example, local authorities, the police and
public corporations as well as central government.
 Indeed, a body may be defined as a public body
and, as such, be subject to the principles of
administrative law, even though it was not established
by, and did not derive its powers from, government.
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14.  Citizen’ here refers not only to the individual;
government decisions may also affect individuals
collectively in the form of, for example, trade
unions or pressure groups.
 However, administrative law is not confined to
regulating the relationship between the citizen
and the state.
 It also serves to allow challenges by one arm of
government to the legality of acts by another arm;
in particular, challenges by local government to
the legality of actions of central government or
vice versa.
 As such, administrative law may be perceived as
a weapon in the hands of the power holders
themselves to ensure that each centre of power
acts within the legal limits of its authority.
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15.  The legal regulation of governmental power is to
be distinguished from the political control of
governmental power. The latter forms the basis
of the study of constitutional law.
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16. What is common in law definition on
Administrative law?
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17.  Professor Arthur Bonfield “administrative law is best
appreciated through a comparative approach to
the topic, that there is a great deal of creativity
(what he calls “state solutions”) in state
administrative systems that are never
implemented by the stodgier, less innovative
federal agencies, and, perhaps most importantly”
 State administrative processes operate under
different circumstances than does the federal
administrative process; consequently, some of the
problems presented [in the states] differ either in
degree or kind from those presented in the
federal process. Many of the feasible or effective
solutions to federal administrative law problems
are not feasible or effective in the state context.
Therefore, a study of problems and solutions in
the federal administrative process cannot be an
adequate vehicle to prepare students for dealing
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18.  Second, Read the agency’s enabling act and that
jurisdiction’s administrative procedure act
 Scholar refer to this freedom of action as agency
discretion. Agency discretion is a second fundamental
to keep constantly in mind.
 It is realizing that the vast majority of agency
decisions are never reviewed by either the courts or
the legislature.
 A third fundamental that should never be forgotten is
that courts have a relatively limited role in supervising
agency conduct.
 Administrative Law is a combination of substantive
and procedural law.
 Each federal administrative agency is empowered to
administer a particular statute or statutes.
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19.  Administrative Law is the rules, orders, and decisions of
federal, state, and local government agencies established
to perform a specific function.
 Enabling Legislation.
 The Types of Agencies.
 Agency Powers and the Constitution
 The administration of law, the law of administration,
administration + law
 It is a public law.
 Admin law involves the study of how those part of our system
of government that are neither legislature nor courts make
decisions.
 These are called, administrative agencies normally located in
the executive branch of government and usually charged with
day –to- day details of governing.
 These agencies are created by specific Act of the legislatures
and assign accordingly.
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20.  Roman Law, still (6th c.)
 Publicum ius est, quod ad statum rei Romanae
spectat, privatum, quod ad singulorum utilitatem.
(“the government of the Roman empire” vs. “the
welfare of individuals”).
 Publicum ius in sacris, in sacerdotibus, in
magistratibus consistit. (“sacred rites, with priests,
with public officers”)
 Martin Loughlin (2005)
 “a set of practices concerned with the
establishment, maintenance and regulation of the
activity of governing the state … the nature of
[which] can be grasped only once that activity has
been conceptualised as constituting an 12/27/2019

21. Sources of Administrative Law
 Sources are the conduct of those agencies by which
rule of conduct acquire the character of law by
becoming objectively definite, uniform, above all
compulsory.
 The sources of admin law is divided into two parts:
 Primary sources- Constitution, Act, Ordinance,
Precedent, Delegated legislation, Executive Orders
and administrative practices. (Mediate)
 Secondary sources- Opinion of experts, international
treaties, Agreement, Declaration and Commitment,
Reports of various Committee and Commission, legal
maxims and principles ( Immediate, Keshav Raj
Padeny,p.16 & 17)
 Admin. Law is not codified, written or well defined.
 It is essentially unwritten, unmodified and basically
judge made.
 It stands on some fundamental rules, basic principles,
minimum standard of law etc.
 It is based on the well known maxin “Ubi jus ibi
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22. 12/27/2019
 In case of UK, Rules Publication Act 1893,
Statutory Instrument Act 1946, Tribunals and
Inquiries Act 1958 (now 1991), Crown
Proceedings Act 1947 and Parliamentary
Commissioner Act 1967.
 In USA, Administrative Procedure Act 1946,
Federal Tort Claims Act 1946, Tribunals Act 1984,
Indian Evidence Act 1872, Commission of Inquiry
act 1952 and others.
 In Nepal, Apex Court Act 2008, Magistrate Ain
Sawal, 2010, Citizens Right Act 2012, Civil
Service Act 2013 & Rules 2021, SC Act 2075,
Administrative Function Regulation Act 2013 and
others.

23. Nature & Scope of Administrative Law
 Administrative law deals with the powers of
the administrative authorities;
 It deals with manner in which such power will
exercise;
 Remedies for breach of such manner to an
aggrieved;
 It unravel the way in which these admin
authorities could be kept in boundary;
 Lawful exercise of discretionary powers
12/27/2019

24. Principles of Admin law
12/27/2019
 A public authority may not act outside its powers
(ultra-vires) (principle of jurisdiction)
 To provide an effective remedy to the people against
the public authorities (principles of remedial
appendages)
 To check abuse or detrounment of administrative
powers (principles of check and balance)
 To ensure the citizens an impartial determination of
their disputes with officials (principles of fairness,
due process)
 To protect the people from unauthorized
encroachment on their rights and interests ( principle
of exercise lawful authority)
 To make those who exercise public power
accountable to the people ( principle of
accountability)
 To protect a public authority from being harassed by

25. Reasons behind growth of Admin.
law
 There is radical change in the philosophy as
to the role played by the State;
 The judicial system is inadequate to decide &
settle al types of disputes;
 The legislative process was inadequate;
 There is scope for experiment in
administrative process;
 The administrative authorities can avoid
technicalities;
 It can take preventive measures;
 The can take effective measure to enforce its
decision.
12/27/2019

26. Functions of Admin. law
 Principal function of admin. Law is to confine the
govt. within the law,
 Ensure citizens rights and remedies in case of
violation,
 Ensure accountability of the govt.
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27. What does Administrative Law Deal With?
 The formation, staffing, and funding of agencies.
 Rulemaking (legislation) by agencies
 Adjudications (trials) by agencies
 Judicial review of agency action
 Access to private information by agencies
 Public access to agency information
 Agency liability
12/27/2019

28. Areas of Administrative Law
Practice
 Tax
 Environmental law
 Securities law
 Land use law
 Health law
 Energy law
 Etc.
12/27/2019

29. Three Approaches (Willis)
 The Situation (Discretionary administration or “rule of
law”?)
 The Challenge (The practical problem is how to fit
into our constitutional structure these new
institutions whose growth seems inevitable)
 The Solution
 Judicial
 Conceptual
 Functional
12/27/2019

30. Judicial (The Ugly)
 Judicial prejudices
1. Cases over statutes (judges over legislators); strict
construction; common law over statutory law (formal)
2. Private rights over public welfare; common law over
statutory law (substantive)
3. Judges and legislature over executive (personal)
 “judges are also human”
 “growing hostility to administrative tribunals”
manifests itself in various ways (less deference,
stricter review, from “easy-going air of tolerance” to
“suspicious distrust”)
 The truth is that … where the legal concepts to be
applied are vague and indeterminate, and strong
feelings are aroused, the replacement of one
attitude by another produces a different result in a
similar situation.
 Legal Realism 12/27/2019

31.  Horwitz:
 19th c.: “One of the goals of nineteenth century
legal thought was to create a clear separation
between constitutional, criminal, and regulatory
law—public law—and the law of private
transactions—torts, contracts, property, and
commercial law.”
 Why? separate law from redistributive politics; “state
regulation of private relations was a dangerous and
unnatural public intrusion into a system based on private
rights”
 early 20th c.: progressivism and legal realism: “All law
[is] a delegation of coercive public power to
individuals, and could only be justified by public
policies.”
 After 1945: “[R]evival of natural-rights individualism …
is a symptom of the collapse of a belief in a
distinctively public realm standing above private self-
interest.
 It is not only a dangerous symptom of the unravelling
12/27/2019

32. Conceptual (The Bad)
 Doctrinal distinctions/labels
 E.g., judicial vs. administrative function
 Constitutional beliefs
 Separation of powers
 Rule of law
 “internal limit”
 “Modern necessities”/ “public expediency”
 Use labels (e.g., “administrative” acts) to achieve
desired result
 Indeterminate and outdated
 Separation of powers: so “eighteenth-century”
 Rule of law: so “nineteenth-century” 12/27/2019

33. Functional (The Good)
 Institutional competence
 “The problem is neither one of law nor of formal
logic, but of expediency.”
 Fact: “work is assigned to the person best fitted to do
it”
 Legal rights are normally decided by a court for the
reason, and no other, that they are best fitted for the work
of finding facts and absorbing new interests into the
existing social structure.
 Norm: and that’s the way it should be
 “All three existing arms of government being found
inadequate to achieve the social purpose aimed
at, a new type of body, called a commission, a
government in miniature, is set up.”
 Deference as recruitment tool: “attract[ing] men of
first-class calibre”
 Move beyond “pure law” to deal with the […]
(messiness, complexity, dangers, 12/27/2019

34. Theories
 Legal idealists – about defining public values and
designing institutions to implement them; value
transparency and process
 Democratic liberalism – concerned with rule of law,
so emphasizes accountability
 Normative pluralism – concerned with ensuring
access to diverse groups of policy/interest groups
 Realist – question whether public-oriented goals of
legal ideologists can be instituted and question
behavioral motivation of agency heads
 Critical theory – admin about power dynamics of
socio-economic class (lesser focus on dynamics of
race and gender)
 Public choice/positive political theory – legislation
embodies the interest of groups with proper incentives
to mobilize and wield influence
 Politics is a market for legislation
 Based on assumption that all actors behave rationally
to maximize wealth, status and power 12/27/2019

35. 12/27/2019
 Green light theory
 The green light approach considers that the function
of administrative law is to facilitate the operation of
the state.
 It is based on the rationale that bureaucrats will
function most efficiently in the absence of
intervention.
 Administrative law should aim to help simplifying the
procedures and enhance efficiency.
 It sees that admin law is a vehicle for political
progress and welcomes the ‘administrative state’.
 To minimize the influence of courts, with their
legalistic values,

36. 4’s propositions of GLT
12/27/2019
(1) That law is nothing more than a sophisticated (or elitist)
discourse of politics and is neither autonomous from
politics nor superior to administration;
(2) That public administration is not a necessary evil to be
tolerated, but a positive attribute to be welcomed;
(3) That the objective of administrative law and regulation is
not merely to stop bad administrative practices, but is to
encourage and facilitate good admin practices (to control
administration by channelling and guiding and courts not
necessarily best vehicle to realise these objectives);
4) The goal of this project should be to enhance individual
and collective liberty where liberty is conceived of as
something which is, if not constituted by the state, then is
at least facilitated by it, and is certainly not necessarily
threatened by it (e.g. goal of the state might be to house
the homeless and feed hungry and educate young, etc.
and role of admin. law is to help state perform these tasks

37. Red Light theory (RLT)
12/27/2019
 The red light approach advocates strong role for
the courts to review administrative decisions. It
considers that the function of law is to control the
excesses of state power.
 “The red light view can be seen to originate from a
political tradition of 19th century laissez faire
(minimal state) theory.
 It embodied a deep-rooted suspicion
of governmental power and a desire to minimize
the encroachment of the state on the rights
(especially property rights) of individuals.
 According to this theory of state, the best
government is the one that governs least. Wider
power means danger to the rights and liberty of
citizens.
 Hence, the red- light theory serves the function of

38. 4’s propositions of Red Light
Theory
12/27/2019
(1)That law is autonomous to and superior over
politics;
(2) That the administrative state is something which
needs to be kept in check by the law;
(3) That the preferred way of doing this is through
rule-based adjudication in courts;
(4) That the goal of this project should be to
enhance individual liberty where liberty is
conceived as being the right to be left alone, the
absence of external constraints (an idea of liberty
best realised by having small government).

39. Amber Light Theory
12/27/2019
 It believes that admin law must act both as fire-
watching and fire-fighting.
 4’s propositions …
(1) (With red-light theorists) that law is both discrete
from and superior to politics;
(2) That the state can successfully be limited by law,
although that law ought properly to allow for the
administration to enjoy a degree – albeit controlled
degree – of discretionary authority;
(3) That the best way of controlling the state is through
the judicial articulation and enforcement of broad
principles of legality;
(4) That the goal of this project is to safeguard a

40. History of Administrative Law
12/27/2019

41. Admin as subject…
 Admin law is a subject of fairly recent origin with the
potentiality of multi-dimensional growth.
 There may be some force in the early 1960s when Lord Reid
stated in Ridge V. Baldwin (1964, A.C.40) that “ we do not
have a developed system of administrative law-perhaps until
fairly recently we did not need it”.
 But in the last quarter of the 2oth century very few public
law experts would venture to contest the propositions that
administration of justice would be incomplete without the
proper appreciation of administrative law.
 Considering the growth of admin law, its field can be broadly
divided into four parts:
1. Introductory of admin law.
2.Legislative functions of administrative bodies
3. Judicial functions of administrative bodies
4. Purely administrative functions of administrative bodies
especially involving exercise of discretionary power. 12/27/2019

42. The Administration of
Government
 Moving beyond feudalism, all governments are
divided into functional units that behave as
agencies
 Administrative law deals with agencies in the
executive branch of the federal government
 State administrative law is more complex because
states have multiple executives and less separation
of powers.
12/27/2019

43. The Colonial Period
 Colonial governments had agencies that were
either controlled by the king or by local
governments
 Boards of health
 Major cities were more powerful entities than
most states
 To this day, old cities have varying degrees of
special legal status
 Much of the regulatory state was urban
12/27/2019

44. Articles of Confederation
 After independence, but before the Constitution,
the states were independent sovereigns
 All agency action was under state and local
 The Articles did not provide for a central
government with binding powers
 This did not work very well and almost cost for the
revolutionary war
12/27/2019

45. The Constitutional Allocation of Powers
 The Constitution provided for a national
executive, legislature, and courts with binding
powers over the states
 The states were left all powers not allocated to
the federal government
 Police powers (most traditional state and local
regulation)
 The delegation was flexible, not enumerated
12/27/2019

46. Administrative Law in the Constitution
 The Constitution did not contemplate a large
federal government
 The Constitution established the framework for
separation of powers and basic functions of the
government, but is largely silent on the law of
agencies
 This was not important at the time because day to
day government was run by states and cities
12/27/2019

47. World War II
 The role of the federal government was greatly
expanded to fight World War II
 Took over private business for the war effort.
 Intruded in private life (rationing, etc.) for the war
effort.
 The military did not disband after WW II because
we went into the Cold War
 The federal government also did not disband,
beginning the modern regulatory state
12/27/2019

48. Post World War II
 Modern administrative law starts with the
Administrative Procedure Act in 1946.
 Modern Supreme Court admistrative law
jurisprudence starts in the 1960s as the
regulations increase and Court starts to work out
the proper role of agencies.
12/27/2019

49. Reference materials
 Chapter 1, Lectures on Administrative Law: C K Thakker.
 CASE OF O.O. v. RUSSIA (Application no.
36321/16) , ECLI:CE:ECHR:2019:0521JUD003632116 , Council
of Europe: European Court of Human Rights,
 OPINION OF ADVOCATE GENERAL BOBEK in Case C-556/17
Alekszij Torubarov v Bevándorlási és Menekültügyi Hivatal
(Request for a preliminary ruling from the Pécsi Közigazgatási és
Munkaügyi Bíróság (Administrative and Labour Court, Pécs,
Hungary)) , ECLI:EU:C:2019:339 , European Union: Court of
Justice of the European Union,
 AFFAIRE A.M. c. FRANCE (Requête no 12148/18) , Council of
Europe: European Court of Human Rights
 Arrêt n° 219 682 , Belgium: Conseil du Contentieux des Etrangers
 BF (Tirana – gay men) Albania [2019] UKUT 0093 (IAC) , United Kingdom:
Upper Tribunal (Immigration and Asylum Chamber),
 SM v Entry Clearance Officer, UK Visa Section (C-129/18) (request for preliminary
ruling) , European Union: Court of Justice of the European Union
 E. v Staatssecretaris van Veiligheid en Justitie (C-635/17) (request for preliminary
ruling) , ECLI:EU:C:2019:192 , European Union: Court of Justice of the European Union
12/27/2019

50.  Vermont Yankee Nuclear Power Corp. v. NRDC
(435 U.S. 519 (1978).
 Citizens to Preserve Overton Park v. Volpe (401
U.S. 402 (1971)
 Universal Camera Corp. v. NLRB (340 U.S. 474
(1951).
 Chevron, USA., Inc. v. NRDC (467 U.S.
837(1984).
 Reserve Mining Co. v. EPA514 F.2d 492 (8th Cir.
1975)
 Asbestos Information Association of North
America v. OSHA (727 F.2d 415 (5th Cir. 1984).12/27/2019

51. Nepalese case law
 Krishna Prasad Lamsal vs. Nepal Government
(writ no-2737-2048)
 Thirtha Koirala vs. Nepal Government (writ
no.2921-2050)
12/27/2019

52. Indian case law (Year of 2018)
 Constitutionality of Aadhaar Act (K.S. Puttaswamy v. Union of lndia,
WP (C) 494/2012)
 Sabarimala Temple Entry (Indian Young Lawyers Association v.
State of Kerala, WRIT PETITION (CIVIL) NO. 373 OF 2006)
 Constitutionality of Section 377 (Navtej Johar v. Union of India,
WRIT PETITION (CRIMINAL) NO. 76 OF 2016)
 Arrested Activists (Romila Thapar v. Union of India, WRIT PETITION
(CRIMINAL) NO. 260 OF 2018)
 Decriminalization of Adultery (Joseph Shine v. Union of India, WRIT
PETITION (CRIMINAL) NO. 194 OF 2017)
 Reservation in Promotion (Jarnail Singh v. Lacchmi Narain Gupta,
SPECIAL LEAVE PETITION (CIVIL) NO.30621 OF 2011 )
 Electoral Disqualification (Public Interest Foundation v. Union of
India, WRIT PETITION (CIVIL) NO. 536 OF 2011)
 Hadiya Marriage (Shafin Jahan v. KM Ashokan, (Arising out of
S.L.P.(Crl.) No.5777 of 2017)
 Cow Vigilantism (Tehseen Poonawalla v. Union of India, WRIT
PETITION (CIVIL) NO. 754 OF 2016)
 Special Status of Delhi (Government of NCT of Delhi v. Union of
India, CIVIL APPEAL NOS. 2357 OF 2017)
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53. 12/27/2019