Pub. Ad. Optional (Administrative Law) by Abhishiekh Saxena

Model Answer

Question #1. “Administrative law is touted as a necessary evil but in essence, administrative law is complementary to the rule of law”. Evaluate. 10 marks (150 words)

 Approach:

Administrative law is the body of law that governs the administration and regulation of government agencies. It deals with structure, functions and powers of administrative organ

Why Administrative law is touted as a necessary evil?

Administrative law places public authorities in an advantageous position over the private individuals. Despite its advantages it negates the rule of law as public authorities gets privilege status against private citizen. Discretionary power may be misused or used to the advantage of the few. Lord Hewart identified administrative law as “organised lawlessness”.

However, administration has to deal with various problem and issues of diverse members of the society. The problem and issues are complex. And to deal with these complexities administrative law becomes inevitable. Particularly in welfare state, where many schemes for the progress of the society are prepared and administered by the government. Thus administrative law has come to stay and it has to be accepted as a necessary evil in all progressive society.

How Administrative law is complementary to Rule of Law?

The convention of international jurist came up with much broader and flexible definition of Rule of Law. The Rule of Law refer to the type of conditions and environment where state is operating in a fair and a just manner so as to achieve constitutional and democratic goals of the state.Delhi convention posited that any legal system has two dimensions- (i) substantive and (ii) procedural.

The procedural dimension empowers the administration. This procedural aspect may be considered as administrative law. Therefore Rule of law and administrative law are complementary and mutually exclusive. The objectives are defined by rule of law and they achieved through administrative law. In fact administrative law is directionless without the rule of law and rule of law will be meaningless without administrative law.

Conclusion- Administration can’t operate in vacuum of laws. For smooth operation of administration, administrative law becomes necessary.

Question #2. There are fundamental conflicts between Dicey's understanding of the Rule of Law and Droit Administratif yet Dicey believed Rule of law to be superior. Comment. 15 marks (250 words)

To understand the nature of administrative law on has to consider two school of thoughts:

1. Continental legal system (Droit Administratif)
2. Common laws system (Rule of Law)

Continental legal system lie it origin inFrench legal system which had duality of laws (as well as court) - one set of defining the regulating the state and its member of the state (Droit Administratif).

The Common laws system has single set of laws which regulate the behaviour of both members of the society and state.

The fundamental conflicts between Dicey’s understanding of the Rule of Law and Droit Administratif lies in ‘singularity’ of laws (court) in common law system and ‘duality’ of laws (court) in continental system.

Dicey believed Rule of Law to be superior because -

(a) It puts everyone equal before the law.

(b) The Law is supreme, nothing is above the law

(c) The source of the law is society.

Dicey contrasted Rule of Law of England from Administrative Law of continental system. He was of the opinion that there is no rule of law in continental system. This is because duality of law in continental system which has created a privileged section in the society.

However, there are number of scholars who criticised the Dicey Rule of law. Firstly, Dicey ignored number of developments of that time such concept of delegated legislation and administrative tribunals. Secondly, the British crown were enjoying immunity through legal provisions that negated Dicey’s equality before law.