Whether Administrative Law is an Inevitable Neces­sity Today in India?

The development of Administrative Law is accompanied by the exercise of legislative and judicial authority by the Government or by the offi­cials closely concerned with the Government.

When the activities of State are merely regulatory, it concerns it­self with the maintenance of law and order within and with defense against attack, if any, from outside. In such a set up of the State it is possible to maintain the separation of powers which in the words of the United States Supreme Court, means:-

(a) All powers of the Government are divided into executive, legislative and judicial,

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(b) It is essential for the effective working of this system that persons entrusted with power in any one of these branches shall not be permitted to encroach upon the powers con­fided to the others, but each shall by the law of its creation be limited to the exercise of the powers appropriate to its own department and to no other. This means that the executive wing of the government cannot exercise either legislative or judicial powers.

The aforesaid narrow range of the functions of the State could, if at all, be possible only in the very early stages of the rise of States. The passage of time, the inevitability of circumstances, the logic of experience and fact has progressively brought a change in the func­tions of the State. The doctrine of State Materialism has now become the accepted philosophy of all progressive states.

The State has be­come a Social Welfare State. It has assumed functions which were previously thought to be the concern of the individual. The State now takes care of the health, education, employment, production, control and distribution of essential commodities, the operation and/or regulation of public utilities (Railways, Air-lines, Buses etc.) etc.

The Old Age Pensions Acts, National Health Insurance Acts, Minimum Wages Act, Workmen’s Compensation Acts, etc. etc., point towards this change in the functions of the State, The shift in the emphasis with regard to the functions has made it inevitable to arm the execu­tive with some legislative and judicial function as well.

The legisla­ture has neither the time nor the competence to take care of the host of activities now undertaken by the State. It, therefore, is satisfied by laying down broad policies and leaves the application of these policies to actual facts and situations demands making of rules, decid­ing of cases etc. In the words of W. Friedmann, it is common place that strict doctrine of separation of powers is not only a theoretical absurdity but also a practical impossibility.

There is, Friedmann fur­ther observes, “the inevitable interlocking of these three functions Las Making shades into administration, and administration into decision- making of a more or less judicial character”.

This entire means that the executive “legislates” and “decides” i. e., the growth of ad­ministrative law becomes an inevitable necessity. However, it is per­tinent to note the following observations made by Friedmann:

“The vitality and importance of the doctrine of the separation of powers lies not in any rigid separation of functions, but in a work­ing hypothesis i.e. in the basic differentiation of the three functions of law-making, administration and adjudication.

By far the most im­portant aspect of separation of powers is judicial independence from/administrative direction and that is perhaps the only aspect of the doctrine on which all democracies concur.”

The basic safeguard in the administration of any law is that its enforcement must be in the hands of those who had no hand in its making. Locke regarded it as the ‘first maxim of a free state’ that laws are to be made by one set of men and administered by another set of men.

Secondly, a decision in any dispute must necessarily be adjudi­cated by one who is not a party thereto. This is a fundamental legal necessity and its import perhaps could not be better put than it has been by Robson.

He says “In any Civilized Society and decision of any authority must not depend on (1) individual caprice, (2) should be free from personal favour or individual interest or ego, (3) should not depend on the instincts of deciding authority or on the haphazard initiative or impulse of the moment; and finally the decision must be means of a process which is regular, stable and consistent and from which self-interest or emotional outburst is absolutely excluded”.

A very important reason why administrative law is given a dis­tinct treatment is that the administrative law aims at the assimilation as far as possible of administrative decisions with judicial decisions and to introduce a certain element of detachment and objectively in them.

That is to say administrative law seeks to govern the ad­ministration in such a way as to ‘ ‘reconcile individual liberty with ad­ministrative autocracy whether the autocracy be as Lord Hewait once styled of a “Single despot” or as Madison puts it of ‘450 despots’ being the members of the Parliament.”

Administrative law in India might technically be said to have commenced with the inauguration of the Indian Republic and the coming into effect of the Indian Constitution of 26-1-1950. But ironi­cally enough, the seeds had been sown by the English Judges during the administration of the country by the East India Company.

Former­ly the decision of Election Tribunals, Board of Revenue, Debt Con­ciliation Boards and the Religious Endowments Boards were interfered with when they were manifestly perverse or illegal.

But in 1944, in what was known as the Parlakemedi case, Ryots of Garabondho V. Zamindar of Parlakemedi, I.L.R. (1944) Mad. 45, the Privy Council threw a bombshell and restricted the power to issue a writ affecting any decisions of a body which was outside the Original Jurisdictional limits of the High Court.

The Indian Constitution, however, has made a clear sweep of all these restrictions. Under the Indian Constitution, the power of the High Court and of the Supreme Court has been enlarged to an ex­tent unparalleled in any country in the world with the exceptions per­haps of the American Supreme Court.