Public Administration Study Materials. Click Here. It also specifies the procedures by which those rights and liabilities are enforced. It does not cover several aspects administrative law; it excludes the study of administrative processes and examination of various powers and functions of administrative authorities and it covers only one aspect of administrative law i.
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So today's post begins with a very important aspect of Public Administration which is - Administrative law and related dimensions. Let's proceed with the details. SCOPE : Administrative law determines the organization, powers and duties of administrative authorities. The emphasis of Administrative Law is on procedures for formal adjudication based on the principles of Natural Justice and for rule making.
The concept of Administrative Law is founded on the following principles: a Power is conferred on the administration by law b No power is absolute or uncontrolled howsoever broad the nature of the same might be. Natural justice is basically applied in cases where there are no laws prescribed,here the individual has to be given an opportunity to be heard and the judgement is to be taken into consideration the particular facts and cases of the case and the judgement should be free from bias.
It is to prevent violation of people's rights by officials in power. It provides accountability and responsibility in the administrative functioning. Also there are specified laws and rules and regulations that guide and direct the internal administration relations like hierarchy,division of labour,etc.
There would be an upset in the balance in areas such as police law, international trade, manufacturing, environmental, taxation, broadcasting, immigration, and transportation,etc. Thus,he rejected the idea of Administrative Law that was akin to Droit Administratif or that which was being practised in France and other European countries where there are seperate rules for administrative officials as he believed that such an arrangement would lead to a perpetual risk of excessive application of authority with people having no window to their grievance redressal.
Droit Adminstratif practised the system of: a One rule for regulating the behaviour of individuals of society and one rule for regulating the members of State and administration. These are distinct and not overlapping neither are superior or inferior to each other. They are equals. In case they ever overlap then the final decision will be taken by a special court constituted for this purpose. This was done so that administrative and State officials have more autonomy in dealing with situations and contingencies that arise in execution of administrative duties and which would not be easily understood by the normal law and courts.
Thus,Dicey believed that there should not be such a separation where there is one law that governs the administrative and political officials Administrative Law and one that governs society and its people civil and criminal law and advocated the rule of law as prevalent in UK where everybody was equal in the eyes of law and only one common law governed each and every individual.
But,he was heavily criticised for this later as he did not take into account that even the Crown in UK was immune from civil and criminal proceedings,thus,there was no rule of law or equality here. Also he is criticised for not taking into account the future issues that would arrive in administration due to modernisation and complexity like delegated legislation,etc.
Delegated legislation was very much a part of UK administrative setup as well as the system of administrative adjudication through tribunals that was contrary to Dicey's rule of law stating only one law making body which is the legislature and it being applied everywhere universally and interpreted by the judicial courts as and when required for each and every one.
So,therefore UK was practising administrative law already. Marx also criticised Dicey's rule of law concept by saying that it promotes inequality instead of equality because if you treat underprivileged and poor equally with rich then there is going to be a huge disparity that will only expand with time.
Modern day concept of rule of law has been given a very broad meaning by providing opportunities to unequal people in order to equal themselves with the others like reservation,etc.
Law is created by the legislature or other legal institutions and is not to differentiate but enable unequals to become equals and the last word on the law would be that of the Independent judiciary.
And all this together only will lead to the rule of law. The legislature provides the broader framework of the law with necessary objectives and directions and the technical details are left to the executive to fill in.
It is also referred to as subordinate legislation. And last but not the least it provides time to the legislature to devote and manage their time in dealing with other important issues as well as minute rule writing will take up a lot of time.
Thus it is properly defined. This can become reversed in order because in the normal positive delegation there are areas specified that the administration can make laws and that means indirectly that the other areas it cannot make so it becomes restricted whereas in the negative delegated legislation there are specified areas that the administration cannot do law making and that means indirectly all the other areas it is free to make laws.
This is also called Exceptional Delegated Legislation. This committee is known as the Committee of Subordinate Legislation that exists in both the Houses of Parliament. If the executive law is out of order with the enabling act or the Constitution then they are declared ultra vires. This is known as judicial review.
It states that there are some basic and fundamental powers of the legislature that can never be delegated and if that is done then it will lead to chaos and so the executive is only given the task to make laws for technical purposes under the guidance and directions of the parent or original law established by the legislature.
It is just informative. This procedure is followed when the enabling or parent act is being considered to come into force and then passed on to the executive to fill in the minute and technical details.
Through these procedures the drafting is made clear and to the point explanation is there thus leaving no room for any doubt in the minds of the receiver. Through these discussions the negative aspects are removed and only then it comes into force. Once the law is finalised it should be notified in the local gazette so that the public is informed. It came into response to modern day changes. It is a settlement of disputes related to administrative functioning by an administrative tribunal an executive body that may act as quasi Judicial body.
Issues or disputes arising during administrative functioning is done by this mechanism where the administrative machinery acts as an adjudicator instead of going to the courts of law directly so these disputes are settled speedily as the adjudicators are administrative officials and know the specific details and understand the administrative process and thus give relevant and unbiased decisions.
This helps in non-stagnation of policy work and thus benefits the people at large. It is flexible in its decisions as it looks at the broader angle of public policy and its benefit whereas a court of law only looks at rigid laws and nothing else. According to many theorists it is organised lawlessness and is contravening to the principle of natural justice as the panel of adjudicators here are administrators and not independent judges, who definitely happen to be one of the parties involved in the dispute.
But,due to its benefits mentioned above it still continues until a better alternative is found. This was done in pursuance of the amendment of Constitution of India by Articles A.
Includes service matters involving central services,state matters and civilian matters excluding military and civil matters.
All these tribunals are setup and appointments are made by the president. The chairman is appointed by the president on advice of the Chief Justice of India and has to be a judge of a High Court or should have acted as a two years vice-chairman of the central administrative tribunal. The vice chairman of the CAT should be a secretary of govt of India or any other post with equivalent pay for two years or otherwise additional secretary or post with equivalent pay for a period of not less than 5 years.
For members of the CAT the person should be additional secretary of govt of India or equivalent pay for 2 years or joint secretary or with an equivalent pay post for a period not less than 5 years. The members can only be removed on grounds of proven misbehaviour by the president. For the chairman and vice chairman are given secure tenure of 5 years or retirement on 65 years whichever is earlier.
For administrative members 5 years or retirement upon 65 years whichever is earlier. For the judicial member of the CAT he should be 1st class magistrate.
An aggrieved person can approach high court appealing against the decision of CAT. Here the administration is both the litigant and judge in its own case as mostly the cases are against or relating to the very administrators who are sitting as judges there.
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Theorizing Administrative Law
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Canadian judges occasionally pause to reflect upon larger theoretical ideas that are normally only implicit in the reasons that they give. Dunsmuir was one of those occasions. Writing together for the majority of the Supreme Court of Canada, Justices Michel Bastarache and Louis LeBel prefaced their analysis of the issues in the case with a general statement about the constitutional foundations of judicial review in administrative law. Re-reading those passages today, they strike me as having a distinctively Diceyan tone. New Brunswick ,  1 S.