It is impossible to attempt any precise definition of administrative law which can cover the entire range of administrative process. The American approach to administrative law is denoted by the definition by the definition of administrative law as propounded by Davis.
According to him, administrative law is the law concerning the powers and procedures of administrative agencies, including especially the law governing judicial review of administrative action. It does not include the enormous mass of substantive law produced by the agencies. An administrative agency, according to him, is a governmental authority, other than a court and other than a legislative body, which affects the rights of private parties through either adjudication or rule-making.
The emphasis in the definition is on judicial control of administrative agencies. But other control mechanisms, like the parliamentary control of delegated legislation, control through administrative appeals, and through the ombudsman type institution, are quite important and significant and need to be studied for a fuller comprehension of administrative law.
Dicey has defined administrative law as denoting that portion of a nation’s legal system which determines the legal status and liabilities of all state officials, which defines the rights and liabilities of private individuals in their dealings with public officials, and which specifies the procedure by which those rights and liabilities are enforced. The definition is narrow and restrictive in so far as it leaves out of consideration many aspects of administrative law, e.g., it excludes many administrative authorities, which strictly speaking, are not officials of the states such as public corporations; it also excludes procedures of administrative authorities or their various powers and functions, or their control by Parliament or in other ways, Dicey’s formulation refers primarily to one aspect of administrative law, i.e. control of public officials. Dicey formulated his definition with the droit administratif in view.
Sir Ivor Jennigs defines administrative law as the law relating to administration. It determines the organization, powers and the duties of administrative authorities. This formulation does not differentiate between administrative and constitutional law. It lays entire emphasis on the organization, power and duties to the exclusion of the manner of their exercise. Jennings’ formulation leaves many aspects of administrative law untouched, especially the control mechanism. The English administrative law does not lay so much emphasis on procedures of administrative bodies as does the American administrative law. Jennings; definition does not attempt to distinguish constitutional law from administrative law, and the former “in its usual meaning has a great deal to say concerning the organization of administrative authorities.
A satisfactory and a proper formulation to define the scope, content and ambit of administrative law appears to be s follows: “Administrative law deals with the structure, powers and functions of the organs of administration; the limits of their powers; the methods and procedures followed by them in exercising their powers and functions; the methods by which their powers are controlled including the legal remedies available to a person against them when his rights are infringed by their operation.
The term ‘Rule of Law’ refers to a government based on principles of law and not of men. In a democracy, the concept has assumed different dimension and means that the holders of public powers must be able to justify publically that the exercise of power is legally valid and socially just. Dicey developed this concept of ‘Rule of Law’. Dicey said ‘Rule of Law’ means, “the absolute supremacy of predominance of regular law as opposed to the influence of arbitrary power and excludes the existence of arbitrariness, or prerogative, or even wide discretionary authority on the part of the government.” According to him, wherever there is discretion there is room for arbitrariness. The term Rule of Law is used in contradiction to ‘rule of man’ and ‘rule according to law’. It is modern name for natural law.
The term Rule of Law can be used in two senses: (i) formalistic sense: and (ii) ideological sense. If used in the formalistic sense it refers to organized power as opposed to a rule by one man and if used in an ideological sense it refers to the regulation of the relationship of the citizen and the government and in this sense it becomes a concept of varied interest and contents.
Similarly, rule of law is also associated with the supremacy of courts. Therefore, in the ultimate analysis, courts should have the power to control administrative action and any overt diminution of that power is to be criticized. The principle implicit in the rule of law that the executive must act under the law, and not by its own decree or fiat, is still a cardinal principle of the common law system. It also serves as the basis of judicial review of administrative action for the judiciary sees to it that the executive keeps itself within the limits of law and does not overstep the same.
But there has been a negative side of the concept of rule of law as well. A grave defect in Dicey’s analysis is his insistence on the absence not only of “arbitrary” but even of “wide discretionary” powers. The needs of the modern government make wide discretionary power inescapable. Perhaps the greatest defect of the concept has been its misplaced trust in the efficacy of judicial control as a panacea for all evils, and somewhat irrational attitude generated towards the French system.
If the “rule of law” hampered the recognition of administrative law in England, the doctrine of “separation of powers” had an intimate impact on the growth of administrative process and administrative law in the United States. It has been characterized as the “principal doctrinal barrier” to the development of administrative law in the U.S.A. The doctrine of separation of powers is implict in the American Constitution. It emphasizes the mutual exclusiveness of the three organs of the government. The form of government in the U.S.A., characterised as the presidential, is based on the theory that there should be separation between the executive and legislature.
Of course, the doctrine of separation of power does not apply rigorously even in the United States and some exceptions to it are recognized in the Constitution itself. For instance, a bill passed by the Congress may be vetoed by the President, and to this extent, the President may be said to be exercising legislative functions. Again, certain appointments of high officials are to be approved by the Senate, and also the treaties made by the president do not take effect until they are approved by the Senate; to the extent, the Senate may be said to be exercising executive functions. This exercise of some functions of one organ by the other is justified on the basis of checks and balances, i.e. the functioning of one organ is to be checked in some measures by the other.
The doctrine of separation has influenced, and has itself been influenced by, the growth of administrative law. In the face of the new demands on the government to solve many complex socio-economic problems of the modern society, new institutions have been created and new procedures evolved by which the doctrine of “separation” has been largely diluted. But the character of administrative law itself has been influenced and conditioned to some extent by this doctrine. The strict separation theory was dented to some extent when the courts conceded that legislative power could be conferred on the executive and thus introduced the system of delegated legislation in the U.S.A., but, because of the separation theory, courts have laid down that the Congress cannot confer an unlimited amount of legislative power on an administrative organ, and that it must itself lay down the policy which the administration is to follow while making the rules.
In India, the doctrine of separation of power has not been accorded as constitutional status. Apart from the directive principle laid down in Article 50 which enjoins separation of judiciary from the executive, the constitutional scheme does not embody any formalistic and dogmatic division of powers.
Indian Constitution has not indeed recognized the doctrine of separation of powers in its absolute rigidity but the function of different parts of government have been sufficiently differentiated and consequently it can be very well said that our constitution does not contemplate assumption by one organ or part of the State of functions that essentially belong to another.
The Supreme court observed that although the doctrine of separation of powers hasn’t been recognized under the Constitution, the Constitution-makers have carefully defined the functions of various organs of the State. Legislature, executive and judiciary have to function within their own where demarcated under the Constitution. No organ can usurp the functions assigned to another. The functioning of democracy depends upon the strength and independence of each of its organs. Legislature and executive have all the powers including that of finance. Judiciary has power to ensure that the aforesaid two main organs of State function within the constitutional limits. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by legislature and executive. The only check on court’s own exercise is power is the self-imposed discipline of judicial restraint.
While exercising power of judicial review of administrative action, the court is not an appellate authority. The Constitution does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the Constitution lies within the sphere of legislature or executive, provided these authorities do not transgress their constitutional limits or statutory powers.
It is entirely a matter for the executive branch of the Government to decide whether or not to introduce any particular legislation. Of course, any member of the legislature can also introduce legislation but the court certainly cannot mandate the executive or any member of legislature to initiate legislation, however necessary or desirable the court may consider it to be. That is not a matter which is within the sphere of the functions and duties allocated to the judiciary under the Constitution.
When the Constitution gives power to the executive government to lay-down policy and procedure for admission to medical colleges in the State then the High Court has no authority to divest the executive of that power. The State Government in its executive power, in the absence of any law on the subject, is the competent authority to prescribe method and procedure for admission to medical colleges by executive instructions, but the High Court transgressed its self imposed limits in issuing the directions for constituting statutory authority. However, the selection procedure is always open to judicial review on the grounds of unreasonableness, etc.
In conclusion, “Doctrine of separation of Powers” in today’s context of Liberalization, privatization and globalization cannot be interpreted to mean either ‘separation of powers’ or ‘check and balance’ or principle of restraint’ but ‘community powers’ exercised in the spirit of cooperation by various organs of the State in the best interest of the people.