Post on 04-Apr-2018
7/31/2019 Growth of Administrative Law in India
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Growth of Administrative Law in India
The history shows that man has always appealed to something higher than that which is
his own creation. In jurisprudence, Romans call it jus naturale, Hobbes, Lock and
Rousseau call it social contract, or natural law and the modern man calls it Rule of
Law.
The term Rule of Law of derived from French phase la principe de legalite which
means the principle of legality. It refers to a government based on principles of law and
not of man. Edward Coke is said to be the originator of this concept.
Diceys concept of Rule of Law contains three principles:
1. Absence of discretionary power in the hands of government officials
2. Person should not be punished except for the breach of law and
3. The rights must flow from customs and traditions of people.
The system of administrative legislation and adjudication has existed in India from a
very long time. The Britishers came to India for trade so the primary object of British
administration was to maximise profit. As the Britishers gained control over India the
efficiency of administration became the basic necessity to fulfil its basic purpose. The
executive at that time had overriding powers in the matters of justice.
The establishment of Supreme Court in Calcutta had inaugurated an era of independent
judicial administration but it came to an end with the passage of the Act of Settlement,
1781. After the Battle of Plassy 1757 a centralised administrative system was formed to
make laws. Thereafter many regulations were passed to take care of administrativejustice system, one among them is Cornwallis Code, 1793. The other one is Section 108
of Regulation Act 1822 which required administrative agencies to record facts,
evidence and decision. The court had power to control administrative actions but it
payed great respect and attention to the administrative decision. Till the end of British
rule the Indian Government was concerned with the more primary duties only. The
Indian Constitution was adopted on the policy of welfare state. Various sections in the
constitution such as Article 39 require the state to direct its policy towards adequate
means of livelihood. Article 47 talks about rising of the level of nutrition and standard
of living of its people, article 32 and 226 confers the power to High courts and Supreme
Courts to issue writs. Moreover the constitution itself provides for establishment of
administrative agencies. Article 315 talks about Public Service Commission in Indiaand article 329 talks about Election Commissions.
The concept of Rule of Law is not well defined legal concept. In the case of A.D.M
Jabalpur v. Shivkant Shukla ((1976) 2 SCC 521) an attempt was made to challenge the
administrative order during emergency on the ground that it violates the principle of
Rule of Law. Though the contention didnot succeed but this case made it clear that Rule
of Law can be used as a legal concept. In Kesavananda Bharti v. State of Kerala ((1973)
4 SCC 225) the Rule of Law was considered the basic structure of Indian constitution.
In Indira Nehru Gandhi v. Raj Narain(AIR 1975 SC 2299) judges held that Article
329A offends the concept of Rule of Law. The Court in case of Som Raj v. State of
Haryana((1990) 2 SCC 653) observed that the absence of arbitrary power is the firstpostulate of Rule of Law.
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The modern concept of Rule of Law is fairly wide. This concept was developed by
International Commission of Jurists. This concept implies that the function of
government in the society should be so exercised as to create conditions in which the
dignity of man as an individual is upheld. During the last few years the Supreme Court
of India has developed some fine principles of third world jurisprudence. This could be
seen by the extension of the Rule of Law to the poor and the downtrodden, the ignorantand the illiterate who form the bulk of humanity in India. This ruling was provided by
the court in response to a letter drawing attention to unjustified and illegal detention of
certain prisoners in jail for almost two to three decades in the case of Veena Seth v.
State of Bihar ((1982) 2 SCC 583).
The Courts in India have established Rule of Law society. The public administration
has effectively implemented rule of law. Today the administrative process has grown so
much that we are not governed but administered. The negative side of it is that respect
for law degenerates into legalism which from its very rigidity works as an injury to the
nation