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