Nature and Source of Administrative Rulemaking Power

By | December 20, 2019
Nature and Source of Administrative Rulemaking Power

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ABSTRACT

This article talks about the nature and sources of administrative rulemaking power. It begins with the emergence of administrative rulemaking power and its differentiation with administrative adjudication. Then moving on to its nature in brief and finally the sources from where administrative power is acquired.

INTRODUCTION

As the world started developing and growing and incorporating various complexities of structure, like the different sectoral changes in the economy, the emergence of new regulation and authority that goes hand in hand was needed as well. Law is the rule which prescribes the conduct of man and no power can be exercised by someone who doesn’t have the rational-legal authority.

Thus, new regulation and control had to be by law, and so as changes happened, new laws came into being. But these new laws needed a tougher administration and its agencies compared to the executive.

Thus “administrative law” emerged, which describes the rules of organization and procedure which govern the internal workings of executive offices. It also means the provisions of statutes conferring rulemaking and adjudicatory powers upon organizations in government outside the judiciary.[1]

Administrative rulemaking power is something that administrative agencies perform. To quote Bernhard Schwartz: “Rulemaking power is an outstanding feature of the modern administrative agency”.[2] Administrative rulemaking consists of two functions that are  “administrative legislation” and “administrative adjudication” which both fall part of administrative law.

When talking specifically about rulemaking it could be said that administrative rulemaking and other administrative functions differ from each other. Firstly, because rulemaking is in regards to the future, whereas other administrative functions are in respect to the present or past situations. Although even these administrative functions have a future binding, that controls future conduct.

Older theories state that the legislature translates policy into law by prescribing legal rights and duties, with regard primarily to the future welfare of the community and Courts decide specific rights and duties according to each case and its facts.

But legislation and adjudication, both cannot be distinctly separated as in some scenarios the courts also need to establish the content and rules upon which their judgment is based, but these rules and laws may be at times, vague and ambiguous, thus courts have to make them precisely applicable. Now this job of the courts becomes “legislative” thus showing that there cannot be a rigid distinction between the two.[3]

Jennings has defined Administrative Law as “the law relating to the administration. It determines the organization, powers and duties of administrative authorities”.[4]

Austin has defined administrative Law As the law, which determines the ends and modes to which the sovereign power shall be exercised. In his view, the sovereign power shall be exercised either directly by the monarch or directly by the subordinate political superiors to whom portions of those are delegated or committed in trust.[5]

Dicey in 19th century defines it as “a portion of a nation’s legal system which determines the legal status and liabilities of all State officials. The right and liabilities of private individuals in their dealings with public officials and specifies the procedure by which those rights and liabilities are enforced.” [6]

The United States Administrative Procedure Act defined administrative rulemaking as follows: “(1) rule-making, which is the formulation and promulgation of rules, formerly called regulations-usually general in nature and prospective in application; and (2) “orders,” which are actions of agencies in specific matters-usually individual in character
and retrospective in application”[7]

Thus administrative law is a weapon for bringing about harmony between power and justice and it essentially deals with the allocation of power and its limitation. The Indian Constitution rules over both these aspects and hence has provisions that act as sources of limitation that are discussed further.

NATURE

The Administrative law has evolved and advanced with its time but there remain certain aspects of its importance and nature that are common throughout. Administrative law is an important part of the welfare state of today.

It is not only important for the officials who come under it, but also for the students that study law and the state. It relates to individual rights and public necessities thus ensuring open, honest and transparent governance.

Administrative law is derived from the Constitution and is not functionally codified like The Indian Penal Code or other procedural laws. It is still overseen by the Courts of law and the law of the land. It can also be said that it is a judge-made law and a branch of public law since it is not rigid and is flexible and all-encompassing as its subject of study keeps changing and growing with time and changes in the systems of the state.

The application of Administrative law emerges when a person has been harmed by the arbitrary exercise or actions of an individual in power or by the use of public power. Thus it talks about the relationship between an individual with power.

The authority of the administrative agencies comes from constitutional law and statutory law, and these not only give them power but regulate it too. The transfer of power by legislature to administrative authorities, the exercise of power by these agencies and the judicial review of their administrative decisions, are all the factors that fall under its purview.

SOURCES

There are a few main sources of Administrative law in India, which are as follows:

  • Constitution of India

Various administrative organs derive their powers and functions from the constitution, such organs include the president, ministers, local government authorities, etc. The provisions in the Indian Constitution for administrative law are as follows: India has a federal type of government wherein there is a two-tier vertical separation of powers between the Central Government and the State Government, and each has been provided with its individual sphere of action and control by a division of all administrative, legislative and financial powers.

This relationship between Centre and State is very important and compared to other Constitutions has a very detail-oriented distinction. Unlike the British Constitution which is not codified as a single document but is spread over various statutes, acts, etc, Indian Constitution has written conventions for everything, for instance, the principle of collective responsibility of the Ministers, parliamentary procedure, etc.

The other essential part of the Constitution is the fundamental rights provided to each and every citizen of the country that are given in articles such as 14 to Article 18 and Article 21. This guards the diversity of the country and maintains harmony. And another essential component is the Directive Principles of state policy given under the Constitution which promotes social welfare.

The administrative details in the Constitution include provisions relating to citizenship, official languages, government services, etc. It is under this administrative law that government authorities make laws and execute them, and the legality of their actions is checked upon.

No legislature can make a law and no governmental agency can act, contrary to the constitution no act, executive, legislative, judicial or quasi-judicial, of any administrative agency can stand if contrary to the constitution.

  • Acts and Statutes 

The majority of administrative organs are statutorily framed. Laws applied by parliament, which may have the impact of making a regulatory organization, or indicate specific framework to be complied by the particular authority in practising it, can be viewed as a primary source for the study of administrative law. parliament, while conceding a specific power, is required to define some procedural framework with respect to how a specific power can be practised to guarantee transparency in an open system.

This should be possible, from one viewpoint, by enforcing a general procedural prerequisite in making any regulatory action, administrative principle making and managerial arbitration. then again, parliament for each situation may declare individual, specific to certain cases, rules pertinent in various circumstances. Statute law is an exclusive source of Administrative power.

The term covers both the Act of parliament, both public and private and delegated legislation. Delegated legislation means legislation by authorities other than the Legislature, the former acting on express delegated authority and power from the later. It is a proper way to maintain power by not giving it up fully, but practising it in limits and restrictions.

The delegation should not, in any case, be unguided and uncontrolled. For instance, Parliament and State Legislatures cannot leave their job of legislation that is to be exercised by them. But in some cases when proper instructions and procedures are laid down, they may delegate the non-essential legislative functions.

The essential legislative functions consist of making a law. It is to the legislature to formulate the legislative policy and delegate the formulation of details in implementing that policy. The power delegated to the Executive to modify any provisions of an Act by the order must be within the framework of the Act giving such power.

The power to make such a modification no doubt implies a certain amount of discretion but it is a power to be exercised in aid of the legislative policy of the Act and cannot travel beyond it, run counter to it, or certainly change the essential features, the identity, structure or the policy of the Act. Acts of parliament fall into two categories which may be conventionally termed constituent Acts and enabling Act, but some Acts deal with both constitution and power.

In short, we can say statues are one of the important sources of Administrative law. [8] Under the constitution of India, articles 245 and 246 provide that the legislative powers shall be discharged by the Parliament and State legislature. Further, Articles 13(3)(a) of the Constitution of India lays down that law includes any ordinances, order by- law, rule regulation, notification, etc. Which is found in violation of fundamental rights would be void.

  • Judicial opinion

Being to a great extent Judge-made, administrative law isn’t contained in any Administrative Law Act, like the Income Tax Act that consists of income tax law, etc. In any case, the central rule behind administrative law has consistently continued as before, in particular, that in a democratic system the individuals are preeminent, and consequently all State authority must be practised in people’s benefit.

This diminishes the odds of intervention with respect to the power and its arbitrariness, as the reasons and actions of authority are dependent upon legal examination by the higher courts or authorities. agency. Not many sources of administrative law are found in judicial opinions and it is also necessary to keep a distance from the generalisation of one judicial analysis for all other as the specificity of cases needs to be maintained.

But, there are also administrative issues that cannot be judicially reviewed. One of these is policy decisions of the administration or of the official power which usually ought not to be meddled with by the courts except if they are obviously violative of the statutes or very ambiguous.

  • Case law

These are decisions and precedents laid down by the Supreme Court that fall as basis as a source of administrative power. An example can be of In Tata Cellular v. Union of India [9] wherein the Supreme Court laid down the following basic principles relating to administrative law:
(1) The modern trend points to judicial restraint in administrative action;

(2) the Court does not sit as a court of appeal over administrative decisions, but merely reviews the manner in which the decisions were made;

(3) the Court does not have the expertise to correct administrative decisions. If a review of the administrative decisions is permitted it will be substituting its own decision without the necessary expertise, which itself may be fallible;

(4) a fair play in the joints is a necessary concomitant for the administrative functioning.

(5) however, the administrative decision can be tested by application of the Wednesbury principle of reasonableness and must be free from arbitrariness, bias or mala fides.

REFERENCES:

  1. AN ADMINISTRATIVE JURISPRUDENCE: THE RULE OF LAW IN THE ADMINISTRATIVE STATE by Kevin M. Stack
  2. ADMINISTRATIVE RULE-MAKING AND THE COURTS by BUGENE J. KEEFET
  3. Administrative Law And Judicial Review Of Administrative Action By Justice Markandey Katju

[1] The Nature of Administrative Law Author(s): E. Barrett Prettyman

[2] Schwartz, Administrative Law, 3rd ed. 1991, p. 167; similar Wade/Forsyth, Administrative Law, 7th ed. 1994, p. 859

[3] Procedure in Administrative Rule-Making Author(s): Ralph F. Fuchs

[4] The law and the constitution, 1959 by Ivor Jennings

[5] The Province of Jurisprudence Determined

[6] Introduction to the Law of Constitution (1885)

[7]  Administrative Procedure Act, 5 U.S.C

[8] Training package on Administrative Law by Dr Sunita Zalpuri Source: http://persmin.gov.in/otraining/UNDPProject/undp_modules/Administrative%20Law%20N%20DLM.pdf

[9] (1994) 6 SCC 651


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