Nature of Administrative Law
The study of administrative law is not an end but a means to an end. Its nature looks like something reconciliation because it reconciles liberty with power. Its nature is something of a public related adventure. Its nature is based on the state machinery and the modern state machinery is based on the welfare state. Therefore, administrative law nature is based on the welfare state. Source: Laxmi Prasad Kharel, ‘Principle and practice of Administrative Law: Nepali Perspective’, Kharel Kanuni Sewa Tatha Anusandhan Kendra, 2023, p.7
Nature of administrative law can be described as :-
- It is a branch of public law.
- It regulates the public authority or administration.
- It makes the rules and regulations to limit the jurisdiction of public administrators.
- Balance the power.
- Makes public authority accountable.
- Dispute resolution
Now the other nature of administrative law an be explained as below: -
1. It is a branch of public law and the branch of constitutional Law that explains the structure, power, duty, and function of administrative agencies and its officials.
2. Administrative law is related to administrative power and functions that provides more discretionary power to one side whereas it recommends the necessary measures, techniques and methods to control it. For example, the declaration of emergency by the president.
3. It determines the methodology of administrative functions.
4. It protects from the possible encroachment of rights of citizens that may arise in case of exercise of administrative powers by administrative authorities.
5. It provides necessary remedies in case of violation of rights of peoples by administrative authorities.
6. It aims to make administrative authorities accountable to the public.
7. It conducts judicial review over the actions of administrative authorities of the state.
8. It is not necessary to follow the previous decisions in administrative law; it has flexibility to decide according to the situation.
9. Administrative law is not based on the general principles like other laws; it has provisions of adjudications in specific situations. So, it includes other laws such as delegated legislation, administrative circular and regulations in addition to primary legislations made by parliament and it also studies the procedural aspect of administrative actions.
10. Administrative Law seeks to adjust the relationship between public power and personal Rights.
11. It is a demand of prudence that when sweeping powers are conferred on administrative organs, effective control mechanisms be also evolved so as to ensure that the officers do not use their power in an undue manner, or for an unwarranted purpose.
12. Jurisprudential Perspective
Scope of administrative law
The scope of administrative law remains widespread and comprehensive. The nature and scope of administrative law refer especially: -
- How much power should be delegated to administrative agencies?
- How much administrative discretion is too much?
- Does the doctrine of sovereign immunity extend too much power to government agencies?
Under the scope of administrative law there exist the following functions: -
- Legislative function
- Judicial function
- Executive function
(Source: Laxmi Prasad Kharel, ‘Principle and practice of Administrative Law: Nepali Perspective’, Kharel Kanuni Sewa Tatha Anusandhan Kendra, 2023, pp.8-9)
Sources of administrative law
The constitution of a country is the principal source of determining the type and climate of administrative law. In England the whole of administrative law is treated as a branch of constitutional law.
Nepal, India and other common law countries have tried to promulgate administrative law through their parliament made statutory laws., delegated legislation delegated by the parliament, the judicial decision rendered by the court, the report submitted by the different committees and the order issued by the administrative officers. Some of the major sources of administrative law are listed below: - (Source: Laxmi Prasad Kharel, ‘Principle and practice of Administrative Law: Nepali Perspective’, Kharel Kanuni Sewa Tatha Anusandhan Kendra, 2023, pp.11-20)
- Royal prerogatives.
- Report of the committee instituted under the parliament.
- Statute: The Civil Rights Act 1956, Local Administration Act 2028, CIAA Act 2048 are some of the important sources of administrative law.
- Precedents: Indira Gandhi V. Rajnarayan, Ram Jawya V. State of Punjab
- Opinions, conception and publication of administrative law concerned jurist and scholars
- Reports of the administrative committee: Butch Committee in Nepal to study the existing organization of the civil administration in Nepal published the report in 1953.
- Constitution
- Delegated legislation: Rules, regulations, by-laws, order, etc.
- Other sources of Administrative Law: other laws related to public administration such as Civil Service Act 2049, Civil Service Regulations, Judicial Service Reform Commission 2040.
Generally, the sources of Administrative law is understood as the following points:-
- Constitution.
- Act/Rules
- precedents
- Ordinance
- Delegated legislation
- By laws
- Tradition and Customs
In the book of Dr. Rega Surya Rao, ‘Lectures on Administrative Law’, Asia Law House, 2008, pp. 5-7, the main sources of administrative law have been listed as: -
1.Constitutional Law
2.Precedents or judicial precedents or case law
3. Statutes and delegated legislation
4.Ordinances by the president and governors
5.Reports of the committees and commissions
