Critically Define Administrative Law and Discuss Its Role in Promoting Good Governance

1. Introduction

Administrative law is that branch of public law which deals with the organisation, powers, functions, duties and liabilities of administrative authorities, and with the remedies available to citizens against the abuse or misuse of those powers. It is the body of law created by and applied to governmental agencies in the exercise of their delegated authority. In simple terms, administrative law is the law relating to administration — it governs how the executive branch and its agencies act, and how their actions may be controlled.

2. Definitions of Administrative Law

(a) Ivor Jennings: "Administrative law is the law relating to administration. It determines the organisation, powers and duties of administrative authorities."

(b) A. V. Dicey: In his classic Law of the Constitution, Dicey treated administrative law as the body of rules which regulate the relations between the citizens and the administrative authorities, and which are enforced by special administrative courts. He used the term in a narrow and somewhat negative sense, associating it with the droit administratif of France, which he considered contrary to the rule of law.

(c) Kenneth Culp Davis: "Administrative law is the law concerning the powers and procedures of administrative agencies, including especially the law governing judicial review of administrative action."

(d) Wade and Phillips: "Administrative law is the law relating to the control of governmental power."

(e) Black's Law Dictionary: "The body of law that governs the administration and regulation of government agencies at both the federal and state levels."

3. Critical Analysis of the Definition

A critical reading of these definitions reveals both the scope and the limitations of administrative law:

1. Narrow vs. wide meaning. In the narrow sense, administrative law deals only with the powers and procedures of administrative agencies and judicial review of their action. In the wide sense, it also includes the organisation of the executive, local government, public corporations, and the substantive law administered by these bodies. Modern scholarship favours the wide view.

2. Dicey's misconception. Dicey's identification of administrative law with special administrative courts and his belief that it was incompatible with the rule of law has been criticised. Administrative law exists in England too, though enforced by ordinary courts. His view confused the substance of administrative law with the machinery of its enforcement.

3. Law relating to administration vs. law administered by administration. Jennings' definition is sometimes criticised as too broad, because "law relating to administration" may include the whole of constitutional law. A more precise definition limits administrative law to the control of administrative action.

4. Dynamic character. Administrative law is not static. As the functions of the State expand — from the regulatory State to the welfare State — administrative law grows correspondingly. Hence any definition is necessarily descriptive of a moving body of rules.

5. Distinction from constitutional law. Constitutional law deals with the structure of the State and the distribution of sovereign power; administrative law deals with the exercise of that power by administrative authorities. Constitutional law is concerned with who governs; administrative law with how governance is carried on.

Thus, critically defined, administrative law is that branch of public law which regulates the organisation, powers, functions and procedures of administrative authorities, and provides for control of and remedies against their action, so as to keep administration within the bounds of law.

4. Role of Administrative Law in Promoting Good Governance

Good governance rests on the pillars of rule of law, accountability, transparency, participation, responsiveness, equity and efficiency. Administrative law contributes to each of these in the following ways:

(a) Ensuring the Rule of Law

Administrative law subjects the executive to law. The doctrine of ultra vires ensures that an administrative authority cannot act beyond the powers conferred by the statute. Every administrative action must have a legal basis. This prevents arbitrary rule and upholds the supremacy of law — the foundation of good governance.

(b) Controlling Arbitrary Power

Through judicial review, administrative law checks abuse of discretion. Courts intervene where discretion is exercised mala fide, for an improper purpose, on irrelevant considerations, or without application of mind. This protects citizens from capricious exercise of official power.

(c) Promoting Accountability

Administrative law provides multiple mechanisms of accountability:

• Judicial control through writs (certiorari, mandamus, prohibition, quo warranto, habeas corpus) and ordinary suits.
• Legislative control through parliamentary committees, questions, and motions.
• Administrative control through departmental hierarchy, tribunals, and ombudsman-type institutions.
• In Nepal, the Commission for the Investigation of Abuse of Authority (CIAA), the National Human Rights Commission, and the Office of the Attorney General play significant roles.

(d) Ensuring Transparency and Openness

Rules relating to reasoned decisions, publication of rules, access to information, and the right to be heard compel administration to act openly. The Right to Information Act, 2064 (2007) in Nepal is a direct product of this administrative-law concern. Transparency reduces corruption and builds public trust.

(e) Guaranteeing Natural Justice

The principles of natural justice — audi alteram partem (hear the other side) and nemo judex in causa sua (no one shall be judge in his own cause) — are the core of procedural fairness. Administrative law enforces these principles, ensuring that citizens are treated fairly before adverse administrative action is taken.

(f) Providing Effective Remedies

Administrative law gives the aggrieved citizen a remedy: writs, appeals, revision, review, and compensation. The availability of remedy makes rights meaningful and prevents the administration from becoming a law unto itself.

(g) Promoting Efficiency and Responsiveness

By prescribing procedures, time limits, and reasoned decision-making, administrative law makes administration efficient, predictable, and responsive to public needs. Administrative tribunals and specialised bodies provide speedy, expert justice.

(h) Balancing State Authority and Individual Rights

Administrative law strikes a balance between the need for effective administration and the protection of individual liberty. This balance is essential for participatory and inclusive governance.

(i) Strengthening Constitutional Values

In Nepal, administrative law derives its strength from Article 18 (right to equality), Article 20 (right to justice), Article 27 (right to information), and Article 238 (CIAA) of the Constitution of Nepal. By enforcing these values, administrative law operationalises constitutional promises in day-to-day governance.

5. Limitations and Challenges

Despite its contributions, administrative law faces challenges:

• Excessive delegation of legislative power weakens parliamentary control.
• Judicial review is costly, delayed, and inaccessible to the poor.
• Corruption and political interference undermine administrative accountability.
• Lack of legal awareness among citizens limits the use of remedies.
• Overlapping jurisdictions among courts, tribunals, and commissions create confusion.

These limitations suggest that administrative law alone cannot guarantee good governance; it must be supported by political will, institutional capacity, and an active civil society.

6. Conclusion

Administrative law is the legal framework that keeps administration within the bounds of law and makes it answerable to the people. Critically understood, it is not merely a body of procedural rules but a constitutional instrument for controlling power, protecting rights, and ensuring fairness. Its role in promoting good governance is indispensable: it upholds the rule of law, ensures accountability and transparency, guarantees natural justice, provides remedies, and balances authority with liberty. In Nepal, where administrative discretion is wide and corruption remains a concern, a strong and effectively enforced administrative law is a precondition for good governance. Hence, administrative law and good governance are complementary — one provides the legal means, the other the desired end.

Rule of Law

The rule of law is the principle that every person and institution in a country — including the government itself — is subject to the law, and that no one is above it. It means the state is governed by law, not by the arbitrary will of rulers. The concept was classically explained by A.V. Dicey in his work Introduction to the Study of the Law of the Constitution (1885), who gave three meanings:

1. Supremacy of law — no person can be punished except for a breach of law established before the ordinary courts; there is no arbitrary or discretionary power.
2. Equality before law — all persons, officials and private citizens alike, are subject to the same ordinary law and the same ordinary courts.
3. Predominance of the legal spirit — the general principles of the constitution (rights and freedoms) are the result of judicial decisions, not merely of written declarations.

Modern writers add other elements: an independent judiciary, free and fair elections, accountability of the executive, protection of fundamental rights, and transparency in governance. The rule of law is thus the foundation of constitutionalism and democracy.

Separation of Power

The doctrine of separation of power, associated with Montesquieu (The Spirit of the Laws, 1748), holds that the three organs of government should be kept distinct:

• Legislature — makes laws;
• Executive — implements laws;
• Judiciary — interprets laws and settles disputes.

Concentrating all three powers in one organ leads to tyranny; hence "power should be a check to power." In practice, no state follows this doctrine absolutely — there is always some overlap — so the real safeguard is checks and balances, under which each organ limits and supervises the others.

Separation of Power and Check and Balance in Nepal

Nepal follows a federal democratic republican system with a parliamentary form of government under the Constitution of Nepal, 2072 (2015). The Constitution distributes state power among three levels — federal, provincial and local — and within each level among the three organs.

Constitutional basis:

• Article 76 — the executive power of the federal government vests in the Council of Ministers.
• Article 83–88 — Parliament (House of Representatives and National Assembly) is the legislature.
• Article 126–127 — judicial power vests in the courts, with the Supreme Court as the apex court.
• Article 128 — the Supreme Court has the power of judicial review, i.e. it may declare any law inconsistent with the Constitution void.
• Article 132 — the Supreme Court may issue writs (habeas corpus, mandamus, certiorari, prohibition, quo warranto) for the enforcement of fundamental rights.

Checks and balances in operation:

Other balancing mechanisms:

• Constitutional bodies — Commission for the Investigation of Abuse of Authority (CIAA), Office of the Attorney General, Auditor General, Public Service Commission, Election Commission, National Human Rights Commission — act as watchdogs over the executive.
• Federalism — the division of power between the federal, provincial and local governments prevents over-centralisation.
• Fundamental rights (Part 3, Arts. 16–46) — enforceable in the courts, they limit state power and protect the individual.
• Free press and civil society — act as informal checks on all organs.

Conclusion: Nepal has constitutionally adopted the doctrine of separation of power in a flexible, parliamentary form, and has built an elaborate system of checks and balances through judicial review, no-confidence motions, impeachment, constitutional bodies and federal division of power. The effectiveness of the rule of law in Nepal ultimately depends on the independence of the judiciary, the integrity of political institutions and the vigilance of the people.

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1. Supreme (Primary) Legislation vs. Delegated (Subordinate) Legislation

Supreme legislation is law made by the sovereign law-making body itself — in Nepal, the Federal Parliament (and, for their spheres, Provincial Assemblies) — in the exercise of its original, constitutionally conferred power. Delegated legislation is law made by an authority other than the legislature — the Executive, a Minister, a department, a local body or any other body — to whom the legislature has delegated its law-making power, usually to make rules, regulations, by-laws, orders, notifications or schemes for carrying out the purposes of a parent Act.

Key point: Delegated legislation is ultra vires (beyond power) and void if it conflicts with the parent Act or the Constitution; supreme legislation enjoys no such dependence.

2. Control Mechanisms of Delegated Legislation

Because delegated legislation is made by the Executive, which is also the body that implements it, unchecked delegation risks bureaucratic tyranny. Control is therefore exercised at three levels — parliamentary, judicial and executive/procedural.

A. Parliamentary (Legislative) Control

1. Procedural control — the parent Act prescribes the mode of making rules: prior publication in the Nepal Gazette, consultation with affected interests, or reference to a committee before framing.
2. Laying requirements — rules must be laid before Parliament; they may be subject to negative resolution (they stand unless annulled) or positive resolution (they take effect only if approved).
3. Scrutiny committees — a dedicated committee of Parliament examines rules for ultra vires, defective drafting, unexpected use of powers or retrospective effect. (In Nepal, the Committee on Legislation under the Federal Parliament performs this role.)
4. Direct control — Parliament may amend or repeal the parent Act, or annul the rules themselves.

B. Judicial Control

1. Ultra vires review — courts strike down rules that exceed the authority granted by the parent Act, whether substantively or procedurally.
2. Violation of fundamental rights — rules inconsistent with Part 3 of the Constitution are void under Article 133.
3. Procedural impropriety — failure to observe mandatory consultation or publication requirements renders the rules invalid.
4. Abuse of power — mala fide exercise, unreasonable or arbitrary rules, and sub-delegation beyond what the parent Act permits are quashed.
5. Remedies — writs of certiorari (quashing), mandamus (compelling performance), prohibition and declaratory relief.

C. Executive (Administrative) Control

1. Prior approval — rules framed by subordinate authorities often require approval of the Minister or the Cabinet.
2. Publication — compulsory publication in the Nepal Gazette as a condition of enforceability.
3. Drafting scrutiny — vetting by the Ministry of Law, Justice and Parliamentary Affairs.
4. Delegation limits — the parent Act may restrict sub-delegation (delegatus non potest delegare), preventing further transfer of rule-making power.

D. Other Controls

• Public opinion and the press — publicity and criticism act as informal checks.
• Consultative bodies — advisory committees representing trade, labour or local interests before rules are finalised.

Conclusion: Delegated legislation is a practical necessity in the modern welfare state, but it must remain subordinate. The combined operation of parliamentary scrutiny, judicial review and procedural safeguards keeps it within the bounds of the parent Act and the Constitution.

The Supreme Court of Nepal has played a central role in the development of administrative law in the country. Since the concept of administrative law in Nepal is largely judge-made, the courts — especially the Supreme Court — have shaped its principles through constitutional interpretation and judicial review. Its contribution can be explained under the following headings:

1. Constitutional foundation of judicial review The Constitution of Nepal (2015), like earlier constitutions, empowers the Supreme Court and High Courts to issue writs — habeas corpus, mandamus, prohibition, certiorari and quo warranto — against any person or authority, including the Government. This constitutional mandate has allowed the Court to supervise administrative action and build a body of administrative law.

2. Development of the writ jurisdiction Through the exercise of writ jurisdiction, the Supreme Court has controlled administrative excesses:

• Certiorari has been used to quash decisions of administrative bodies taken without jurisdiction or in violation of natural justice.
• Mandamus has compelled public authorities to perform their statutory duties.
• Prohibition has prevented tribunals and quasi-judicial bodies from exceeding their jurisdiction.
• Quo warranto has been used to question the legality of appointments to public office.

3. Enforcement of the principles of natural justice The Court has repeatedly held that administrative and quasi-judicial authorities must follow the rules of natural justice — audi alteram partem (right to a fair hearing) and nemo judex in causa sua (no one should be judge in his own cause). Decisions violating these principles have been quashed, thereby incorporating natural justice into Nepali administrative law.

4. Control over delegated legislation The Supreme Court has examined rules, regulations and by-laws made by the executive under delegated authority. It has struck down subordinate legislation that is ultra vires the parent Act, violates the Constitution, or is unreasonable, thus establishing the doctrine of ultra vires in Nepal.

5. Recognition of administrative discretion and its limits The Court has accepted that administrative authorities need discretion, but has insisted that discretion must be exercised reasonably, in good faith, and for the purpose for which it was granted. Arbitrary or mala fide exercise of discretion has been invalidated.

6. Development of the doctrine of legitimate expectation and proportionality In several decisions, the Supreme Court has applied modern administrative law concepts such as legitimate expectation, proportionality, and fairness in administrative action, bringing Nepali administrative law in line with global developments.

7. Establishment of the right to be heard before adverse action The Court has repeatedly ruled that no person should be deprived of property or any right without being given an opportunity to be heard, strengthening procedural safeguards in administrative decision-making.

8. Supervision of tribunals and quasi-judicial bodies The Supreme Court has clarified the jurisdiction, powers and procedures of administrative tribunals and quasi-judicial authorities, and has corrected errors of law and jurisdiction committed by them.

9. Promotion of transparency and accountability Through public interest litigation (PIL), the Court has compelled administrative bodies to disclose information, follow due process, and remain accountable, thereby enriching the substantive content of administrative law.

10. Gap-filling through judicial precedents In the absence of comprehensive legislation on administrative law, Supreme Court precedents have filled the gap and provided guiding principles on delegated legislation, judicial review, natural justice, administrative discretion and remedies. These precedents now serve as the main source of administrative law in Nepal.

Conclusion The Supreme Court of Nepal has contributed to administrative law both as a guardian of the Constitution and as a law-maker through interpretation. By exercising writ jurisdiction, enforcing natural justice, controlling delegated legislation and disciplining administrative discretion, it has developed a distinct body of administrative law suited to Nepal's constitutional and legal system.

Short Notes

a. Need for Classification of Administrative Action

Administrative action is classified into quasi-legislative (rule-making), quasi-judicial (adjudicatory), and purely administrative (executive) functions. This classification is necessary for the following reasons:

1. Determining the applicable procedure — Quasi-legislative action requires prior publication and consultation; quasi-judicial action requires notice, hearing, and a reasoned order; purely administrative action requires no such formalities.
2. Fixing the scope of judicial review — Courts review quasi-judicial orders on grounds of ultra vires, violation of natural justice, and error of law, while purely administrative acts are reviewed on far narrower grounds.
3. Determining the availability of remedies — Certiorari and prohibition lie against quasi-judicial bodies; mandamus against administrative authorities refusing a duty; quo warranto against usurpation of office.
4. Fixing liability and accountability — It decides whether the official acts in a personal or official capacity and whether the State can claim sovereign immunity.
5. Preventing abuse of power — It ensures that a body exercising quasi-judicial power does not act arbitrarily and that delegated legislation stays within the parent Act.

Thus classification is the foundation of control over the ever-expanding administrative machinery.

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b. Nemo Judex in Causa Sua

Nemo judex in causa sua (no one shall be a judge in his own cause) is the second principle of natural justice, also called the rule against bias. It means that the authority deciding a matter must be impartial and must not have any personal, pecuniary, or official interest in the outcome.

Types of bias:

• Pecuniary bias — where the judge has a financial interest in the result.
• Personal bias — where the judge is related to, or hostile towards, a party.
• Official bias — where the judge is a party to the dispute or has already prejudged the issue.
• Policy bias — where the judge is committed to a particular policy or cause.

Effect: Any decision given in violation of this rule is void and liable to be quashed by certiorari. The rule is expressed in the maxim nemo debet esse judex in propria causa. In Nepal, Article 20 of the Constitution (right to justice) and the Administrative Proceedings Act, 2031 (1974) embody this principle. However, the rule does not apply where the disqualification is waived by the party with full knowledge, or where the interest is too remote.

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c. Judicial Control over Administrative Discretion

Administrative discretion means the freedom given to an authority to choose among alternatives while applying the law. Since discretion may be abused, the judiciary controls it through judicial review.

Grounds of control:

1. Ultra vires — acting beyond the powers conferred by the statute.
2. Abuse of discretion — acting mala fide, for an improper purpose, on irrelevant considerations, or ignoring relevant ones.
3. Violation of natural justice — denial of hearing or presence of bias.
4. Error of law — misinterpreting the statute or exceeding jurisdiction.
5. Failure to exercise discretion — acting under dictation, or mechanically without applying the mind.
6. Procedural impropriety — non-compliance with mandatory statutory procedure.

Means of control: Certiorari (quashing), mandamus (compelling performance of duty), prohibition (preventing excess of jurisdiction), quo warranto (questioning authority to hold office), and habeas corpus (release from illegal detention).

Limits: Courts do not review the merits of a decision or substitute their own judgment for that of the administrator; they only examine the legality, rationality, and fairness of the decision-making process. In Nepal, Articles 133 and 144 of the Constitution and the Administrative Proceedings Act, 2031 provide the framework for such review.

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d. CIAA and its Independence and Integrity

The Commission for the Investigation of Abuse of Authority (CIAA) is a constitutional anti-corruption body established under Article 238 of the Constitution of Nepal. It consists of the Chief Commissioner and four Commissioners appointed by the President on the recommendation of the Constitutional Council.

Functions: It investigates and prosecutes cases of abuse of authority, corruption, improper conduct, and irregularities by public officials; it may recommend departmental action, and it files cases before the Special Court.

Independence:

• Appointed through the Constitutional Council, with a fixed tenure of six years.
• Removal only on the same grounds and by the same procedure as a Supreme Court judge.
• Salaries and conditions of service cannot be altered to their disadvantage.
• Powers of search, seizure, and investigation are conferred directly by the Constitution.

Integrity: Commissioners must be persons of high moral character, without conviction for criminal offences involving moral turpitude. They are subject to a code of conduct and cannot hold any other office of profit. The CIAA's effectiveness, however, depends on adequate resourcing, freedom from political pressure, and public accountability — weaknesses often pointed out in practice.

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e. Relationship between Constitutional and Administrative Law

Constitutional law deals with the structure of the State, distribution of sovereign power among organs of government, and the fundamental rights of citizens. Administrative law deals with the organisation, powers, functions, and control of administrative authorities.

Relationship:

1. Constitutional law is the source and foundation of administrative law — administrative authorities derive their existence and powers from the Constitution and laws made under it.
2. Administrative law is a branch of constitutional law — it deals with the executive organ whose composition and powers are laid down by the Constitution. As Holland observed, constitutional law describes the various organs of government at rest, while administrative law describes them in motion.
3. Both control governmental power — constitutional law controls the government through fundamental rights and constitutional remedies; administrative law controls it through ultra vires, natural justice, and judicial review.
4. Overlap: Matters such as the Public Service Commission, emergency powers, and the Public Prosecution are treated in both.
5. Distinction: Constitutional law is the supreme law and a yardstick of validity; administrative law is subordinate legislation and delegated action, and its rules are subject to constitutional scrutiny. Constitutional law is mostly static; administrative law is dynamic and grows with the welfare State.

Thus the two are complementary — administrative law supplies the detailed machinery through which constitutional principles are actually realised in day-to-day governance.