Distinction between Administrative Powers

Administrative power is the power to administer or enforce a

law.  Administrative powers can be executive, legislative, or
judicial in nature.  Administrative power intends to carry the
laws into effect, practical application of laws and execution of
the principles prescribed by the lawmaker.
In Robertson v. Schein, 305 Ky. 528 (Ky. 1947), it was
observed that the authority to make rules and regulations to
carry out a policy declared by the lawmaker is administrative
and not legislative. 
In the case of Secretary of Agriculture v. Central Roig
Refining Co., 338 U.S. 604 (U.S. 1950), the power of an
administrative agency to make rules to carry out a policy is
administrative in nature.  The issue of an administrative
body’s authority presents a question of law and not a question
of fact
Powers and functions of administrative agencies are
interchangeable that means administrative powers can be
executive, legislative, or judicial in nature.  These agencies are
vested with the responsibility to interpret guidelines
consistently in order to avoid arbitrary and capricious results. 
Administrative agency decisions can be reversed as arbitrary
or capricious if the decisions lack fairness and if it fails to
indicate any course of reasoning and the exercise of judgment.
Difference between Legislative and
judicial actions
Saint Augustine remarked in his book The Confessions that
he understood time until someone asked him to explain it.'
That legislative and judicial power are conceptually distinct
may seem obvious, but explaining the difference between
them is not so easy.
Legislation is formulation of general rules which are to be
operative in future. There is generality about the application
of legislative provisions. Legislation gives new right or
disability. Law-making is the formulation of new policy.
Judicial function is contradictory to legislative function is
particularly based n the facts of a case and declares a pre-
existing right.
A judicial action is taken on hearing the parties and after
examining the evidence. But this is not so in case of
legislative action.
 There are two possible theories of the difference between the
legislative and judicial powers referred to by the Constitution,
and that both of them have surprising implications.
1. According to one view, the difference between the two powers is
wholly structural, in that it depends entirely on the functions of
government institutions. This account regards the difference
between legislative and judicial power as the difference between
the power to make legal rules and the power to apply them.
The surprising implication is that although the powers differ in
the form through which they are exercised, the legislative power
can bring about any legal effect and the judicial power can bring
about, including the alteration of legal positions established by
prior litigation. Some legal effects, however, can be achieved
only by legislation. If the two powers are understood wholly
structurally, the judicial power amounts to a sub-part of the
legislative power.
2. According to other view, the difference between the two powers
is substantive in that the legislative power is limited in its
operation with respect to some legal interests but not others. On
this account, the limits of legislative power relative to judicial
power are marked by legal interests that legislation may not
change but that may be operated on by judicial power pursuant to
preexisting rules. Some rights are vested. Those rights are
identified, not by distinguishing between making and applying
rules, but on other grounds.
Difference between Legislative and
administrative actions
It is difficult in theory and impossible in practical to make
distinction between Legislative and administrative actions.
But Committee on the Minister’s Power distinguished between
administrative and legislative action on the ground that where the
former is the process of performing particular acts or of making
decisions involving the application of general rules to particular
cases, latter is the process of formulating general rule of conduct
without reference to particular cases and usually for future
operation.
In the case of State of Haryana v. Ram Kishan, 1988, the
action of pre-mature termination of a mining lease was held
to be administrative, while in Union of India v. Cynamide
India Ltd, 1987, price fixation was held to be legislative
function. In this case, Supreme Court held that “With
proliferation of delegated legislation, there is tendency for the
line between legislation and administration to vanish into an
illusion.”
 Administrative Actions Legislative Actions
 The executive has only delegated  The Parliament has the supreme
legislative powers. legislative power.
 The legislative power of executive is  The legislative power of Parliament is
flexible. rigid.
 It functions according to its present day  It looks to future.
needs.  The legislation made by Parliament and
 The legislation made by executive State Legislatures always superior than
supplement the supreme legislation, the administrative legislation.
but it cannot supplant it.  Griffith and Street propounded two
 Griffith and Street propounded two
tests-
tests-
- (i) Institutional test-
- i) Institutional test;  Whatever is enacted by the Legislature
- (ii)The rest is administrative. is ‘legislation’.
 (iii) Specific cases.
- (ii) General application-
The power is given to executive to  The legislature is empowered for the
meet the ‘specific circumstance’ and purpose of ‘general application’, and
‘specific case’ and the rule made by such act or rule is called legislative rule.
such executive called executive power.
 Administrative Actions Legislative Actions
 Legislation made by the
If a legislation made by
administrators is against the Parliament cannot be interfered by
fundamental rights and against the Courts.
principles of natural justice, such   In rarest cases only sub-
legislation can be quashed by Courts delegation of legislative powers
by writ of Certiorari. can be made by Parliament.
Administrative powers can easily be  The legislation need not give
delegated and also sub-delegated. reasons. However, in every Act,
Administrator has to give reasons for the objects and reasons are
their decisions to the parties explained.
concerned, and mainly to their  All legislations shall necessarily
higher officers.
be published
All administrative actions need not
 Generally, if an exemption or
be published.
Generally, if an exemption or favor favor is made in favor of class of
people or entire area it is
is made in favor of an individual it is
administrative in nature. legislative in nature.
 Administrative Actions Legislative Actions
In administrative orders, In legislative actions,
there is need to follow the principles of natural justice are
principles of natural justice. not required to be followed.
Duty to give reason is must. Duty to give reason is not
must.
Distinction between Judicial, quasi-
judicial and administrative actions.
On the basis of following four requisites, a distinction is
made between judicial, quasi-judicial and administrative
actions-
 Presentation of case.
 If the dispute is a question of fact, the ascertainment of fact
by means of evidence given by the parties.
 If the dispute between them is a question of law, the
submission of legal arguments by the parties.
 A decision which disposes of the whole matter by applying
thee law to the facts.
A Quasi-judicial action involves all four determinants.
A quasi- judicial action involves the first two determinants. It
may or may not involve the third one but never involves the
last one.
In the case of administrative action, there is no legal
obligation to consider and weighs submissions and arguments
and or to collect any evidence or to solve any issue. The
grounds upon which the action to be based and the procedure
according to which the action is to be taken are left entirely
for determination to the discretion of the authority concerned.
Differences between Judicial Functions and
Quasi-judicial Functions
 Judicial Functions Quasi- Functions
As lies inter parties (a  A lis inter parties is not an
dispute between two parties) essential characteristic
is an essential characteristic feature of quasi-judicial
feature of judicial function. function.
The evidence shall be taken
The evidence is not taken
on oath.
on oath.
The rules of evidence, Civil
The rules of evidence,
Procedure Code, etc. are
strictly followed. C.P.C., Cr.P.C. etc. are not
The Court fee, as per rules, strictly followed.
are required to be paid. Court fee is not required to
The doctrines of precedents, be paid.
stare decisis etc. shall strictly These doctrines are not
be followed. followed strictly.
 Judicial Functions Quasi- Functions

 No man a judge in his own Sometimes, it may be

case. This maxim is strictly relaxed here.
followed. It is only a trapping of a
The court is the real forum court, but in reality it is not a
of judicial proceedings. court.
Difference between Administrative
and quasi-judicial Functions
There is a very thin line of difference between a Quasi-
Judicial Act and an Administrative Act. However, the
difference is important to understand as the nature of the act
performed by the Statutory Authority would determine the
rules that are to be followed. In absence of a lis, the only thing
separating a Quasi-Judicial Act and an Administrative
Act is the judicial procedure that is to be mandatorily
followed in a Quasi-Judicial Act.
 Quasi-Judicial Act
The dictionary meaning of the word quasi is “not exactly”.
Thus ‘quasi’ is something in between a Judicial and an
Administrative Function. In many cases, the Administrative
Authorities have been held be ‘quasi-judicial’ where there are
two contending parties and the authority-in-charge is
responsible to decide the rights of the parties. This definition
has also found favour in Cooper v. Wilson, (1937) 2 KB 309,
wherein it was held that-

“The definition of a quasi-judicial decision clearly suggests that

there must be two or more contending parties and an outside
authority to decide those disputes.”
Thus presence of a lis or two rivaling parties is a must in such cases
to hold the statutory authority as a quasi-judicial authority.
However, what would happen where there is no lis or rivaling
parties before the authority. Such a situation has been dealt with
in R v. Dublin Corporation, (1878) 2 Ir R 371, wherein the
meaning of the term ‘judicial’ was expounded. The Court said that
the term ‘judicial’ does not necessarily mean acts of a Judge or
legal tribunal sitting for the determination of matters of law, it may
also be an act done by a Statutory Authority by Application of Mind
and imposing liability of any kind or affects rights of the party in
question.

Similarly, in R v. Electricity Commissioners, (1924) 1 KB 171, it

was held that any legal body, that has authority to affect rights of
the parties and has an obligation to act wisely and judicially by
making an enquiry of some kind, could be termed as a Quasi-
Judicial Body and any such act done by that body is a Quasi-
Judicial Act.
The Hon’ble Supreme Court in the case of Province of Bombay v. Khushaldas
S. Advani, AIR 1950 SC 222, contemplated two situations relating to quasi-
judicial acts:

1. If there is a Statutory Authority that decides disputes between two parties who
oppose each other, determines their respective rights and has a duty to act
judicially, then decision of such an Authority is a Quasi-Judicial Act.

2. If there is a single party approaching a Statutory Authority that has the power to
prejudicially affect that party and the contest is between the authority proposing
to do the act and the party opposing it, then also the Final Determination of
the Statutory Authority, if it acts judicially, will be Quasi-Judicial Act.

Thus we see that presence of a lis is sufficient to hold an act of a Statutory

Authority as a Quasi-Judicial Act and even in absence of a lis, the said
Authority would be a Quasi-Judicial Authority if it is required to act judicially.
 Administrative Act

Before moving further, let us understand what an Administrative Act is. The

Black’s Law Dictionary (8th Edition) defines ‘Administrative Act’ as:

“An act made in a management capacity esp., an act made outside the actor’s usual
field (as when a judge supervises court personnel). An Administrative Act is often
subject to greater risk of liability than act within the actor’s usual field.”

The abovementioned definition describes the technical aspects of

an Administrative Act (E.g. Chief Engineer of a Government Department performs
administrative functions when he/she invites Tender for purchase of certain
equipments). What is important to remember is that an Administrative Act is purely
guided and dictated by policy and expediency whereas a quasi-judicial function is
required to be performed according to the rules. Another important distinction is that
a Quasi-Judicial Authority must act judicially i.e. the Authority must make an
enquiry by following the relevant procedure before arriving at a decision.
The duty to act judicially is not sacrosanct in performance of
an Administrative Act. The only responsibly while discharging
an administrative function is to follow the Principles of
Natural Justice unless the Statute especially prohibits so.
In State of Orissa v. Binapani Dei, (1967) 2 SCR 625, the
Hon’ble Supreme Court categorically stated that an
Administrative Order which involves civil consequences must
be made consistently with the Principles of Natural Justice.