WELFARE STATE AND

ADMINISTRATIVE LAW

Presented ByHarikrishnan V

S2 MBA , CET SOM

INTRODUCTION

• The functions of a state • Legislative• Executive• Judiciary

• Legislative - Parliament • Executive - Prime

Minister, Cabinet , Government Departments & Civil Service

• Judicial - Supreme Court

WELFARE STATE

• Is a concept of government in which the state plays a key role in the protection and promotion of economic and social well-being of its citizens.

• Is based on the principles of equality of opportunity and equitable distribution of wealth.

• Under this system, the welfare and well-being of its citizens is the responsibility of the state.

• Such a government is involved in citizens lives at every level.• most of the modern democratic countries are 'welfare states‘

IS INDIA A WELFARE STATE?

• India was not a welfare state before independence.

• The Constitution makers were very much aware of India’s problems. That is why, they decided that India would be a welfare state.

• “sovereign socialist secular democratic republic”

• Accordingly, two specific provisions have been made in the Constitution to ensure social and economic welfare of the people of India – • Fundamental Rights • Directive Principles of State.

IS INDIA A WELFARE STATE?• A salient feature of the Indian constitution is the effort to establish a

welfare state. (Preamble makes this clear)• Article 38 of the Constitution reads: “The state shall strive to promote

the welfare the people by securing and protecting as effectively as it may, a social order in which justice-social economic and political-shall pervade all institutions of national life.” provides a broad framework for the establishment of the welfare state ideal.

• Protection and special care of the weaker sections of the community is provided Article 46 - to protect them from social injustice and all forms of exploitation.

• Reservation for the SC, ST and the other backward classes - to meet out social justice to them.

• As a welfare State, India is committed to the welfare and development of its people, particularly the vulnerable sections . This section of the society constitutes nearly 85% of the population

FUNDAMENTAL RIGHTS

• Embodied in Part III of the Indian Constitution .• Acts as a guarantee that all Indian citizens can and will enjoy civil liberties and basic rights. • These civil liberties take precedence over any other law of the land. • Some of these important rights are:

1. Right to equality2. Right to freedom3. Right against exploitation4. Right to freedom of religion:5. Cultural and Educational rights6. Right to constitutional remedies7. Right to life

• But this was not enough. Indian citizens also needed opportunities for economic and social development. That is why Part IV on Directive Principles of State Policy was included in the Indian Constitution.

DIRECTIVE PRINCIPLES OF STATE POLICY• Embodied in Part IV of the Indian Constitution• Are guidelines to the central and state governments of India• The governments must keep these principles in mind while

framing laws and policies to establish a just society in the country.

• The main aim of these principles is to create social and economic conditions under which all the citizens can lead a good life.

• Act as a check on the State; • Basic Objective is to create a “welfare” state.

TYPES OF DIRECTIVE PRINCIPLES

• The Constitution does not classify them under different heads, but for our better understanding, we may classify them under the following specific categories:

• Principles promoting social and economic equality; • Principles related to Gandhian thought; • Principles related to International peace and security; and • Miscellaneous Principles.

SALIENT FEATURES OF DPSP• The State, who is directed is defined in Article 12 (Article 36)• Directive principles are not enforceable by any court – but , it shall be the duty of the state

to apply these principles in the governance - Article 37• State has to secure a social order with economic, political and social justice - The state

shall strive to minimize the inequalities of income, status, facilities, opportunities etc. (Article 38)

• Article 39 says that state shall secure: • That all citizens (men & women) have equal right to means of livelihood.• That the ownership and control of the material resources are so distributed• they are best to sub serve the common good.• That the operations of the economic system don’t result in the concentration of wealth for some.• There is equal pay for equal work for men and women.• The health and strength of the workers (men & women) and children are not abused.• Children are given opportunities to develop in healthy manner and they are protected against

the exploitation.

THE DISTINCTION BETWEEN FUNDAMENTAL RIGHTS AND DIRECTIVE PRINCIPLES

Fundamental Rights• meant for the citizen• Individualistic in nature.• Enforceable in the courts.• seeks to establish political

democracy• enforceable by the courts•  more precise and concrete

Directive Principles Of State Policy• meant for the State• Socialistic in nature . • not enforceable in the courts.• seeks to establish social and

economic democracy.• not enforceable by the courts. (none

the less they are regarded as fundamental in the governance of the country.)

• are of wider significance

IS “WELFARE STATE” A UTOPIAN CONCEPT?• Some nations believe that creating a welfare state is the proper role of any central

government; few have managed to create efficient systems. They are unable to provide equitably for all their citizens, often leaving those most in need with the least. Rationing of goods and services also becomes a major problem when too many people depend on the welfare state.

• All advanced societies view helping people who literally cannot help themselves as decent, humane, and necessary. Yet, another serious issue with the welfare state philosophy is that many people who are capable of caring for themselves have no motivation to improve their lives when they can depend on the government to provide for them. This often breeds resentment amongst those who do work when they are forced to pay for people who do not, via ever-increasing taxes.

• Such a system can fuel class warfare and prevent equality instead of obtaining it. The concept of the welfare state may appear to be a good model on paper. The reality of creating a truly equitable state has thus far been impossible to achieve, however.

CONCLUSION AND OBSERVATION• The welfare state is such a convenient and elastic phrase• In the sphere of policies and legislation, it comes handy to the

political reformers to push their pet schemes and proposals and denounce those of the opponents

• To political parties and organs of fostering public opinion, it provides a cover for strategy and tactics to carry out several activities to attract the largest sections of voters

ADMINISTRATIVE LAW

• Is the law related with the administrative functions of the Government and its Departments.

• Definition : -

• Administrative law deals with the powers and functions of the administrative authorities , the manner in which the powers are to be exercised by them and the remedies that are available to the aggrieved persons when those powers are abused by these authorities.

ADMINISTRATIVE LAW

• Administrative law deals with :

1. The powers and functions of the administrative authorities

2. The procedure to be followed by these authorities in exercising such powers.

3. The remedies available to the aggrieved persons , when the authorities abuse the powers.

REASONS FOR THE GROWTH OF ADMINISTRATIVE LAW

• Change in the philosophy as to the role played by the state .• Inadequate judicial system –

• Judiciary was slow , costly, un expert , complex and formalistic.• Overburdening of judicial system- speedy disposal was not possible -

resulted in strikes and lock out in disputes between employers and employees.

• As a result , industrial tribunals and labor courts were established – they possessed techniques and expertise to handle these complex problems.

• Tribunals are not courts but executive authorities having judicial powers.

REASONS FOR THE GROWTH OF ADMINISTRATIVE LAW

• Inadequate legislative process – • The legislative process was also inadequate. Legislature had no

time and technique to deal with all the detailed rules and procedure.

• Detailed procedure made by the legislature were found to be defective and inadequate.

• All these resulted in the delegation of some legislative powers to the administrative authorities.

• When rule making is done by the executive branch it is known as delegated legislation.

REASONS FOR THE GROWTH OF ADMINISTRATIVE LAW

• Scope for experiments – • There is scope for experiments in administrative process• A rule can be made , tried for some time and if it is found defective it

can be altered or modified within a short period. • Thus , legislation is rigid in character while administrative rule making

is flexible.

REASONS FOR THE GROWTH OF ADMINISTRATIVE LAW

• Preventive measures -

• Administrative authorities can take preventive measures- licensing , rate fixing etc.

• They can also take effective measures for enforcement of preventive measures like, suspension, revocation or cancellation of licenses , destruction of contaminated articles etc. These are not generally available through regular courts of law.

• In most cases , such preventive actions prove to be more effective rather than punishing a person after he has committed a breach of any provision of law.

ADMINISTRATIVE LAW - SIGNIFICANCE• It is very significant because if it did not exist then the very

concept of having a democracy and a government to work for the people would be self defeating because then there would be no responsibility or accountability of the public officials to anybody and the administration would run arbitrarily thus creating a huge monster that would eat up the very system. There would be an upset in the balance in areas such as police law, international trade, manufacturing, environmental, taxation, broadcasting, immigration, and transportation,etc.

CHANGING ROLE OF THE STATE AND ITS IMPACT ON ADMINISTRATIVE

LAW• Increasing trend towards privatization - resulting in a shrinking of the role

of the State.• Some even argue : “Less Government is Good Government” (which

reminds us of the supporters of laissez-faire theory)• But , even as role of State as service provider is shrinking , its role as a

Regulator is retained and reinforced in a liberalized and privatized economy.

• Governmental interventions in the form of price fixation , laying down conditions of license , presence of nominees on the Board of Directors of private enterprises , and regulatory authorities with enormous powers (TRAI , Electricity Regulatory Commissions)• Exclusive power of Maharashtra Electricity Regulatory Commission to determine the

tariff was upheld by the Supreme Court in BSES Ltd. Vs M/s Tata Power Co.

DELEGATED LEGISLATION• Traditional theory of the separation of powers – law-making is

primarily the function of the legislature.• But a strict adherence to this has become inpossible in a modern

Welfare State due to :Volume of work – unable to cope up withBaffled by the complexity of the subject matter of legislation

• Therefore the legislature was compelled to delegate part of the law-making functions to the executive.

• The legislature does not abdicate its essential function but only authorizes a delegate to perform some subsidiary part of that function.

• This helps , atleast in theory , to keep alive the doctrine of separation of powers.

DELEGATED LEGISLATION

• The fact that the executive when making a law is acting as a delegate of the legislature has given rise to the term ‘delegated legislation’ , and the thought that such legislation is subordinate to the laws made by the legislature has resulted in another term “subordinate legislation”.

• Modern writers , however , prefer the term Administrative delegation to denote the exercise of law-making power by the executive.

DELEGATED LEGISLATION

• The term delegated legislation may be used in two senses :• Exercise of the legislative power delegated to a subordinate

authority by the legislature ; or• The subsidiary rules that are made by the subsidiary authority in

pursuance of the power delegated to it by the legislature.

In administrative law , we are more concerned with the exercise of law-making power by the administration , so the first meaning will be more applicable.

REASONS FOR DEVELOPMENT OF DELEGATED LEGISLATION

• Attributed partly to the development of Welfare State and partly to the need to cope with emergencies of various kinds.

• Following factors stress the necessity for delegation :• Pressure upon parliamentary time is great.• The subject matter of modern legislation is very often of a technical nature. • Impossible to foresee all contingenceies and local conditions for which

provisions must eventually be made.• Is valuable because it provides for a power of constant adaptation to

unknown future conditions without the necessity of amending legislation.

REASONS FOR DEVELOPMENT OF DELEGATED LEGISLATION

• Following factors stress the necessity for delegation :• This practice permits the utilization of lessons learnt from

experience.The advantage of this in matters such as Town Planning is too obvious.

• In a modern State , there are many occasions when there is a sudden need of a legislative action . For many such needs , delegated legislation is the only convenient or even possible remedy.

• It is vital for the Parliament to arm the executive Government in advance with almost all plenary powers to meet occasions of emergency which affect the whole nation.

CRITICISM OF DELEGATED LEGISLATION• The present criticism about delegated legislation is mainly based on

the following arguments :• Very wide powers may be delegated by the legislature. This will result in

unreasonable action by the executive and endanger civic and personal liberties.

• Control of delegated legislation by the legislature and the judiciary is not effective. There is a danger that the servant may be transformed into the master.

Important to note that these arguments do not challenge the necessity of delegation , but only emphasise the need to limit the power of delegation and also to introduce effective controls on the exercise of powers.

METHODS OF DELEGATION• Power to fill in details

• Most common type of delegation• Lack of time and difficulty to foresee further contingencies justify

this type of delegation.• The usual formula is to state in Act that the Govt may make rules

to ‘carry out the purposes of the Act’.• Also called skeleton legislation , because the legislature makes

the law in a skeletal form , and it is the executive which provides flesh and blood to this skeleton.

METHODS OF DELEGATION

• Power of Inclusion and Exclusion • the legislature makes the law , but the power to bring individuals ,

institutions or commodities within the purview of the stature or to exempt them is delegated to the executive.

• For e.g. The Minimum Wages Act , 1948 , applies to employments mentioned in the Schedule , and the Govt is empowered to add any other employment to the Schedule or to delete any entry from the Schedule , thereby excluding any particular employment from the application of the Act.

• If these are not followed , then the delegation is liable to be struck down.

METHODS OF DELEGATION• Power to Impose Tax

• Though taxing power as such is not delegated to the executive , various methods are now adopted which pass on the effective powers to impose tax to the executive . Generally done by 2 methods :

• A power to bring certain transactions or commodities under the tax or to exempt from tax is delegated. (similar to the power of inclusion discussed above)

• The power to fix the rates of tax is delegated to the executive . Generally the statute fixes a maximum limit and allows the executive to vary the rates within that limit.

METHODS OF DELEGATION• Power to Modify the Statute

• Considered the most drastic form of delegation .• The power to modify a statute is conferred on the executive for making

necessary adjustments while extending it to new areas. • The most widely criticized form of delegating amending powers is called

the Henry VIII Clause .• Here the legislature gives powers to the executive to make modifications

in the Act to meet any difficulties.• This clause can be found in India in many statutes .

METHODS OF DELEGATION• Power to Bring an Act Into Operation• Power to extend the application of the Act• Conditional Legislation

• Considered the most drastic form of delegation .• The power to modify a statute is conferred on the executive for making

necessary adjustments while extending it to new areas. • The most widely criticized form of delegating amending powers is called the

Henry VIII Clause .• Here the legislature gives powers to the executive to make modifications in

the Act to meet any difficulties.• This clause can be found in India in many statutes .