Welfare state and administrative law

1. WELFARE STATE
AND
ADMINISTRATIVE LAW
Presented By
Harikrishnan V
S2 MBA , CET SOM

2. INTRODUCTION
• The functions of a state
• Legislative
• Executive
• Judiciary
• Legislative - Parliament
• Executive - Prime
Minister, Cabinet , Government
Departments & Civil Service
• Judicial - Supreme Court

3. 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‘

4. 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.

5. 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

6. 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 equality
2. Right to freedom
3. Right against exploitation
4. Right to freedom of religion:
5. Cultural and Educational rights
6. Right to constitutional remedies
7. 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.

7. 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.

8. 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.

9. 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.

10. 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

11. 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.

12. 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

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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.

19. 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.

20. 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.

21. 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 with
Baffled 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.

22. 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.

23. 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.

24. 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.

25. 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.

26. 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.

27. 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.

28. 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.

29. 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.

30. 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 .

31. 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 .