Constitutional law and administrative law are both important legislations that govern the various affairs of the State. To early English jurists there was virtually no difference between administrative law and constitutional law.[i] According to Keith, “it’s logically impossible to distinguish administrative from constitutional law and all attempts to do so are artificial.”[ii] Some jurists like Felix Frankfurter went a step ahead to call this exercise illegitimate and exotic.[iii]
The perplexity cropped up in United Kingdom due to lack of a written constitution. Due to lack of clarity, we can refer to jurists to settle the distinction and relationship between the two branches of law. Holland says that constitutional law describes the various organs of the government while administrative law describes in motion. The executive and legislative structure comes in the purview of constitutional law and their working is governed by administrative law.[iv]
Another view, propounded by Ivor Jennings, says that administrative law deals with the organisation, functions, powers and duties of administrative authorities while general principles dealing with organisation, powers of various organs and their mutual relationship is dealt with by constitutional law.[v] Locke held that an individual can do anything but what is forbidden by law while state may do nothing but what is authorised by law.[vi]
In spite of the various definitions given by several jurists, there exists a grey area between the two laws. In India[vii] this exists in the form of constitutional mechanism for governing the administrative authorities and keeping them in check- articles 32, 136, 226, 227, 300 and 311, study of administrative agencies commissioned by the Constitution, constitutional regulations for delegation of legislative powers and restriction of administrative actions.
Constitutional law vis-a-vis administrative law
The confusion between administrative law and constitutional law in England is meagre due to an unwritten constitution. Dicey[viii] observed the rules which were part of constitutional code in other countries, flowed from ordinary law in England. However, in countries with a written constitution there was an additional source of control over administrative action. A written constitution yields control over all the organs of the body politic.[ix] While one may attempt to distinguish the scope of administrative law from that of constitutional law but it’s impossible to dissociate them both.[x]
Executive action in India is protected in several ways.[xi] For instance subordinate legislation is expressly brought within the fold of Article 13 by including orders, bye-laws, regulations and notifications within the definition of law. But it would be struck down if it’s ultra vires or in violation of the Fundamental rights.[xii] A purely administrative action having no statutory basis is void in case it breaches fundamental rights.[xiii] Therefore the court can strike down any administrative instruction or policy if it operates in prejudice of the constitutional scheme.
In case of statutory administrative actions there is an additional constitutional ground upon which its validity may be challenged, especially if the legislative statute under which administrative order has been made is in itself unconstitutional.[xiv] Where the order in question is quasi-judicial, it may be challenged on the orders, inter alia, that the order is unconstitutional and that the legislative provision under which it has been made is also against constitutional scheme.[xv] Constitution law, thus, is projected into the judicial review chapter in administrative law. It can be observed that constitutionality of an administrative provision concerns both administrative law and constitutional law, unlike statutes.[xvi]
The objective of common law doctrine of rule of law and a written constitution is regulation and prevention of arbitrary exercise of power by government’s administrative agencies.
Administrative law vis-a-vis constitutional law
Administrative law is a by-product of intensive of government. During the last century the definition and function of Government has changed in leaps and bounds. The development of administrative process and the administrative law has become the cornerstone of modern political philosophy.[xvii] Now the Government not only defines people’s rights but also redress their problems. The rights are protected by the policies formulated by the Executive and implemented by the administrative wing of the government. Ergo, there arises a nexus between administrative law and constitutional law where the former implements policies mandated accordingly to preserve the sanctity of principles and rights laid down by the latter.[xviii]
Any definition of administrative law doesn’t distinguish between constitutional and administrative law. The definitions being too wide also deal substantive aspects of the law such as public health, housing, town planning, etc. And administrative deals with these aspects since the Constitution has embedded the principle of a welfare state and the State can implement policies veraciously in favour of this principle.[xix] Prof S P Sathe observes[xx] that constitutional law is inclusive of administrative law and all the concerns of administrative law are also the concerns of constitutional law. It can therefore be understood that constitutional law has a wide ambit with administrative law occupying a large part of it. Therefore, constitutional law is the genus and administrative law is the species.
Scope of administrative law: a constitutional pint of view
The Constitution is the grund norm when it comes to legislations.[xxi] It determines the powers of the different wings of the government and protects the citizens against any violation of their rights. The courts interpret the Constitution, resulting in the execution of the aforesaid functions of the Constitution. It also unbridled powers in the legislature, thereby preventing it from delegating essential legislative powers arbitrarily.[xxii] The validity of very executive action is also seen in reference to power given to it by the legislation. Constitutional law enjoys the status of prime moderator monitoring the three branches of the government and in turn installs a yardstick upon which the extent of rules and policies made can be measured.[xxiii]
Hence, it’s indisputable that constitutional law plays a critical role of establishing guidelines for the scope of flow of administrative action. Hence there exists a very unique relationship between two such distinct laws yet intermingling laws.
The relationship between constitutional and administrative law is not clearly marked out but the fact remains the two laws overlap in several aspects. There exists a relationship which is fundamental to both. The separate existence of administrative law has never been disputed, however if one were to represent the two branches of law in a venn diagram, there would a common area known as the watershed area in administrative law. It includes the whole control mechanism provided in the Constitution to deal with administrative law such as, articles 32, 136, 226, 227, etc. It includes directives from the State under part IV and constitutional limits on delegation of powers.
Edited by Shikhar Shrivastava
Approved & Published – Sakshi Raje
[i] Felix Frankfurter, The Task of Administrative Law, 75 U. PA. L. REV. 614, 616 (1927).
[ii] Basu, D.D., Administrative Law (6th Edn., 2004), p. 10.
[iii] Relationship between constitutional law and administrative law https://www.lawteacher.net/free-law-essays/administrative-law/relationship-between-constitutional-law-and-administrative-law-administrative-law-essay. (13th August 2019, 9:45pm)
[iv] Williams David, Law and Administrative Discretion•, 2 Ind. J. Global Legal Stud. 191, p. 192 (1994)
[v] Wade, H.R. & Forsyth, C.F., Administrative Law (7th Edn., 1995), p. 5.
[vi] Abhishek Dubey, The Relationship between Constitutional Law and Administrative Law: An Indian Perspective http://www.supremecourtcases.com/index2.php?option=com_content&itemid=54&do_pdf=1&id=6769 (13th August 2019, 9:00pm)
[vii] Sathe, S.P., Administrative Law (7th Edn., 2004), p. 7.
[viii] Dicey, Law of Constitution (10th Edn., 1885), p. 203.
[ix] Jenings, Ivor, Law and The Constitution (5th Edn., 1995), p. 217.
[x]Aberham Yohannes And Michael G Desta, Constitutional law and Administrative Law, https://www.abyssinialaw.com/component/k2/item/294-constitutional-law-and-administrative-law (13th August 2019, 9:00pm)
[xi] State of Bombay v. Bombay Education Society, (1955) 1 SCR 568
[xii] Chandrakant Krishnarao Pradhan v. Jasjit Singh, AIR 1962 SC 204
[xiii] Rashid Ahmed v. Municipal Board, Kairana, 1950 SCR 566
[xiv] State of Mysore v. H. Srinivasmurthy, (1976) 1 SCC 817, para 18.
[xv] Ram Narayan Singh v. State of Delhi, 1953 SCR 652
[xvi] Thakkar, Justice C.K., Administrative Law (1992), p. 6.
[xvii] Sathe, S.P., Administrative Law (7th Edn., 2004), p. 12.
[xviii] Suk Das v. Union Territory of Arunachal Pradesh, (1986) 2 SCC 401
[xix] A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602
[xx] Sathe, S.P., Administrative Law (7th Edn., 2004), p. 12.
[xxi] Wade, H.R. & Forsyth, C.F., Administrative Law (7th Edn., 1995), p. 5.
[xxii] In re Delhi Laws Act, 1912 1951 AIR 332
[xxiii] Sunil Batra (II) v. Delhi Admn., (1980) 3 SCC 488