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Difference between Administrative Law and Constitutional Law

Constitutional Law
1. Constitutional law is genus.
2. Constitutional law deals with various organs of the state.
3. It deals with the structure of the state.
4. It is the highest law.
5. It gives the guidelines with regard to the general principles
relating to organization and powers of organs of the state, and their
relations between citizens and towards the state. It touches almost all
branches of laws in the country.
6. It also gives the guidelines about the international relations

Administrative Law
1. Administrative law is a species of constitutional law.
2. It deals with those organs as in motion.
3. It deals with the functions of the state.
4. It is subordinate to constitutional law.
5. It deals in details with the powers and functions of
administrative authorities.
6. It does not deal with international law. It deals exclusively the
powers and functions of administrative authorities
Introduction

The expression "Administrative Law" may mean two different things, namely, (a) law relating to
administration, and (b) law made by the administration. The latter would itself be of two kinds.
Firstly, it may be rules, regulations, orders, schemes, bye-laws, etc., made by the administrative
authorities on whom power to make such subordinate legislation is conferred by a statute. This
may be called rule-making. Secondly, certain administrative authorities have power to decide
questions of law and or fact affecting particular person or persons generally, i.e., adjudication.
Most of such powers are exercised quasi-judicially. Such decisions apply a statute or
administrative policy and instructions to specific cases. In doing so they create a body of
administrative law.

The most significant and outstanding development of the 20th century is the rapid growth of
administrative law. It does not, however, mean that there was no administrative law before this
century. For many years, in one form or other, it has very much been in existence. But in this
century, the philosophy of role and function of the state has undergone a radical change. The
governmental functions have multiplied by leaps and bounds. Today the administration is
ubiquitous and impinges freely and deeply on every aspect of an individuals life. Administrative
Law has a tremendous social function to perform. Without good system of administrative law
any society would die because of its own administrative weight like a Black Hole.
Administrative Law, therefore, becomes that body of reasonable limitations and affirmative
action parameters which are developed and operationalized by the legislature and the courts to
maintain and sustain a rule of law society.

Early English writers did not differentiated between administrative law and constitutional law
and, therefore, the definition they attempted was too broad and general. Sir Ivor Jennings defines
administrative law as the new relating to administration. It determines the organization, powers
and the duties of administrative authorities.1 This formulation does not differentiate between
administrative law and constitutional law. It lays entire emphasis on the organization, power and
duties to the exclusion of the manner of their exercise.

Administrative law relating to administration engages the attention of lawyers. Administration is


government or a department or an agency of the government. Under the Constitution of India the
powers of the state are divided between the Union (including the Union Territories) on the one
hand and the states on the other hand. Both the Union and the states are divided into three great
departments, namely, (1) the executive, (2) the legislature, and (3) the judiciary.

Administrative powers are exercised by the executive in either of two ways. It may act in
exercise of the executive power of the Union or of a state or it may act under the authority of a
specific statute or subordinate legislation. The exercise of all administrative powers is subject to
the rule of law. The legal control may be exercised by three authorities, namely, (1) the
legislature, (2) the higher executive, and (3) the judiciary. Administrative law concerns itself
mainly with the legal control of the government or of administrative authorities by the courts.

1Jennings, The Law and the Constitution(5th edn.217.


The primary function of administrative law is to keep governmental powers with in the limits of
law and to protect private rights and individual interests. As we have already noted, the scope of
activities of the government have expanded. Today the state is protector, provider, entrepreneur,
regulator and arbiter. Rule making power (delegated legislation) and an authority to decide
(tribunalisation) are described as effective as effective and powerful weapons in the armory
administration. As wade 2 observed, all powers have two inherent characteristics: i) they are not
absolute or unfettered, and ii) they are likely to be abused. Administrative law attempts to control
the powers of the government, and its instrumentalities and agencies. To achieve that objective,
administrative law provides an effective mechanism and adequate protection. It helps to strike a
balance between two conflicting forces: i) individual rights, and ii) public interest.

If we talk about Constitutional Law of India, then it is the supreme law of India. It lays down the
framework defining fundamental political principles, establishes the structure, procedures,
powers and duties of government institutions and sets out fundamental rights, directive principles
and the duties of citizens.

2 Wade & Forsyth, Administrative Law (2009) 4-5


The place of administrative law in the legal system

Broadly speaking, law in a modern state is divisible into public law and private law. The latter
concerns the. legal relations of individuals or groups of individuals or associations while the
former deals with the relations between the states on the one hand and the individual or groups of
individuals or associations on the other hand. Whenever a question arises as to the relationship in
various circumstances between the state and the individual, it falls in the domain of public law;
for instance, constitutional law, administrative law, criminal law, law of taxation etc., are all
branches of public law. The law of contracts, transfer of property, association etc., would be
private law particularly when the state is not a party to such private law relationships. While
private law is found to prevail in any organized society, public law presupposes a government
under the law. It is only when the structure of the state is formed by law and when the
government functions according to law that the relations between the state and the individual can
be governed by law which may be called public law. The basic structure of the state may be
called its constitution. Constitutional law, therefore, deals with the distribution of the power of
the state among its three branches and the rights and duties of the citizens of the state, vis-a-vis
the state. In a wide sense it would include administrative law.

With the abandonment of laissez-faire and advent of modern philosophy of a "welfare" state, the
administrative organ in almost all the democratic countries is performing large variety of
functions. The main task of the administrative organ is no longer merely policing and defense. It
has expanded to regulatory and managerial functions. The enormous increase in the functions of
the administration in the modern welfare state has gradually led to the treatment of
administrative law as a separate subject. For, the increase in the powers and duties of
administration has brought it in conflict with the individual in various walks of life. This has led
to an increase in the content of administrative law which necessitated the treatment of
administrative law as a separate subject. The main motivation for the growth of administrative
law is the need of the government to extend its powers of control over different spheres of human
activity and a corresponding need for the definition of the powers of the administration and their
control in the interest of the individuals affected by their exercise. The increase in functions and
powers of administration calls for its control and regulation. Legislature can pass laws of general
application. It cannot control the application of the law to the individual. It is true that members
of the legislature can be approached by an individual aggrieved by an administrative action but
the scope of redress of such grievances through the legislature is extremely limited. Questions in
Parliament can be asked regarding the wrong action of the government or an administrative
authority. As the government and the administration are responsible to the legislature, they may
try to redress the grievances of an individual through departmental action when a matter appears
in discussion in Parliament but Parliament is busy with questions of general policy and law-
making. Its influence on the redress of individual grievances is, therefore, necessarily limited.
The individual can, however, seek remedy against administrative action either by representation
to the administrative authority concerned or by recourse to the law courts. A purely
administrative authority can attend to a complaint of an individual and can give relief if some
obvious wrong has been committed. But in the nature of things administrative authorities
develop a departmental bias in favour of their own action or actions of their subordinates. For,
they carry out administrative policies. It is generally difficult for them to be so objective and
detached in their attitude as to discover flaws in their own actions. If an administrative authority
is acting quasi-judicially then it acts objectively and according to the natural justice procedure. If
a defect in procedure is pointed out to it, it is often likely to cure the same. But quite often it may
believe that it has followed the correct procedure and would refuse to give relief against a
complaint. In the vast majority of grievances, therefore, the remedy has to be sought in the courts
of law. As Farewell, LJ., observed in Dyson v. Attorney General3 The Convenience in the public
interest is all in favour of providing a speedy and easy access to the courts for any of His
Majesty's subjects who have any real cause of complaint against the exercise of statutory powers
by Government departments and Government officials... If ministerial responsibility were more
than the mere shadow of a name, the matter would be less important, but as it is, the courts are
the only defence of the liberty of the subject against departmental aggression.

Constitutional law viewed through administrative eyes

Since the English Constitution is unwritten, the impact of constitutional law upon administrative
law in England is insignificant and blurred. As Dicey observes, the rules which in other countries
form part of a constitutional code are the result of the ordinary law of the land in England. As a
result, whatever control the administrative authorities can be subjected to, if any, must be
deduced from the ordinary law, as contained in statutes and judicial decisions. But, in countries
having written constitutions, there is an additional source of control over administrative action.
In these countries there are two sources or modes of exercising judicial control over the
administrative agencies constitutional and non-constitutional. The written constitution imposes
limitations upon all organs of the body politic. Therefore, while all authors attempt to
distinguish the scope of administrative law from that of constitutional law, they cannot afford to
forget not to mention that in a country having written constitution with judicial review, it is not
possible to dissociate the two completely.

The acts of the executive or the administration are protected in India in various ways. The
legislative acts of the administration, i.e. statutory instruments (or subordinate legislation) are
expressly brought within the fold of Article 13 of the Constitution, by defining law" as
including order, bye-law, rule, regulation, notification" or anything having the force of
law". As in all common law countries, a delegated legislation can be challenged as invalid not
only on the ground of being ultra vires the statute which confers power to make it, but also on the
additional ground that it contravenes any of the fundamental rights guaranteed by Part III of the
Constitution

A non-legislative and a purely administrative action having no statutory basis will be void if it
breaches any of those fundamental rights which set up limitations against any State action. Thus
a non-statutory administrative act may be void if it violates Article 14, guaranteeing equal
protection ; Article 29 or Article 30guaranteeing minority rights; Article 19guaranteeing
freedom of speech, association, etc.; and Article 16guaranteeing equality of opportunity in
3 (1911) 1KB 410
employment . Thus the court would strike down any administrative instruction or policy,
notwithstanding its temporary nature, if it operates as discriminatory, so as to violate any
fundamental right of the person or persons discriminated against. Non-statutory administrative
action will also be void if its result affects a fundamental right adversely where the Constitution
provides that it can be done only by making a law. The most significant examples of such a case
would be actions affecting Article 19, 21 or 300-A.

An administrative act, whether statutory or non-statutory, will be void if it contravenes any of the
mandatory and justiciable provisions of the Constitution, falling even outside the realm of
fundamental rights like Articles 265, 301, 311 and 314. In cases of statutory administrative
actions, there is an additional constitutional ground upon which its validity may be challenged,
namely, that the statute, under which the administrative order has been made, is itself
unconstitutional. Where the impugned order is quasi-judicial, similarly, it may be challenged on
the grounds, inter alia,

that the order is unconstitutional;

that the law under which the order has been made is itself unconstitutional.

Constitutional law thus advances itself into the judicial review chapter in administrative law in a
country like the USA or India. The courts in these countries have to secure that the
administration is carried on not only subject to the rule of law but also subject to the provisions
of their respective Constitutions. [It can be observed that an attack upon the constitutionality of a
statute relates to constitutional law and the constitutionality of an administrative action concerns
administrative law, but the provisions of the same Constitution apply in both the spheres.

The object of both the common law doctrine of rule of law or supremacy of law and a written
constitution is the same, namely, the regulation and prevention of arbitrary exercise of power by
the administrative agencies of the Government. The rule of law insists that the agencies of the
Government are no more free than the private individual to act according to their own arbitrary
will or whim but must conform to legal rules developed and applied by the courts". The business
of the written constitution is to embody these standards in the form of constitutional guarantees
and limitations and it is the duty of the courts to protect the individual from a breach of his rights
by the departments of the Government or other administrative agencies.

Difference between constitutional law and administrative law

Constitutional law and administrative law both are concerned with functions of government,
both are a part of public law in the modern state and the sources of the both are the same.

Yet there is a distinction between the two. The administrative law is but an adjunct of the

constitutional law. To the early English writers on administrative law there was no difference

between administrative law and constitutional law. Therefore, Keith observed:

It is logically impossible to distinguish administrative from constitutional law and all

attempts to do so are artificial.

Actually the distinction between the two is one of degree, convenience and custom rather

than that of logic and principle. However, according to Holland, Constitutional law describes

the various organs of the government at rest, while administrative law describes them in

motion

Therefore, according to this view, the structure of the legislature and executive comes within

the purview of the constitutional law but there functioning comes within the sphere of

administrative law. But Maitland does not agree with this classification because in that case

powers and prerogatives of the crown would be relegated to the arena of administrative law.

According to Jennings- administrative law deals with the organization, functions, powers

and duties of administrative authorities while constitutional law deals with the general

principles relating to the organization and powers of the various organs of the state and

their mutual relationship of these organs with the individuals. In other words, constitutional

law deals with fundamentals while administrative law deals with details.

It may also be pointed out that constitutional law deals with the rights and administrative law

lays emphasis on public need. However, the dividing line between the constitutional law and

administrative law is a matter of convenience because every student of administrative law

has to study some constitutional law.


In countries which have written constitutions the difference between constitutional law and

administrative law is not so blurred as in England. In such countries the source of

constitutional law is the constitution while the source of administrative law may be statutes,

statutory instruments, precedents and custom.

Whatever may be the argument and counter argument, the fact today that administrative

law is recognized as a separate independent branch of legal discipline though at times the

discipline of constitutional law and administrative law may overlap. The correct position

seems to be that if one draws two circles of administrative law and a constitutional law, a

certain place they may overlap and this area may be termed as watershed in administrative

law. This formulation does not differentiate between administrative law and constitutional

law. It lays entire emphasis on the organization, power and duties to the exclusion of the

manner of their exercise. A student of administrative law is not concerned with how a

minister is appointed but only with how a minister discharges his functions in relation to an

individual or a group. How the minister of housing and rehabilitation is appointed is not the

concern of administrative law but when this minister approves a scheme of new township

which involves the acquisition of houses and lands of persons living in that area questions

of administrative law arise. Jennings formulation also leaves many aspects of

administrative law untouched, especially the control mechanism.

Professor Robson observed that constitutional law deals with individual right and

administrative law deals with public need.

Constitutional law is genus