CONSTITUTIONAL LAW

AND ADMINISTRATIVE
LAW
INTRODUCTION

Regulation and remediation are the most demanding arenas of discourse for the current and
prospective intellectuals. One should note that regulation doesn`t always refer to controlling
private individuals. It may exist to regulate the implementers and enforcers of law. It is
necessary to ensure the legitimacy of the regulators beyond all reasonable doubts for the
people. In order to understand this notion, we will take here administrative laws to know at
least one aspect of the political regulation. As Justice Gummov has made it clear “The subject
of administrative law cannot be understood or taught without attention to its constitutional
foundation”1 , analyzing constitutional laws and administrative laws in juxtaposition will give
comprehensive results and therefore we will have comparative study of constitutional and
administrative laws.

Somehow it is difficult to call them as completely different school of thoughts. In other words
they are interconnected and interdependent on one another. At the same time, administrative
laws are gaining real importance which makes them analogous with constitutional laws.

The paper will examine how administrative laws came into existence besides constitutional
laws and their purpose. It will also mention the views of some philosophers on their
comparison. Furthermore it will compare them; highlighting their merits and demerits.
Finally, focal point of the paper will be their conflicts, especially when judiciary comes into
the picture and then we will look into other countries and try to find out their position.

BEGINNING FROM THE BEGINNING

India has a wide range of legal parameters for every field needing regulation and that can be
found in the Constitution of India or other statutes. Nevertheless, constitution is the mother of
all laws existing in a country. It provides a common source of validation and point of origin
to all laws. Other than that, there are countries where there is no written constitution but still
the laws do exist and prevail. Constitution of India has got its base from Government of India

1
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30, 2017, 5:26 PM ], www.abyssinialaw.com/study-on-line/item/294-constitutional-law-and-administrative-
law#.

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Act, 1935 along with the constitutions of several other countries. The Constitution is just the
embodiment of broad principles that govern a country and any fallibility on the part of
lawmakers to comply with its provisions leads to invalidation of such acts and provisions.
Talking in context of the administration of India, it gives the broad structure of all the
administrative bodies and their basic functions which can be differentiated from one another.
All the functions that are performed by various authorities and departments have got their
validation from the Constitution of India. Hence it regulates all the powers exercised by the
different bodies of the government.

Though the constitutional provisions separates the legislative and executive powers but such
broad principles are not sufficient because they merely take individualistic view into account.
For example, who has the power to exercise such sovereign power and how such power has
to be actually exercised. Therefore, we have the concept of Administrative Laws.

Administrative Law deals with regulations of all the administrative agencies in detail i.e.
making of rules, adjudication and their enforcement. Other allied matters like salaries are also
covered under such laws. Questions like how and when do these laws came into existence
are not uncommon because they are nowhere mentioned manifestly in any separate article of
the constitution. Besides such questions regarding inception generally doesn`t exist in relation
to Constitution of India because almost every individual knows about its formal embodiment,
adoption and the rigorous efforts in making. Constitutional laws came way much later in
1950 but the administrative laws existed since the time when we had British rule in India.
They came with an objective to rule the country for which, it was important to have some
efficient and effective administration. The Supreme court of Calcutta brought independent
judicial administration but it was soon struck down and later, a centralized administrative
system came. Gradually, many regulations were passed to take control of administrative
justice system wherein court had power to control administrative actions after due
examination of them. By the end of the British rule, the focus of Indian government shifted to
more primal duties.

Our constitution provides for creation of administrative agencies like the ones we have under
Article 315 and Article 329 related to Public Service Commission in India and Election
Commission respectively. Furthermore, we have Articles 261, 263, 280, 324, etc. which deal
with administrative laws within the constitution.

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The source of the constitution is people of India as its preamble has mentioned in the very
beginning itself- "WE, THE PEOPLE OF INDIA..."2. Administrative law is the subordinate
branch of constitution, the source of which is constitution itself along with acts, statutes, etc.
Hence there is subtle and hairline difference between them which sometimes turns out to be
trivial.

UNDERSTANDING THE PHILOSOPHERS

Most of the philosophers who talked about constitutional and administrative laws based their
study on England where there is hardly any difference between these laws. England follows
the common law doctrine along with an unwritten constitution and hence it becomes difficult
to draw a line between the two laws. Prof. Wade, who studied them in detail also came up
with the same conclusion. According to him, administrative laws are a part of constitutional
laws; following the same principles of rule of law and balance of power. They are so
interlinked that all the limitations applied on exercise of power by constitution applies to
administrative laws too. Administrative departments and agencies are not allowed to go
beyond the laws regulating them. Philosophers like Keith also believe that distinguishing
constitutional and administrative laws is vague and meaningless. Some jurists like Felix
Frankfurter went as far as to call it “illegitimate and exotic". 3

While studying the viewpoints of various philosophers, one comes across the iteration of
stands taken by them in the process of analysis. The first person who took a stand in
distinguishing constitutional law from administrative law was Frank J. Goodnow. In our
understanding, both constitutional and administrative laws are public laws but when we talk
about William A. Robson, a variation comes. For him constitutional law focuses on
individual rights while administrative law has the concept of public good. He mentioned in
his works about how the administrative control is expanding day by day, especially its
adjudicative functions. Moreover, Holland went on differentiating them on the lines of rest
and motion. According to him, the structure of executive is a matter of constitutional law i.e.
rest while its functioning is studied under administrative laws i.e. motion. This differentiation
can be elaborated in what Maitland said- structure and broader rules to regulate functions are

2
The Constitution of India, 1950, Preamble.
3
Relationship Between Constitutional Law And Administrative Law Essay, Lawteacher, [Jul. 30, 2017, 4:44
PM ], https://www.lawteacher.net/free-law-essays/administrative-law/relationship-between-constitutional-law-
and-administrative-law-administrative-law-essay.php?cref=1.

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in constitutional laws while the detailing of these functions come under administrative laws.
Hood Phillips too discussed the criteria of rest and motion. Jennings put forward another
view which says that 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, their mutual
relationships and relationship of these organs with the individual.4 Hence it becomes a
contested question that whether administrative laws are related to constitution laws or not.

An altogether different turn was taken by A.V. Dicey who was an ardent preacher of rule of
law. By applying his concept of rule of law, he stated that there should be no administrative
law in addition to constitutional laws. He wanted everyone to be subjected to same laws, no
matter what his class, gender, creed is. He thought that if the administrators will not be
subjected to same laws as the commoners then it may lead to tyranny, leaving individuals
miserable and helpless. What he devised was something much more prevalent in UK but was
criticized by several great philosophers like Marx. Modern concept of rule of law is wider
than the earlier one. Both rule of law and administrative law are complementary to each other
now for ensuring equality. Therefore, constitutional law and administrative law can`t be
mutually exclusive anymore. The views of Griffith are remarkable in this jargon- no matter
what stand a particular writer takes but at the end they all come up with same conclusion that
any distinction between these two laws is arbitrary.

COMPARISON

Comparative study of those laws that are deeply fused into one another becomes intricate but
not impossible. Though constitutional law and administrative law have got same purpose,
objective, subject matter and principles, there lies a scope for differentiation. Basically the
hindrance in the differentiation exists due to the countries like UK who have got no written
constitution. In India, constitutional laws emanate from constitution, the supreme law of the
land whereas administrative laws are contained in statues, acts, etc. i.e. subordinates of the
constitution. Apparently, they appear distinct but in case of countries with unwritten
constitution, there is no parameter called supreme body to distinguish other statutes from it.
In such countries, every law exists in statutes and acts only and so it creates a situation of
dilemma.

4
Ibid.

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Difference

 Constitutional laws are better known as genus while administrative laws are species of it
because it is the constitution which gave validation to all other laws. Administrative laws
not only state the powers of authorities but also deals with those areas where these powers
are exercised. It happens because the administrative laws being species of constitutional
law follow the policy of public welfare. Prof. Sathe thus explicitly notes in his book
Administrative Law that " Administrative law is a part of constitutional law and all
concerns of administrative law are also concerns of constitutional law".5
 A striking feature of constitutional law is that they cover almost all branches of laws
dealing with various fields. They mention the broad principles, powers, functions,
structure and organisation of all bodies of government but administrative law deals
specifically with the powers, functions, structures and duties of administrative bodies.
Though the scope of administrative laws is smaller, they are vital because one can`t
simply function efficiently through constitutional laws only. For instance, a constitutional
law will not tell you the salary of each administrative body, their working hours and other
matters pertaining to an individual.
 Moreover, the constitutional law expands in the jurisdiction of international laws too. For
the matters pertaining to cross borders relations, constitutional laws can be referred. But
no such provisions can be found in administrative laws.
 When it comes to compliance, one has to ensure the conformity with constitutional laws
first and then to administrative laws. This means even if a person ardently follows the
administrative laws but lags in adherence to constitutional laws, he/she will still be liable
for the reason that parent laws are always above the subordinate laws.
 Another reason for the rise of such liability can be the presence of fundamental rights in
part III of Constitution of India. If one violates those rights, constitutional laws can place
negative duties on administrators. It is constitutional law only which devices the social
welfare objectives over administrative laws as already mentioned before. If administrative

5
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 bodies perform their duties but in violation of those rights, their compliance in first place
makes no sense.
 Therefore, all the activities of administrative bodies is under careful watch of the
constitution and can be declared void at any instance of violation but no such control and
regulations are exercised by either administrative laws or any other laws on the
constitution.
Besides one should know that any distinction between these two laws is just of degree
and not of principles. Hence these two laws always overlap in their spheres of
jurisdiction and in case of such intersection, constitutional laws always overshadows
administrative laws.

Commonality

 Administrative law cannot exist on its own, same applies to constitutional law too.
Constitutional law mentions all the fundamental rights guaranteed to an individual but
administrative laws are not concerned with enunciation of such rights. Similarly,
constitutional law can`t implement these rights on their own, it needs an intermediary to
reach the society and this is ensured by administrative law through principles, remedies,
rules and procedures to ensure such rights. Hence administrative law is a device for
constitutional law.
 While acting as a device of the constitution, administrative agencies should ensure that
they themselves are not abrogating any of the rights mentioned in part III of the
Constitution of India. Some of these rights are right to equality, right to be heard, right
against untouchability, right against discrimination on the basis of caste, creed, colour,
etc. Besides fundamental rights, these laws can`t violate any other article of the
Constitution of India like Article 265, 301, 311, 314, etc. The statute or act within which
the departments perform their functions can also be declared void under constitutional
law.
 Both administrative law and constitutional law works on the principle of rule of law. No
one is above the law i.e. constitution. Even administrative laws also ensure that agencies
and departments do not exceed the powers already assigned and that contributes to
establish the rule of law state. In Maru Ram v. UOI6 it was stated that even the power of

6
Maru Ram v. Union of India, (1981) SCR (1)1196.

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 presidential pardon is subjected to judicial review in order to avoid all scopes of
arbitrariness while ensuring rule of law.
 Another concept that applies to both the laws is judicial review. Judicial review coexists
with the concept of rule of law and limited form of government. It has been stated in
Minerva Mills v. UOI7 that for the existence of rule of law, judicial review is inevitable.
The constitution itself provides for the judicial review of the acts of various organs of
government including the executive under various articles such as 13, 32, 131-136, 143,
226, and 246. Constitutional law apparently contains judicial powers but now,
administrative law also gives reference to some quasi- judicial powers which is always
subjected to constitutional principle of judicial review. Supreme court has mentioned this
in State of Madras v. V.G. Row8 that constitution contains express provisions for review
of administrative actions and the courts do this task not to pester but out of duty laid upon
them.
 Both of them use judicial precedents and case laws in order to achieve common objective
i.e. protection of rights of an individual.
 The notion of natural justice also comes into the picture when we talk about the rights of
people. Both the laws contain provisions for fair hearing which is vital for imparting
natural justice. Likewise there are many other fundamental rights which has to be
protected to ensure natural justice. For example, the case of Workmen v. Meenakshi Mills
Ltd.9 illustrates the saving of fundamental rights under Article 19(1)(g) by allocating
proper administrative adjudication.

Hence one can find that the differentiation between them on the basis of various parameters
like superior- subordinate, genus-specie relationship, etc. itself gives birth to many
commonalities due to the overlapping factors affecting each other.

UNCOVERING THE BETTER

After analysing the relationship between the two laws, one can observe that they have many
merits and demerits over one another. Ultimately both have got something better when
compared to the other and that gives a meaning to their existence. But as one moves to
sophistication, the merits of one appears to outclass the merits of the other.

7
Minerva Mills v. Union of India, (1980) SC 1789.
8
State of Madras v. V.G. Row, (1952) SC 196.
9
Workmen v. Meenakshi Mills Ltd., (1992) SCR (3) 409.

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Though subordinate to constitutional law, administrative law do outshine them when it comes
to flexibility. Statutes provide some rigidity to administrative laws but still they are more
adaptable to technical developments and occasional changes that may take place in daily
business of administration. The contingencies can be better met by the administrative laws by
creating a cloak named discretion of administrative agencies. Being dynamic is the need of
every regulatory system for the sake of justice and so, providing some scope for flexibility is
inevitable. Such flexibility is hardly possible when it comes to constitutional law. It needs
more formal and well analysed complex process to incorporate any deviation. Constitutional
laws are general and exact in their application. But when we talk about administrative laws,
they are framed by executives for themselves and that leads to expert legislation because they
are more familiar with their own conditions and so are better aware of the necessary clauses
which should govern them. Hence this becomes more beneficial when it comes to compliance
as agencies and departments are more inclined to follow them.

After looking at some merits of administrative laws in conjunction with demerits of

constitutional laws, one needs to make sure that he/she is not plunged into a wrong
impression about the constitutional laws. It have also got an upper hand in several matters
when brought under collation. They use extensive debates and consultations deliberated by
the delegates. Such debates and required publicity is lacking in case of formulation of
administrative laws. At the same time, there exists the possibilities of sub delegation in the
case of administrative laws which may not make people much accountable as it would have
in first place. Besides constitutional laws are dealt with much solemnity. Moreover, it is not
easy to put an end to the constitutional laws as and when required. A proper thought process
and competent body is prerequisite while amending any provision contained in the
constitution whereas it is not so difficult to quash any section of any law or act made by
administrative bodies. The administrative law is limited in this sense and can be influenced
by the high court. Constitution being the supreme law of the land cannot be overridden easily
because the body who interprets the constitution i.e. the supreme court also gains its authority
from the constitution.

Consequently, each law has got its own downsides which can be sorted out only by fitting
each other into their loopholes. On such observation, their intrinsicality tells us why they
can`t be separated from each other.

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CONFLICTS

The Government of India provides for a speedy and efficient trial of the parties through
Central Administrative Tribunal which was introduced in 1985 under the Administrative
Tribunals Act, 1985. It deals with all the cases related to service matters that were earlier
dealt by the courts including High Court. It provides for efficient and effective justice system.
Furthermore, it draws its legitimacy from the constitutional law under article 323-A of the
Constitution of India and hence leads to enhanced justice system via tribunals, limiting the
review power of the High Court. Dr. Rajeev Dhavan (an Indian Senior Advocate, a human
rights activist, and a Commissioner of the International Commission of Jurists ) commented
that such a system is not bad if properly worked out and for this, further referring Prof.
Wade, the administrative adjudication needs to ensure that procedures are in fair play. Also,
they should give decisions that are rational and principled.

Prof. Wade who conducted rigorous study of administrative law delivered that in the above
mentioned situation, there can be dissension with constitutional laws. Constitution provides
for the judicial review of the quasi-judicial acts of government in order to avoid its arbitrary
actions. Therefore, even after getting their own laws and court for redressal, administrative
tribunals are not free from the encroachment of the judiciary under the veil called rule of law
and Constitution. Prof. Wade was one of those scholars who explained the underlying
principle of judicial review in administrative laws. He pressed for the need to give reasons for
any particular decision by the administrative tribunals. Reasoning is necessary to decide
whether any administrative adjudication is really worth for judicial review or not as such
reasoning gives the ground for challenging it. These essentials along with many others were
somewhat neglected in ADM Jabalpur`s10 case where both the supreme court and high court
upheld the administrative order. Besides, in case of Ridge v Baldwin11, the administrative
order was quashed as it was inconsistent with principle of natural justice. Furthermore, the
philosophers like William A. Robson also contended that agencies have large amount of
administrative powers vested with them which he finds as the problem of justice. Therefore,
the consequential inadequacies in performance of administrators can affect the sacred
principles enshrined in the constitution.

10
Additional District Magistrate v. Shivkant Shukla, (1976) SC 1207.
11
Ridge v. Baldwin, (1964) AC 40.

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Another major conflict that generally arises is related to separation of power wherein the
creation of administrative laws is considered unconstitutional at threshold. By delegating the
legislative powers to executive branch and thereby following a fused concept of separation of
power is the violation of rule of law. But mostly, such views are not well supported.
Constitution of India provides law making power under article 245 and 246 and at the same
time, it avoids restriction on the delegation of this power because practically, it won`t be
possible for legislature to manage all problems on its own. Article 13(3)(a) includes all
ordinances, bylaws, rules, regulations, etc. that can be subjected to fundamental rights. Judges
too have provided a liberal interpretation for the delegation of power in various cases like
Vasantlal Magan Bhai v. State of Bombay12, S. Avtar Singh v. State of Jammu and
Kashmir13, re Delhi Laws Act case14, etc.

GOING GLOBAL

Upon seeing and evaluating the India`s position while comparing constitutional and
administrative laws, we can say that there is some kind of distinction possible between these
laws because of the existence of written constitution but the situation changes as one moves
to other countries where there is no written constitution. For instance, take the example of
UK, where 'unwritten constitution' is existing because they were never conquered and
liberated by any other nation and so they never felt a need to bring their constitutional
principles into a single document. Though they too can distinguish between the two laws on
the basis of genus-specie relationship but such distinction is almost blurred. Parliament over
there has got superior power in law making and hence they can enact or amend any law or act
as and when they wish. They can change even the basic constitutional principles via ordinary
law making power. This may also imply that they can take away the basic rights of
individuals but usually they don`t do so because of the fear of losing reputation. Nonetheless,
the sovereign power of implied repeal is subdued by European community under European
Communities Act, 1972. People certainly argue that there is no administrative law in UK
because of the questionable concept of constitution. Also, the supremacy of parliament means
that there cannot be any judicial review. But with the increasing discretion and complexity in
the decision making, a need was felt there for developing administrative law as a part and

12
Vasantlal Magan Bhai v. State of Bombay, (1961) SC 4.
13
S. Avatar Singh v. State of Jammu and Kashmir, (1977) J&K 4.
14
re Delhi Laws Act case, (1961) Supreme Court 332.

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parcel of justice. Moreover, Lord Denning mentioned in Breen v. AEU15 that judicial review
has developed over the years and now, the developed administrative law system exists in UK.

Besides USA is almost or we should say exactly similar to Indian system. In these countries,
both the laws differ in scope and constitutional law has got an upper hand over administrative
law. Administrative law deals with the creation of agencies and detailed powers and functions
of individuals. The executive branch gets this power from congress or the respective state
legislatures. Constitution needs to keep a check over this delegated governmental power.
Constitution, as mentioned earlier deals with the classification and broad principles of the
organs of government. Any change in it can be brought by congress but at the same time,
requires the approval of state legislature or the legislatures acting through constitutional
conventions. The administrative law needs to be in conformity with the constitutional law,
that is what we call rule of law. They should comply with the standards and due process to
avoid arbitrariness. Therefore, one can see that they somehow intersect at a point called rule
of law and so the distinction is overwhelmed by this relationship.

Almost every country follows the concept used by USA and India for comparison of
constitutional law and administrative law. Some of them are Pakistan, Nigeria, France,
Brazil, etc. Nevertheless, there are some countries where the distinction is under a maze. This
can be seen in Israel, Saudi Arabia, etc. where the lack of single codified document provides
a lacunae for flexibility and hence, the distinction between the two laws get hazy. Therefore,
how hard one endeavours, the distinction between the two laws cannot be successful in every
country.

CONCLUSION

When it comes to their implication, administrative law has come at par with constitutional
law, so much so that they have got an intrinsic value. Both the stands sound legitimate while
analysing that whether constitutional law and administrative law are one and the same thing
or not but one needs to ponder that whether there exists any further interpretation or not.

Philosophers like Holland and Hood gave the parameters that focussed too much on matter
than the substance of two laws. These parameters are superficial and the differences
highlighted by them are surged over by their similarities which were stated by other class of

15
Breen v. Amalgamated Engineering Union (1971) 2 WLR 760.

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philosophers. The dissimilarities between the two laws are such that even a layman can also
perceive them manifestly but on the other hand, if one wants to find out the similarities, he
has to clean his magnifiers and delve deeper. The intellectuals ken just the theoretical
difference between the two laws but pragmatically, these laws can`t avoid each other. As
soon as one accepts the fact of their relatedness, the possibilities of their conflict becomes
higher. When it comes to their overlap, one of them may always find it difficult to work in
the presence of another. In such a situation, it is the constitution which prevails over
administrative bodies. These laws have different approaches for same objective and so their
provisions can`t circumscribe each and every element. Their downsides do lead to the rise of
some demerits which can`t be used to misjudge them because it is something natural and
obvious in every field of study. Rather, such loopholes provide more scope for
interdependency. Also, all the evaluations done may differ from country to country due to
different social, economic and political circumstances and so, none of the stands can be
objective. But still on a wider scale, most of the countries have followed same culture that
subsists in India.

Every viewpoint indicates that the coexistence of two laws is undeniable. The whole analysis
ends up lingering around their analogy, be it comparison or conflict. Hence to ensure
effectiveness, we can never deny their coexistence while governing and regulating the
administrative agencies and departments.

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