Relation between adminstrative law and constitutional law

HIDAY HIDAYATULLAH NATIONAL LAW UNIVERSITY UNIVERSI TY

Administrative Law Project ON Re!ation "etween Administrative Law and #onstit$tiona! Law %

SU&'ITTED TO 's( Ne)a Sin)a

A*AY A*AY LA+RA LA+ RA SEC-B Roll - 9

RELATION BETWEEN ADMIN ISTRATIVE LAW AND CONSTITUTIONAL LAW

ACKNOWLEDGMENTS

At the outset, I would like to express my heartfelt gratitude and thank my teacher, Ms. Neha Sinha for putting his trust in me and giving me a project topic such as this and for having the faith in me to deliver. Sir, thank you for an opportunity to help me grow. My gratitude also goes out to the staff and administration of N!" for the infrastructure in the form of our li#rary, I$ !a# and my friends that was a source of great help for the completion of this project. AJAY LAKRA

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TABLE OF CONTENTS 1. #. ". ).

Introdut!on.................................................................................................................." O$%&t!'&(......................................................................................................................) R&(&*r+ M&t+odolo,.................................................................................................) C+*t&r!(*t!on I. N*tur& *nd So& o/ Ad0!n!(tr*t!'& L*......................................................12 II. Sour&( o/ Ad0!n!(tr*t!'& l*......................................................................12 III. Con(t!tut!on*l l* '!& t+rou,+ Ad0!n!(tr*t!'& &&(......................................1# I3. Ad0!n!(tr*t!on ,ron !n Con(t!tut!on*l 0*tr!4..............................................1) 3. T+& ,&nu(-(&!&( r&l*t!on(+!..........................................................................1) 3I. Con(t!tut!on*l d&t&r0!n*t!on o/ t+& (o& o/ Ad0!n!(tr*t!'& /unt!on...5516

3II.

Con(t!tut!on*l !0*t on Ad0!n!(tr*t!'& *d%ud!*t!on555555...........17

6. Conlu(!on...................................................................................................................18 7. B!$lo,r*+................................................................................................................1

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INTROD:CTION

)onstitutional and administrative law #oth govern the affairs of the state. Administrative law, an area of law that gained early sophistication in *rance, was until well into this century largely unrecogni+ed in the "nited ingdom as well as the "nited States. $o the early -nglish writers on administrative law, there was virtually no difference #etween administrative law and constitutional law. $his is evident from the words of eith /It is logically impossi#le to distinguish administrative from constitutional law and all attempts to do so are artificial.0 Some jurists like *elix *rankfurter even went as far as to call it illegitimate. 1ue to this lack of clarity, it will #e vital to o#serve the views of jurists and scholars on the difference #etween administrative law and constitutional law. According to olland, constitutional law descri#es the various organs of the government at rest, while administrative law descri#es them in motion. olland contends that the structure of the executive and the legislature comes within the purview of constitutional law whereas their functioning is governed #y administrative law. 2ennings puts forward another view, which says that administrative law deals with the organi+ation, functions, powers and duties of administrative authorities while constitutional law deals with the general principles relating to the organi+ation and powers of the various organs of the State and their mutual relationships and relationship of these organs with the individual. Simply put, constitutional law lays down the fundamentals of the workings of government organs while administrative law deals with the details. $he fundamental constitutional principle, inspired #y 2ohn !ocke, holds that /the individual can do anything #ut that which is for#idden #y law, and the state may do nothing #ut that which is authorised #y law0. Administrative law is the chief method for people to hold state #odies to account. 'eople can apply for judicial review of actions or decisions #y local councils, pu#lic services or government ministries, to ensure that they comply with the law. $he first specialist administrative court was the )onseil d34tat set up in 5677, as Napoleon assumed power in *rance. 8hatever #e the correct position, there always exists an area of overlap #etween constitutional law and administrative law. In India, this corresponds to the whole constitutional mechanism for the control of administrative authorities 9 Articles (%, 5(:, %%:, %%6, (;; and (55. It can also include the study of administrative agencies provided for in the )onstitution itself. <=> *urther, it may include the study of constitutional limitations on delegation of powers to the administrative authorities and also those provisions of the )onstitution which restrict administrative action? for example, the *undamental @ights.

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RE3IEW OF LITERAT:RE

1icey, !aw of )onstitution B5;th -dn., 5==CD, p. %;( 1iscussed the relation #etween Administrative law and )onstitutional. .

Easu, 1.1., Administrative !aw B:th -dn., %;;D, p. 5; . 1iscussed the relation #etween Administrative law and )onstitutional.

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OBJECTI3ES

I. II.

$o Study the nature and scope of Administrative law. $o study the relation #etween Administrative law and )onstitutional.

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;Y
Administrative law, an area of the law that gained early sophistication in *rance, was until well into this century largely unrecognised in the "nited States. $hen, almost overnight, what *elix *rankfurter termed FldGuo?this illegitimate exoticFrdGuo? overwhelmed the profession FldGuo?which for years had #een told of its steady advance #y the lonely watchers in the towerFrdGuo?.5 Since the 57%;s the su#ject has expanded relentlessly, rapidly adapting, #oth in principle and in caseHlaw, to new demands and pressures. In the "nited ingdom, the su#ject languished for much longer. In the past three or four decades, however, -nglish administrative law has undergone a revolution and the academic and professional literature is now considera#le.% et, even though -nglish administrative lawyers can now look their American counterparts in the eye, comparisons are not easy and there are important differences of approach and terminology for o#vious reasons. $here is no supreme written constitution in the "nited ingdom, and 1iceyFrsGuo?s doctrine of the sovereignty of 'arliament is still internally regarded as preHeminent. $herefore, the eclipsing impact of the constitutional law on administrative law #ecomes o#vious..

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RESEARC; =:ESTIONS

I. II.

W+*t !( Ad0!n!(tr*t!'& L*> W+*t *r& t+& r&l*t!on $&t&&n Con(t!tut!on*l L* *nd Ad0!n!(tr*t!'& L*>

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RESEARC; MET;ODOLOGY

$he method of research adopted for the project is analytical methodology. *or the present project relevant data and information has #een received and collected from secondary sources and there has #een use of authentic #ooks and we#sites which provided relia#le information and data.

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N*tur& *nd (o& o/ Ad0!n!(tr*t!'& l*

Administrative !aw deals with the powers of the administrative authorities, the manner in which the powers are exercised and the remedies which are availa#le to the aggrieved persons, when those powers are a#used #y these authorities. As discussed a#ove, the administrative process has come to stay and it has to #e accepted as a necessary evil in all progressive societies, particularly in a welfare State, where many schemes for the progress of society are prepared and Administered #y the Jovernment. $he execution and implementation of this programme may adversely affect the rights of citi+ens. $he actual pro#lem is to reconcile social welfare with the rights of individual su#jects. As has #een rightly o#served #y !ord 1enning /'roperly exercised, the new powers of the executive lead to the 8elfare State? #ut a#used they lead to the $otalitarian State.0 5 $he main o#ject of the study of administrative law is to unravel the way in which these administrative authorities could #e kept within their limits so that the discretionary powers may not #e turned into ar#itrary powers. Schwartz divides Administrative Law in three parts; 1. the powers vested in administrative agencies; 2. the requirements imposed by law upon the exercise o those powers; and !. remedies available against unlawul administrative actions.

Sour&( o/ Ad0!n!(tr*t!'& L*

Administrative law is not a codified, written or wellHdefined law like the )ontract Act, 'enal )ode, $ransfer of 'roperty Act, -vidence Act, )onstitution of India, etc. It is essentially an unwritten, uncodified or K2udgeHmadeL law. It has developed slowly in the wake of factual situations #efore courts. In a welfare State, administrative authorities are called upon to perform not only executive acts, #ut also GuasiHlegislative and Guasijudicial functions. $hey used to deem the rights of parties and have #ecome the K*ourth #ranchL of Jovernment, a 5

www.constitutionmaking.org and www.comparativeconstitutionsproject.org

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KJovernment in miniatureL. !egal scholars have compared administrative law to the rise of eGuity. It has its origin in need and necessity in protecting personal rights and in safeguarding individual interests. In few legal systems, there are statutes laying down rules, principles and procedures to #e followed #y administrative agencies. Eut even in a#sence of specific enactments dealing with a particular situation, certain fundamental rules, #asic principles and minimum reGuirements of law are well settled and all authorities are #ound to o#serve them. A person adversely affected #y any action of an administrative authority has right to challenge such action in an appropriate #ody or a court of law. In "SA the following are the sources of administrative law  Administrative 'rocedure Act, 5=7(  Statutory Instrument Act, 57:  *ederal $ort )laim Act, 576  $he $ri#unals and -nGuiries Act, 57C=  $he 'arliamentary )ommissions Act, 57:% Apart from these legislations, the )onstitution of "SA is also considered as a source of administrative law in addition to the judgments delivered #y the ".S Supreme )ourt. $he sources of administrative law in the " are  @ule 'u#lication Act, 57:  *ederal $orts )laims Act, 576 etc. In the ", since there is no written constitution, the #ulk source of administrative law is derived from the decisions delivered #y the superior courts, the customary practices that are followed in the course of administration and so on. In India there is a written constitution which is considered as a grundnorm. $ill today there is no legislation enacted either #y the parliament or state legislature exclusively on administrative law. In the a#sence of legislations, the main sources of administrative law are rules, regulations, orders, notifications, #yeHlaws, schemes, governmental resolutions, memorandums, department circulars etc. $here are also legislations which provide for the esta#lishment of tri#unals. *or example, the Industrial 1evelopment Act, 576 provides for the esta#lishment of national tri#unals, industrial tri#unals and la#our courts. $here are other 55 & ' a g e


legislations for esta#lishing special courts, #ut all these legislations provide different procedures and different powers for functioning of the tri#unals. $herefore, for the purpose of attaining uniformity in maintaining procedures and for prescri#ing powers, there is a need for comprehensive legislation on administrative law in India. Con(t!tut!on*l l* '!&&d t+rou,+ *d0!n!(tr*t!'& &&(

$he impact of constitutional law upon administrative law in -ngland is meagre and #lurred #ecause the -nglish )onstitution is unwritten and, as 1icey ela#orates it, the rules which in other countries form part of a constitutional code are, in -ngland, the result of the ordinary law of the land. In the result whatever control the administrative authorities can #e su#jected to must #e deduced from the ordinary law, as contained in statutes and judicial decisions. Eut, in countries having written constitution, there is an additional source of control over administrative action, and that is the written constitution which imposes limitations upon all organs of the #ody politic. In these countries the sources and modes of exercising judicial control over the administrative agencies are twofold, constitutional and non constitutional. It is for this reason that while at the very outset every author endeavours to distinguish the scope of administrative law from that of constitutional law, they can never afford to forget to mention that in a country having written constitution with judicial review, it is not possi#le to separate the two into watertight compartments. % $he reason #eing that the written constitution, #eing the organic law, not only sets up #ut also imposes limitations upon the powers of all the organs of the State, legislative, executive or judicial, and if any of these limitations #e transgressed #y any of these organs, the act so done will #e unconstitutional and invalid. So far as the acts of the executive or the administration is concerned, this is secured in India in various ways. $he legislative acts of the administration i.e. statutory instruments Bor su#ordinate legislationD are expressly #rought within the fold of Article 5( of the )onstitution, #y defining F ldGuo?lawFrdGuo? as including FldGuo?order, #yeHlaw, rule, regulation, notification Fhellip? having the force of lawFrdGuo?. A delegated legislation can therefore #e challenged as invalid not only on the ground of #eing ultra vires the statute which confers power to make it Bas in all common law countriesD, #ut also on the additional ground that it contravenes any of the fundamental rights guaranteed #y 'art III of the )onstitution. %

httpwww.lawteacher.netfreeHlawHessaysadministrativeHlawrelationshipH#etweenHconstitutionalHlawHandH administrativeHlawHadministrativeHlaw

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A nonHlegislative and a purely administrative action having no statutory #asis will #e void if it contravenes any of those fundamental rights which constitute limitations against any State action. $hus a nonHstatutory administrative act may #e void if it offends Article 5, guaranteeing eGual protection:? Article %76 or Article (;Fmdash?guaranteeing minority rights? Article 57Fmdash?guaranteeing freedom of speech, association, etc.=? and Article 5:Fmdash?guaranteeing eGuality of opportunity in employment.7 $hus the court would strike down any administrative instruction or policy, notwithstanding its temporary nature, if it operates as discriminatory, so as to violate fundamental right under Article 5 of the person or persons discriminated against.5;H55 NonHstatutory administrative action will also #e void if it seeks to affect a fundamental law #y nonHstatutory action where the )onstitution provides that it can #e done only #y making a law e.g. BaD Article 575%? B#D Article %55(? and BcD Article (;;HA5. An administrative act, whether statutory or nonHstatutory, will #e void if it is in contravention of any of the mandatory and justicia#le provisions of the )onstitution, falling even outside the realm of fundamental rights like Articles %:C5C, (;55:, (5556 and (55=. In cases of statutory administrative actions, there is an additional constitutional ground upon which its validity may #e challenged, namely, that the statute, under which the administrative order has #een made, is itself unconstitutional.57 8here the impugned order is GuasiHjudicial, similarly, it may #e challenged on the grounds, inter alia,Fmdash? H that the order is unconstitutional?%; H that the law under which the order has #een made is itself unconstitutional.%5)onstitutional law thus advances itself into the judicial review chapter in administrative law in a country like the "SA or India. $he courts in these countries have to secure that the administration is carried on not only su#ject to the rule of law #ut also su#ject to the )onstitution.%% 8hile an attack upon the constitutionality of a statute appertains to constitutional law, the constitutionality of an administrative action properly #elongs to administrative law? #ut the provisions of the same )onstitution constitute a touchstone in #oth the spheres. $he o#ject of #oth the common law doctrine of rule of law or supremacy of law and a written constitution is the same, namely, the control of ar#itrary power and while the rule of law insists thatFmdash?FldGuo?the agencies of the Jovernment are no more free than the private individual to act according to their own ar#itrary will or whim #ut must conform to legal rules developed and applied #y the courtsFrdGuo?.%( $he #usiness of the written constitution is to em#ody these standards in the form of constitutional guarantees and limitations and it is 5( & ' a g e


the duty of the courts to protect the individual from an invasion of these guarantees not only #y the departments of the Jovernment #ut also #y all administrative agencies, #ig or small.%

Ad0!n!(tr*t!'& ,rot+ !n on(t!tut!on*l 0*tr!4

Administrative law is a #yHproduct of intensive form of Jovernment. 1uring the last century, the role of Jovernment has changed in almost every country of the world? from laisse+ faire to paternalism and from paternalism to maternalism. $oday the expectation from the Jovernment is not only that it will protect its people from external aggression and internal distur#ance, #ut also that it will take care of its citi+ens from the cradle to the grave. $herefore, the development of administrative process and the administrative law has #ecome the cornerstone of modern political philosophy. ( $oday there is a demand #y the people that the Jovernment must solve their pro#lems rather than merely define their rights. $he rights are ela#orately defined in the )onstitution #ut the policies to protect these rights are formulated #y the Jovernment Bthe executiveD and implemented #y the administrative agents of the State. $here thus arises a direct nexus #etween the constitutional law and administrative law where the former acts as a source from which the rights of the individuals flow and the latter implements its policies accordingly mandated to preserve the sanctity of those rights. It is felt that the right of eGuality in the American )onstitution will #e a sterile right if the #lack is the first to lose his jo# and the last to #e re employed. In the same manner the eGuality clause in the Indian )onstitution would #ecome meaningless unless the Jovernment comes forward to actively help the weaker sections of society to #ring a#out eGuality in fact. $his implies the growth of administrative law and process under the aegis of welfare philosophy em#odied in the constitutional law. $he constitutional law #eing the prior in origin to administrative law, therefore, manifests the phenomenon of a#sorption spectrum, from the former into the latter, of certain su#stantive characteristics endorsing there#y a class of #lood relationship #etween the two imperative #ranches of law.

Neville !. Erown and 2ohn S. Eell, *@-N) A1MINIS$@A$IO- !A8 Cth edition BPxford "niversity 'ress 577=D. (

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T+& ,&nu(-(&!&( r&l*t!on(+!

Administrative law has #een defined as the law relating to administration. It determines the organisation, powers and duties of administrative authorities.%C $his definition does not make any attempt to distinguish administrative law from constitutional law. *urther, this definition is too wide, for the law which determines the powers of administrative authorities, may also deal with the su#stantive aspects of such powers. It may deal with matters such as pu#lic health, housing, town and country planning, etc. $hese matters are not included within the scope of administrative law. Administrative law, however, tends to deal with these matters for the )onstitution has em#odied the principle of a welfare State and the State, only through administrative laws, can execute and implement these rules veraciously in the society. 'rof. Sathe thus explicitly notes in his #ook Administrative !aw that FldGuo? Administrative law is a part of constitutional law and all concerns of administrative law are also concerns of constitutional law.FrdGuo? An inference can therefore #e drawn that constitutional law has a wide arena of jurisdiction, with administrative law capturing a su#stantive part. In other words, constitutional law can #e termed as the genus of which su#stantive portion of administrative law is the species. Con(t!tut!on*l d&t&r0!n*t!on o/ t+& (o& o/ *d0!n!(tr*t!'& /unt!on

$he Indian )onstitution is unanimously and rightly termed as the FldGuo?grund normFrdGuo? as regards domestic legislations. $he metaphor, however, is not used out of context and there lies a simultaneous series of relevant reasons #ehind the statement. $he )onstitution circumscri#es the powers of the legislature and executive and limits their authority in various ways.%7 It distri#utes the governmental powers #etween the )entre and the States. It guarantees the fundamental rights to the individuals and for#ids the State from a#ridging them #y either legislative or executive action. It is the function of the courts to interpret the )onstitution and declare the acts of legislature as well as executive as unconstitutional if they contravene the provisions of the )onstitution. owever, it operates also against the legislature insofar as they cannot make a law which delegates essential legislative powers or which vests un#ridled discretionary powers in the executive hands so as to make its ar#itrary exercise possi#le. $he validity of an executive act is seen with reference to the power given to it #y the legislature. $he )onstitution has, however, in turn laid down !indseth, supra? 8illiams, 1avid K!aw and Administrative 1iscretionL Indiana Journal of Global Legal Studies % B577D 575"%55. 

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the framework defining the extent of laws made #y 'arliament and the State !egislatures.(; )onstitutional law therefore enjoys the status of the prime moderator monitoring legislative actions and in turn installs a yardstick upon the extent of the rules made #y the executive while acting in the capacity of a FldGuo?delegateFrdGuo?. It can #e inferred uneGuivocally that constitutional law plays the pivotal role of the principal channel from where flow the guidelines determining the scope of administrative action there#y esta#lishing a uniGue relationship #etween the two distinct #ut intimate arenas of law. Con(t!tut!on*l !0*t on *d0!n!(tr*t!'& *d%ud!*t!on

In order to provide speedy and inexpensive justice to employees aggrieved #y administrative decisions, the Jovernment set up the )entral Administrative $ri#unal B)A$D in 57=C, which now deals with all cases relating to service matters which were previously dealt with #y courts up to and including the igh )ourts. -sta#lishment of the )entral Administrative $ri#unal under the Administrative $ri#unals Act, 57=C Bhereinafter also referred to as FldGuo?the ActFrdGuo?D is one of the important steps taken in the direction of development of administrative law in India.% $his Act while stimulating the development of administrative law, drew its legitimacy and su#stance from the constitutional law and was passed #y 'arliament in pursuance of Article (%(HA of the )onstitution C. $his article, is considered to #e one of the plus points( of the *ortyHsecond Amendment and that is why even one of the critics of the *ortyHsecond Amendment, 1r. @ajeev 1havan, said something positive a#out the new tri#unal system, envisaged under Article (%(HA. e o#served FldGuo?$he *ortyHsecond Amendment envisaged a tri#unal structure and limited review powers #y the igh )ourts. In the long run, this could mean a streamlined system of tri#unal justice under the superintendence of the Supreme )ourt. 'roperly worked out such a system is not a #ad one. It would #e #oth an Indian and a common law adaptation of the *rench system of droit administratif.FrdGuo?C Indeed, the Administrative $ri#unals are welcomed with a great applause and are performing supplementary function to the igh )ourts with 56 regular Eenches of )A$ functioning in various parts of the country, including its principal Eench in 1elhi.

C

Jins#urg, -lkins and Melton, $- - N1"@AN)- P* NA$IPNA! )PNS$I$"$IPNS Bforthcoming %;;7D.

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CONCL:SION

Although the relationship #etween constitutional law and administrative law is not very em#oldened to #e seen with naked eyes #ut the fact remains that concomitant points are neither so #lurred that one has to look through the cervices of the texts with a magnifier to locate the relationship. $he aforementioned veracities and illustrations provide a cogent evidence to esta#lish an essential relationship #etween the fundamentals of #oth the concepts. If dou#ts still persist, the very fact that each author, without the exception of a single, tends to differentiate #etween the two #ranches of law commands the hypothecation of a huge overlap. )onclusions Although the relationship #etween constitutional law and administrative law is not very em#oldened to #e seen with naked eyes #ut the fact remains that concomitant points are neither so #lurred that one has to look through the cervices of the texts with a magnifier to locate the relationship. $he aforementioned veracities and illustrations provide a cogent evidence to esta#lish an essential relationship #etween the fundamentals of #oth the concepts. If dou#ts still persist, the very fact that each author, without the exception of a single, tends to differentiate #etween the two #ranches of law commands the hypothecation of a huge overlap. According to Maitland: , while constitutional law deals with structure and the #roader rules which regulate the functions, the details of the functions are left to the administrative law. *inally, eith pragmatically remarks, FldGuo?It is logically impossi#le to distinguish administrative law from constitutional law and all attempts to do so are artificialFrdGuo?.= Bemphasis suppliedD In India, in the watershed one can include the whole control mechanism provided in the )onstitution for the control of administrative authorities i.e. Articles (%, 5(:, %%:, %%6 (;; and (55. It may include the directives to the State under 'art IO. It may also include the study of those administrative agencies which are provided for #y the )onstitution itself under Articles %:5, %:(, %=;, (5C, (%(HA and (%. It may further include the study of constitutional limitations on delegation of powers to the administrative authorities and also those provisions of the )onstitution which place fetters on administrative action i.e. fundamental rights.

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BIBLIOGRA<;Y

JO:RNALS ? BOOKS •

#ro. $ichael % $olan &'onstitutional and Administrative Law( !rd ed. )ld *ailey #ress

•

+avid #ollard &'onstitutional Law and Administrative Law ,th ed. )xord -niversity #ress

•

eil #aperworth &'onstitutional and Administrative Law /th ed. 'ore %ext Series

ARTICLES REFERED

•

Harlan Stone, quoted in Vom Baur’s Administrative Law !"#$%, ' (n'

•

Jenings, Ivor, Law and )*e +onstitution !""(%, ' !-'

•

Sat*e, S'.', Administrative Law //#%, ' -'

•

)*a00ar, Justi1e +'2', Administrative Law !""%, ' $'

•

3ade, H'4' & 5ors6t*, +'5', Administrative Law !""(%, ' ('

•

Sat*e, sura fn $, ' #

.

WEBSITES •

*tt788www'lawtea1*er'net8free9law9essa6s8administrative9law8relations*i9between9 1onstitutional9law9and9administrative9law9administrative9law9

•

*tt788stati1'luiss'it8erasmuslaw8u08Ing*'*tml

•

*tt788www'lesner'1om81ms8+onstitutional:Law:and:Administrative:Law /-'as<

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Relation between adminstrative law and constitutional law

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