This article is written by Harmanjot Kaur Kang and the article is edited by Khushi Sharma (Trainee Associate, Blog iPleaders).
Table of Contents
Introduction
Every Indian parent has the dream job of carving their child into an IAS and IPS officer. However, there is a little knowledge about the powers and functions of these authorities. In this article, we would discuss the difference between the constitutional law and the administrative law. How the two are related to each other and what can be the scope of taking Administrative Law as optional in the UPSC exam.
Droit Administratif: Historical evolution
Meaning
It is the French Administrative Legal System which means a body of rules, which determines the organisation, powers and duties of the public administration and regulates the relation of the administration with the citizens of the country.
Droit Administrative does not represent the rules and principles enacted by the Parliament. Whereas, in case of India, we see that the system is the representation of the rules and principles enacted by the Parliament or Legislature.
It contains the rules developed by the administrative courts which regulates the relationship between public servants and citizens, public servants and government and public servant and public servant.
Historical Background of Droit Admininstratiff
Napolean Bonaparte was the founder of the Droit Administratiff. It was he who established the Counsel d’Etat (Council of State) and passed on the ordinance. It has the following effects:
- Deprived law courts of their jurisdiction and the administrative matters.
- Another ordinance that such matters could be determined only by Counsell d’Etat.
How the Droit Administratiff evolved?
During Louis XIV, the French Government was highly centralized and the executive authorities were arbitrary. Civil courts could not control them. So, Droit Administratiff came into existence before 20th century. Napolean Bonaparte overthrew the whole system and established court system.
Two Types of courts
Civil and Criminal Courts (Azize & Court of desassation)
Administrative Courts (Counsell D’Etat Court of the perfect)
Rules and Principles of Droit Administration
Rules of Droit Administratiff
Rules relating to the administrative officials’ administrative officials and authorities. These are related to the appointment and dismissal, status, salaries, duties etc. of the administrative officials.
Rules dealing with the operation of public services to meet needs of the citizens
These services may be operated either wholly by public officials or under the supervision of other agencies to provide the public utility services.
Rules dealing with the administrative adjudication
This deals with the concept that if there is any adjudication done to a private citizen by the administrative authority, it could be decided by the administrative courts. Here, Court D’Estat is the highest administrative authority.
Principles of Droit Administrative
Principle 1
The power of the administration to act suo motto (on its own) and to impose its decisions directly on the subjects, to make them obey it as a duty.
Principle 2
The power of the administration to take decisions and execute them ‘suo motto’. It may be exercised only within the ambit of law. It prevents the arbitrariness of the individual liberties against any arbitrariness.
Principle 3
The existence of a specialised administrative jurisdiction.
Criticism of the droit admininstratiff
- There are special privileges for the government officials and other persons.
- All the person irrespective of the status should be subject to the ordinary court only.
- Everyone should be governed by the laws passed by the ordinary legislative organ of the state which is completely missing in the administrative courts.
- It violates the modern provisions of the Rule of Law and Article 14 i.e. Equality in the eyes of law.
Modern Day concept
Position in USA
Delegate legislation is not allowed theoretically in the constitution of USA because of two reasons:
Separation of Power
Since the system of governance is based on the delegation based on the Presidential system of governance, there is a rigid form of separation of power. There is no reference of any text given in the constitution of USA which shows that it delegates its powers from the legislature to the executive.
Delegatus non-potest delegare
Once the power is delegated, it cannot be delegated again. The Congress was itself a delegatee, then how can the obligatory powers be delegated further?
Position in England
In England, the Parliament is supreme and there is no limitation by the constitution on the parliament. Also, Parliament in England has wide powers of the delegated powers and the legislation. There is the delegation of the executive powers in the hands of the subordinate authorities.
Position in India
In India, there are two constitutional limits of the legislation of the delegation. The power of delegation is subject to certain limitations that the legislation cannot delegate the essential functions determining the legislative policies.
There are certain permissible limits of the delegation of the power in the hands of the executive. In simpler terms, this means that the delegatee cannot have more powers than the delegator. In such a case, it would lead to a ultra-vires power.
Meaning, Nature and Scope
Administrative law is the study of law that governs the activities of the administrative agencies of the government which comprises:
- Legislative: Legislature rule making
- Executive: Implementation of law
- Adjudication: Adjudication or giving judgments
Some Notable Points
- Administrative Law is the branch of public law.
- It deals with the relationship of individuals with the government.
- It determines the organisation and power structure of the administration or the quasi-judicial authorities.
Definitions of Administrative Law
According to the Indian Institute of Law:
- Administrative law deals with the part and the functions of the administrative authorities.
- The procedure to be followed by these authorities in the exercise of such powers.
- The remedies available to the aggrieved person when authorities abuse of the powers
According to Ivor Jennings
“Administrative law is the law relating to the administration. It determines the organisation, powers and duties of the administrative authorities.”
According to Wade
“Administrative law is the law relating to the control of the governmental powers.”
According to him the primary object of the administrative law is to limit the powers of Government and to prevent citizens against their abuse.
According to KC Davis
“Administrative law is the law concerning the powers and procedure of the administrative agencies, including especially the law governing the judicial review of the administrative actions.”
What administrative law deals with?
Administrative law deals with the following problems:
- Who are the administrative authorities?
- What is the nature of the powers and nature exercised by the administrative authorities?
- What are the limitations if any imposed on these powers?
- How the administration is kept restricted to its limits?
- What is the procedure followed by the administrative authorities?
- What remedies are available to person that are adversely affected by the administration?
Nature and Scope of Administrative Law
The administrative law has a growing importance and the interest and it is most outstanding phenomenon in the welfare state today. Knowledge of the administrative law is as important for the officials as responsible for carrying on administration as for the students of law.
Not a codified Law: Administrative law is not codified like the IPC or law of the contracts. It is based on the constitution.
Judge made law: It is essentially a judge made law and it is a branch of public law which deals with the constitution and delegation of power.
Deals with the organisation: Administrative Law deals with organisation and powers of the administrative and quasi-administrative authorities.
Concerned with the official actions: Administrative Law is primarily concerned with the official action and the procedure by which official action is reached. Example: Rule Making, Rule Application, Monitoring actions or pure administration.
Control Mechanism: It includes control mechanism (judicial review) by which the administrative authorities are kept within bounds and made effective.
Authorities: Administrative law is derived from the authorities from the constitutional and statutory law.
Rights: Administrative Law relates to the individual rights as well as public needs and ensures transparency, open and honest governance which is more people friendly.
Means or the End: The study of the administrative law is not an end in itself, but it is a means.
Emergence and development: Administrative law emerges and develops wherever and whenever any person becomes the victim of the arbitrary exercise of the public power. Administrative law I not the branch of the philosophy of law, but of sociology of law.
Branches which govern: It is the body of law which governs the activities of the administrative authorities of the government. Government agency action includes rule making, rule adjudication, enforcement of specific regulations and the related agenda.
Sources of Administrative Law
Constitution of India
The constitution of India is the supreme governing body. We observe that there are various areas such as the fundamental rights, writs, directive principles of state policy, executive, legislative and judiciary, position of members of union public commission, tribunals etc., which form the basis of rule-making.
Acts and Statutes
We see that there are various laws such as Companies Law, Contracts Act, Administrative Tribunal Act, Ombudsman Act, Lokpal and Lokayukta Act which acts as a source of legislation.
Ordinances
When the parliament is not in session, the executive branch under Article 123 and 213 is given the permission to make the ordinances.
Rules
It is defined under the General Clause Act, 1897. It is the rule made in exercise of power conferred by any enactment. It may be applicable to a particular individual or general public.
Regulations and circulars
It signifies the decisions, orders and Acts of the government are made known to public. In the sphere of the administrative rule making, it means or it is related to the situation where power is given to fix the date for the enforcement of an Act. This can also be related to the exemptions from the rate fixing and prices.
Orders
It covers various types of legislative and quasi-judicial decisions. It may be specific or general. Specific orders refer to the administrative actions. General administrative rule making forms a part of such rule making source.
Directions
It is an expression of the administrative rule making under the authority of law or the rule made thereunder. These may be mandatory or recommendatory.
By-Laws
Rules made by semi-governmental authorities established under the Acts of the legislature.
Schemes and Notifications
It refers to the situation where the law authorizes the administrative agencies to lay down a framework within which the detailed administrative action is to proceed.
Judicial Decisions
The landmark judgements such as Puttaswamy case related to privacy, Maneka Gandhi vs Union of India related to right to travel abroad, Vishakha vs State of Rajasthan related to the prevention of sexual harassment of women at workplace, MC Mehta vs Union of India related to the control of the environmental pollution, PUCL vs UOI related to the rights of workers who are working in mines form the basis of the establishment of the ‘tests’ which may be used to clarify the scope of the provisions of the law and its interpretation. This includes the ‘Right to Food’ as well.
Conditional legislation and Administrative Directions
The legislature makes the laws but laws the executive bring it into operation when the condition demanding such operation are obtained. The executive has to decide whether the required conditions have been satisfied or not for the law to be in operation and if the required condition have been notified bringing the law into operation. This is called conditional legislation.
Relationship between Administrative Law and Constitutional Law
The relationship between the administrative law is not clearly marked out but the fact remains that the two are overlapping in several aspects. There exists a relationship which is fundamental in with if one were to represent the two branches of law in a Venn diagram, then both would have a common area known as the watershed area in the administrative law.
So, we see that constitutional law and the administrative law are parts of the public law. Keith said that it is impossible to distinguish administrative law and all the attempts to do so are artificial. Administrative law and constitutional law overlap at certain place and the area is termed as watershed in the administrative law.
In India, in the watershed one can include the whole control mechanism provided in the constitution for the control of the administrative authorities. These include Article 32, Article 136, Article 226, Article 300, Article 227, Article 311.
It may also include some administrative agencies to regulate a particular field i.e., Article 263 which creates the inter-state council. Similarly, we have Article 280, Article 262, Article 315 and Article 324.
Similarities between the constitutional law and administrative law
- Both are species of public law. This in other words means that both deals with the government and individuals and the relations among them and the institution of the government.
- Both deals with the distribution and the exercise of the governmental powers and functions. Where the constitutional law ends, the administrative law begins.
- Both are concerned with imposing boundaries and the accountability on those that exercise the governmental powers.
- Their application is founded on the constitutional study of the administrative law involves copious reference of the constitutional law.
- Both of them are concerned with the human rights issues.
- Both of them rely on the statutes and case laws for their principles and operations.
- The principles of both are enforced by the same institutions i.e., courts, law enforcement agents etc.
Dissimilarities of the Administrative and Constitutional Law
| Constitutional Law | Administrative Law |
| According to Holland, constitutional law describes various organs at rest. | Administrative Law describes various organs of the government in motion. |
| According to Ivor Jennings, Constitutional law deals with fundamentals. | Administrative law deals with details. |
| Constitutional law is majoritarian. | Administrative law is anti-authoritarian. |
| Constitutional law deals with general principles related to the organs and organisation and powers of various organs. | Administrative law deals with functions, organisation, powers, and duties of the administrative authorities. |
| This deals with rights. | It lays emphasis on the public needs. |
| It is the supreme law of land. | It is subordinate to Constitutional law. |
Reasons for the growth of Administrative Law
In India, since the Mauryan and Gupta age, there has been the administration of the legislation, rule adjudication and the related provisions. There were many reasons which accounts for the ridden growth of the administrative law. The following are the reasons for the growth of administrative law:
Concept of Welfare State
We can see the evolution of welfare state concept. The concept was developed during the 10th and 20th century. According to this concept, the State administration is to achieve maximum welfare of the masses.
Inadequate Judicial System
Judiciary was slow, costly, unexpected, complex and formalistic in nature. Overburdening of judicial system due to which speedy disposal was not possible, and also resulted in strikes and lockouts in disputes between employers and employees.
To solve above problems, need for tackling arose and as a result, industrial tribunals and labour tribunals and labour courts were established. These tribunals are not courts but executive authorities having judicial powers.
Inadequate Legislative
The legislature has no time to legislate upon the day-to-day ever-changing needs of the society. Detailed procedure made by the legislature were found to be defective and inadequate. All these resulted in the delegation of some of the legislative powers to the administrative authorities.
Scope of Experimentation
As the administrative law is not codified law, so there is enough scope of modification. As per the modification it as per the requirement of the state’s machinery. Hence, it is more flexible and the rights legislating the procedure need not be followed again and again.
Increasing demand from people
There was an increase in the demand for the from the people because merely defining the rights of the citizens was not sufficient but state needs to solve problems as well.
To take preventive measures
Administrative authorities can take preventive measures like licensing, rate fixing etc. They can also take effective measures for the enforcement of preventive measures like enforcement of suspension, revocation or cancellation of license, destruction of contaminated articles.
Increasing population
Increase in the population creates a burden upon the legislative processes to implement various laws for various needs of the growing population.
Case Laws
DS Nakara vs Union of India (1983)
Supreme Court held that in the case of a pension providing scheme to the government servants retiring before a particular date, there was discriminatory policy based on a fixed ‘cut-off’ date. It was held that such a decision would be arbitrary, discriminatory and ultra-vires.
Air India vs Nargesh Meerza (1981)
A regulatory provision which was framed by the Air India provided with the terms and conditions which held that in case the Air-Hostess would be pregnant, she would be terminated from the service. It was thereafter held that in such a case, there would be a violation of the Article 14, 15 and 21 of the air-hostess. It was held that such a law would be violative of the constitution and hence is arbitrary in nature.
DTC vs Mazdoor Congress (1991)
A resignation conferring the power on the authority to terminate the service of a permanent employee by giving him a three months’ notice would be ultra vires and held to be void.
Labh Chandra vs State of Bihar
In this case the prerequisites for the Jain Temple were as follows:
- Attained the age of 21 years
- Made a contribution of at least Rs. 500 or more
- Living in the State for the past 10 years
It was held by the Hon’ble High Court that the rules providing the management of the Jain Temple were arbitrary and discriminatory in nature. Hence, it was held that it was a violation of Article 14 of the constitution.
Narendra Kumar vs State of Uttar Pradesh
In this case the ordinance making power was challenged. It was held that instead of making multiple ordinances when the Parliament is not in sessions, it would be better if one would spare some time and make an Act or Legislation which would have the binding nature for all. This was done so that there could not be the misuse of the power in the hands executive officers.
Conclusion
Thus, we can observe that in most cases such preventive measures prove to be more effective than punishing person for the breach of any provision of law. Additionally, we see that today there is an evolution of the concept of welfare state and the responsibilities are continuously increasing every passing day. Thus, there should be adequate steps taken in order to do away with the changing trends and appoint people with the technical expertise in their respective fields. Today, we observe the evolution of administrative tribunals which are defined under the Article 323A and 323B of the Indian Constitution. We see here that the doctrine of the delegation of the power can be observed here as well constantly evolving with the passage of time. The role of judicial activism and judicial review are taking new shapes with every passing decade.
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