This article is written by Sakshi Kuthari. This article discusses in detail the difference between constitutional law and administrative law along with a tabular representation of the same. While doing so, this article briefly discusses their meaning, nature and scope, background, and sources. Further, the article explains the relationship between constitutional law and administrative law.

Introduction

Generally, a common question arises at the time of studying law as to whether there is any distinction between constitutional law and administrative law. Until now, administrative law has been studied and discussed in constitutional law books. There was no separate and independent study for it. In the definition of constitutional law, the definition of administrative law was included. In a modern and welfare State, there is not much difference between the two laws as both of them are concerned with governmental functions and are a part of public law. It is not possible to find the dissimilarity between the two laws strictly.

In India, constitutional law constitutes an important source of administrative law and the reason for its origin. Administrative law emanates from constitutional law. In the absence of a Constitution of a country, it is impossible for administrative law to  come into existence and perform its functions. The reason behind this is that administrative law is totally dependent on the soul of any country’s constitutional law. The constitutional law and administrative law are closely interwoven and constitute a platform for a reasonable government. For the purpose of actually differentiating between the two laws, it is necessary to have their brief conceptual knowledge and understanding. 

Let us now discuss constitutional law and administrative law in detail.

Views of various jurists on the difference between Constitutional Law and Administrative Law

Various definitions have been opined by various jurists which try to distinguish between constitutional law and administrative law. The different jurists have different views on distinguishing between the said two laws and those are as follows:

• Holland in his book “Constitutional Law of England” describes constitutional law as the various organs of the government at rest, while administrative law describes them in motion. It can be conferred that the structure of the legislature and the executive comes within the purview of constitutional law and their functioning comes within the purview of administrative law.
• A renowned scholar in the field of constitutional law, Frederic William Maitland, does not agree with Holland’s classification. Maitland in his book “Constitutional History of England” defined “constitutional law” as dealing with the structure and rules of legislature and executive which regulate their functions, while the details of the functions are dealt with under “administrative law”. 
• Ivor Jennings, in his book “The Law and the Constitution” explains constitutional law as dealing with the general principles relating to the organisation and powers of various organs of the State and their mutual relationships and relationship of these organs with the individual. While, administrative law deals with the organisation, functions, powers and duties of administrative authorities. Therefore, it can be said that constitutional law deals with the fundamentals while administrative law deals with the details.
• Hood Phillips in his book “Constitutional and Administrative Law” stated that “constitutional law is concerned with the organisation and functions of Government at rest, whilst Administrative law is concerned with that organisation and those functions in motion.”

Difference between Constitutional Law and Administrative Law

For the purpose of understanding the difference between the two types of law, we shall discuss in detail their points of difference.

Meaning

Constitutional law

There exists no hard and fast definition of the term “constitutional law”. Wade and Phillips, define the word “constitution” as a document having a special legal sanctity which sets out the framework and the principal functions of the organs of the government of a State and the principles governing the operation of those organs. 

The constitutional law of a country regulates the structure of the principal organs of the government and their relationship with one another. It also determines their functions respectively. The rules consist of both legal rules commonly known as “conventions”. These conventions are enacted and accepted as binding by all who are concerned in the Government. 

Many of these rules and practices under which our Governmental system functions are not part of the law in the sense that their violation may lead directly to proceedings in a court of law.

The constitutional law includes the Constitution, statutory laws, decisions of the court, etc. The term “constitutional law” is broader than the term “constitution”. The Constitution of a country is a unique legal document which provides the fundamental principles for the functioning of the State and directions for a State, its administrative authorities and their powers, the fundamental rights of an individual, etc.

A country’s constitutional law, in general, consists of both ‘legal’ and ‘non-legal’ norms. Legal norms are the types of norms which are enforceable and applicable in the court of law. Where a violation of a legal norm takes place, both relief and redressal are provided by the court. The ‘non-legal’ norms consist of practices followed for a very long time but do not have the force of law. They are in the form of conventions, usages, customs, etc.

To know more about the meaning of constitutional law, click here.

Administrative law

Just like constitutional law, it is difficult to arrive at a precise and scientific definition of administrative law. Various jurists have tried to define administrative law, but no definition is able to completely demarcate the true meaning. Administrative law aims to protect the rights of the individual, ensure governmental accountability and that the administrative authorities are able to perform the assigned tasks. Some of the important definitions of administrative law are as follows:

• The definition of “administrative law” as given by Sir Ivor Jennings’ is broad and reflects a balanced approach when he says that “administrative law” is the law relating to administration. The organisation, powers and duties of the administrative authorities are covered within this definition.
• Professor Hart says that the “administrative law” includes law that is made by judges as well as the law that controls the administrative authorities of a government.
• A.V. Dicey given the definition of “administrative law” as relating to that portion of a nation’s legal system, which determines the legal status and liabilities of all State officials, defining the rights and liabilities of private individuals in their dealings with public officials and specifying the procedure by which those rights and liabilities are enforced.

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Nature and scope

Constitutional law

• A country’s Constitution may be federal or unitary in nature. It also depends on the type of government existing in a particular country. A federal Constitution establishes dual polity. These two types of government have both the right and authority to act within their prescribed limits and cannot intrude upon the field of the other government. 
• The powers are fairly distributed amongst the Central and State Governments in a federal Constitution. The countries that have a federal Constitution are India, the USA, Canada, Australia, Germany, etc. A unitary Constitution is not much complicated as compared to a federal Constitution. A Unitary Constitution is a type of legal document that comprises governance by only a single Central Government. All the powers are concentrated in the Central Government and they can also delegate their powers to the administrative agencies. The countries having a unitary Constitution are Britain, Sri Lanka, Singapore, etc.
• A Constitution of a country can be of written or unwritten form. A written Constitution is in the form of a written document. In the United Kingdom, the Constitution is unwritten as it is not integrated into one single document. It is divided into different statutes which define some of the constitutional principles, the court’s decision, the principles of common law, and usages and conventions. The “sovereignty of the Parliament” is the central doctrine of the British Constitution. 

The Parliament has the power to make or unmake a law. This principle is a concept based on tradition which is recognised and enforced in the court of law. According to Keeton, the major limitation of an unwritten Constitution is that it deprives the citizens of that country of a fundamental starting point from which all Constitutional law can be obtained. There is no grundnorm from which the individual norms of Constitutional law can obtain their validity.

Today, most of the Constitutions are in written form. The US Constitution in 1787, the Canadian Constitution in 1867,  the Australian Constitution in 1900, and the Indian Constitution in 1956, all had their Constitution in a written form. A written Constitution is considered the formal source of all Constitutional law in a country and a supreme or fundamental law of the land. 

The Constitution of a country controls and permeates each institution in the country. A written Constitution also derives some conventions and customs, which bring the Constitution in conformation with the evolving social and economic changes. It is not impossible for a written Constitution to have all the detailed rules for the working and administration of different bodies and institutions in the country.

Regarding the nature of the Indian Constitution, the Hon’ble Supreme Court in the case of Kesavananda Bharati Sripadagalvaru & Ors. vs. State of Kerala & Anr. (1973) observed that the Indian Constitution is unique, besides being the longest in the world. It was stated by the court that the Indian Constitution is made for a diverse population with diverse people speaking different languages and professing different religions is the product of national consensus and represents the will of the people of the country. It was further stated that the Constitution is supreme in India, all the organs and bodies owe their existence to it. 

None can claim superiority over the other and each of them has to function within the four corners of the Constitutional provisions. The court also observed that all the functionaries take oaths of faithfulness towards the Constitution and derive their authority and jurisdiction from its provisions. Its place is higher than legislation because the validity of the latter is determined with reference to the former. The Constitution has entrusted to the judiciary the task of construing the provisions of the Constitution and safeguarding fundamental rights.

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Administrative law

Unlike the Indian Contract Act, 1872, the Bharatiya Nyaya Sanhita, 2023, the Transfer of Property Act, 1882, the Bharatiya Sakshya Adhiniyam, 2023; The Constitution of India, etc., the administrative law is not codified or well-defined. Essentially, it is an unwritten, uncodified or judge-made law.  Let us now identify the nature and scope of administrative law, which are given in the below points.

• It is a branch of public law in contra-distinction to private law which deals with the relationships of individuals inter se;
• It deals with the organisation and powers of administrative and quasi-administrative agencies;
• It studies the existing principles and also the development of certain new principles which administrative and quasi-administrative agencies must follow while exercising their powers in relation to individuals;
• It concerns itself with quasi-legislative, quasi-judicial, administrative or purely administrative actions; and
• The focal point of the study of administrative law is the reconciliation of power with liberty. 

In India, the study of administrative law holds an important place. It is because, in a welfare State, a number of governmental schemes are brought for the society’s growth and upliftment. These schemes, when executed and implemented, affect the rights of citizens in a positive way. Therefore, it is necessary for the social and welfare State to keep in primacy all the rights of individual subjects.

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Historical background

Constitutional law

The Constitutional law of a country acts as a legal device for preventing tyranny and protecting the human rights of a person. For the purpose of putting a limit and control on the governmental powers and the conduct of the governmental officials, the constitutional law of a country puts the rules and regulations in the documented form. The framers of the American Constitution have a significant contribution to the development of constitutional law. Their exclusive contribution brought the development of constitutional law and also helped in determining a model for true constitutionalism which has been followed widely by the rest of mankind.

In India, the Constituent Assembly brought the Indian Constitution into existence. The Constituent Assembly first met and began work on 26 November 1946. Dr. Sachidanand Sinha, the oldest member, was elected as the temporary President of the Assembly on the said date. Later, on 11 December 1946, Dr. Rajendra Prasad Sinha and H.C. Mukherjee was elected as the permanent President and Vice-President of the Assembly respectively.  On 13 December 1946, Jawaharlal  Nehru moved the historic “Objective Resolution”. This resolution defined the aims of the Constituent Assembly.

On 26 November 1946, the Indian Constitution received the Presidential assent. It contained 395 Articles spread over 22 Parts and 12 Schedules. The final session of the Constituent Assembly was held on 24 January 1950, where it unanimously elected Dr. Rajendra Prasad as the first President of the Republic of India under the new Constitution which came into force on 26 January 1950. It took 2 years, 11 months and 18 days for the Constituent Assembly to draft the Indian Constitution. 

The said time period taken by the Constituent Assembly was because the constitution makers wanted to strike the right balance between law and order for the people of India so that the institutions under the Indian Constitution were not created haphazardly. In a way, it accommodated the aspirations of the people of India for a longer span of time.

To know more about the historical background of constitutional law, click here and here.

Administrative law

During the last century, the role and functions of the country have gone through tremendous changes in almost every country of the world. From laissez faire to paternalism and from paternalism to materialism, the change has been seen. Administrative law in India owes to constitutional law. There are a number of reasons which brought a growth in administrative law. With the changing times, the needs of the people are changing. The legislature has, therefore, made administrative law a separate legal branch of law. Administrative law keeps a check and balance upon arbitrary State actions. This law is essential for protecting the rights of the people at large. Just as the needs of people are changing with time, the role of the government is also changing. 

In developing countries like India, the role of the government is of a provider, not of a facilitator and regulator. Also, with the changing times, the expectations of the people are high from the government of their country. Today, the role of the government is not limited to protecting the rights of the people from external aggression and internal disturbances but also to take care of every citizen from the mother’s womb to the tomb. Hence, the development and growth of administrative law has become the backbone of modern political philosophy.

After India’s independence, the philosophy of the welfare State was made the creed of the Indian Constitution. The welfare and socialistic aims and objectives of the State could not be achieved without the growth of the administrative process. Articles 323-A and 323-B of the Indian Constitution provide for the establishment of special tribunals to meet the ends of administrative justice. All the legislative actions of the administration have been brought under Article 13 of the Indian Constitution, which defines “law” so as to include an order, by-law, rule and notification, etc. They all have the force of law. 

Therefore, the rule-making action of the administration can be challenged for being ultra vires in the delegating statutes and also for violating the fundamental rights of the citizens. An act of an administrative agency can also be declared null void if it violates the constitutional provisions even outside the provisions of Part III of the Constitution.

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Sources

Constitutional law

The Indian Constitution has various sources. Some of the essential features borrowed from the various Constitutions of the world are as follows:                                                                                                                                                                                                                                            

• Federal scheme from the Government of India Act, 1935;
• Parliamentary Government and the principle of rule of law from the British Constitution;
• Judicial review from the U.S. Constitution;
• Directive Principles of State Policy (DPSP) from the Irish Constitution;
• The provisions for the suspension of fundamental rights during an emergency in the country or any part thereof from the Weimar Constitution of Germany;
• Fundamental duties from the Soviet Constitution (USSR, not Russia);
• Procedure for constitutional amendment from the South African Constitution; and
• Procedure established by law from the Japanese Constitution.

The above is not an exhaustive list.

To know more about the sources of constitution law, click here.

Administrative law

In the US, the sources of administrative law are statutes, common laws, and implied powers of the administration. In the UK, the sources of this law are statutes, precedents, subordinate legislation, and important case laws. Now, the question arises as to what are sources of administrative law in India. The following are chief sources of administrative law in India:

1. Constitution: The Indian Constitution provides for the constitution of the executive organ of the government and the exercise of the powers at the time of emergency. At the time of studying administrative law, it is studied in relation to the administrative acts of either the administration or their quasi-judicial bodies. The methods by which the administrative acts are interfered with are by the use of the prerogative or writs issued in the Supreme Court and High Courts in India under Articles 32 and 226.

The concept of rule of law has paved the way for the study of administrative law. The Hon’ble Supreme Court, in the case of Indira Nehru Gandhi vs. Shri Raj Narain & Anr. (1975), Hon’ble Justice Ramaswami stated that the rule of law is important in a country for the purpose of preserving fundamental democratic values and also the basic structure of the Indian Constitution. The Hon’ble Supreme Court in A. K. Kraipak & Ors. Etc vs. Union Of India & Ors (1969) held that every State organ is governed, regulated and controlled by the rule of law.

2. Statutes: The statutes also constitute an important source of administrative law. The statutes usually emanate from the Constitution. The administrative powers of the different administrative authorities are guaranteed under different statutes and all such powers have to be exercised in conformation with the respective statutory laws. Here, the ‘statutes’ cover both the Parliamentary Acts and delegated legislation. The Acts of the Parliament deal with the public general acts, and private or local Acts. The delegated legislation or subordinate legislation includes statutory instruments in the form of statutory rules and orders. Thus, it can be said that statutes constitute an essential source of administrative law.
3. Judicial pronouncements: The contributions of the courts have not been less laudable towards the growth of Indian Administrative Law. The judicial pronouncement exhibited considerable expansion of the right to a hearing, judicial control of discretionary powers, judicial review over the administration in general and promotion of open government. The landmark judgement of Maneka Gandhi vs. Union of India (1978) is a significant example to illustrate the above-mentioned rights over administrative actions.
4. Reports: The reports made by various bodies also constitute an important source of administrative law. The important reports in this respect are the Report of the Committee on Minister’s Powers, the Frank Committee Report and the Reports of Administrative Reports Commission.
5. Ordinance: Ordinance is also regarded as an important source of administrative law. The President and Governor have the power to promulgate an ordinance at the time when the Parliament and State Legislature are not in session under Article 123 and Article 213 of the Indian Constitution respectively. It becomes flexible at the Union and State level to make laws which are important at the time of proclamation of emergency. These ordinance-making powers of the President and the Governor are subject to certain limitations. The Governor also has the power to promulgate an ordinance on the advice of the Council of Ministers. The Hon’ble Supreme Court in Rustom Cavasjee Cooper vs Union Of India (1970)  held that, if an ordinance is issued on any collateral grounds, then it can be challenged before the Hon’ble Supreme Court.

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Functions

Constitutional law

The constitutional law of a country prescribes the foundational principles of a State. The constitutional law provides rights and responsibilities of the citizens of a country, mostly as a part of the fundamental rights under Part III and fundamental duties under  Part IVA of the Indian Constitution. The constitutional law creates and administers the country’s political institutions, their constitution, authority, responsibilities, and inter-relation between them is also provided. Any act of the governmental organ or its subordinate authority contrary to the assigned powers is considered unconstitutional. 

Even though the Constitution is created by the government, still the Constitution gives the powers to the different organs of the government and also limits their powers, where necessary. Any exercise of power beyond the prescribed rules and regulations is declared null and void. The judiciary is regarded as the interpreters and guardians of the Constitution. It is their duty to scrutinise every governmental act and is not inconsistent with the constitutional provisions. If a legislative or an executive is inconsistent with any provision of the Constitution, the court can declare the said law or act unconstitutional. The judiciary keeps a check and balance upon such laws and acts so that the provisions of the Constitution are not violated by them.

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Administrative law

The administrative law plays an important role in finding out the ways by which the administration could be kept within the limits. It is necessary to keep the administration within limits so that the discretionary power of the administrative authorities does not become their arbitrary power. The function of administrative law is to conform with the administrative action and provide democratic safeguards and standards of fair play as per the rules and regulations of the government.

The primary function of administrative law is to keep the powers of the government within the limits of the law and to safeguard both public and individual interests. At present, the role of the State is to act as a protector, provider, entrepreneur, regulator and arbiter. The rule-making power (delegated legislation) and the authority to decide (administrative tribunals) are regarded as a necessary weapon in the field of administrative law.

The administrative law deals with the powers of the administrative authorities, the manner in which the powers are exercised and the remedies which are available to the aggrieved persons. These remedies can be availed by an aggrieved person when the administrative authorities abuse their powers. Simply speaking, administrative law is the science of the powers of administrative authorities. If the rights of a person are affected by an administrative action, that person has a right to challenge such an administrative action before the appropriate authority designated by law or in a court of law. It can be challenged before a prescribed authority or a court of law. 

Even if no remedy is provided by a statutory enactment or the action taken by such authority is treated as final, an aggrieved party may invoke Articles 226, 227, 32 or 136 of the Indian Constitution for redressal of grievances. Administrative law is thus based on the well-known legal maxim ubi jus ibi remedium (where there is a right, there is a remedy).

Legal scholars are of the opinion that the administrative law has given rise to the law of equity. In certain countries, there are laws which lay down the rules, principles and procedures for the administrative agencies to be followed.

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Tabular representation of the difference between Constitutional Law and Administrative Law

With the help of a tabular chart, let us now discuss the difference between the two laws:

Basis of classification	Constitutional Law	Administrative Law
Meaning	Constitutional law means the rule which regulates the structure of the principal organs of the government and their relationship to one another, and determines their principal functions.	Administrative law is the study of laws that governs the activities of government administrative agencies.
Deals with	The constitutional law of a country deals with the interpretation as well as the implementation of the Constitution and its underlying principles.	Administrative law deals with the relationship of individuals with the government.
Hierarchy of laws	Constitutional law is the supreme and highest authority of law. It is always regarded as the genus.	Administrative law is subordinate to Constitutional law and is a species of it.
Nature of law	Constitutional law is anti-majoritarian. It is a type of belief that opposes the primacy of any particular religion, social, or linguistic group solely on the basis of it forming a majority within a country’s population.	Administrative law is anti-authoritarian which means submission to authority and complete obedience.
Scope of authority	It has a wide scope. Constitutional law deals with the structure of the State in relation to the organisation and powers of the State organs.	It has a narrow scope. Administrative law deals with the various functions of the State and administrative authorities
Sources	The salient features of the Indian Constitutions have been borrowed from various countries like the U.K., U.S., Ireland, South Africa, etc.	The sources of administrative law are the Constitution, statutes, ordinances, judicial precedents, etc.
Codification	Constitutional law is codified into a single text in countries having a written Constitution.	Administrative law is not codified since it only deals with the powers and functions of administrative authorities.
Focus of law	The constitutional law focuses on the rights of the public.	Administrative law focuses on the needs of the public.
Structure of the government	The structure of the legislative and the executive come within the ambit of constitutional law.	The functioning of the legislative and executive comes within the ambit of administrative law.
Functions	The constitutional law of a country guarantees fundamental rights, imposes fundamental duties on the citizens of a country, establishes the structure of government, among other functions.	The administrative law oversees the internal operation of the administrative agencies. It stipulates the functions of the administrative agencies which is enforcement of the laws within their prescribed limits.
Relation to public servants	It is concerned with the constitutional status of ministers, civil servants, etc.	It is concerned with the organisation of services and the proper functioning of the governmental departments.

Relationship between constitutional law and administrative law

After discussing in detail the difference between constitutional law and administrative law, we can come to the conclusion that today administrative law is a separate and independent branch of law. It might be possible that, sometimes, the two may overlap with each other. The place where they may overlap may be termed as the “watershed” in administrative law. 

The “doctrine of the watershed” gives a basis to make a demarcation for the functioning of both laws. The study of the administrative agencies is provided in the Constitution itself by establishing the Inter-State Council (Article 263), Finance Commission (Article 280); Inter-State Water Dispute Authority (Article 262), Public Service Commission (Article 315); and Election Commission (Article 324). It may further include the study of constitutional limitations on the delegation of powers to the administrative authorities and also those provisions of the Constitution like the fundamental rights (Part III of Indian Constitution) which put a check and balance upon the administrative actions.

Conclusion

It is important to know the difference and the relationship between constitutional law and administrative law. These two laws are a part of public law and they cannot be made independent of each other. But with the changing times and demands of individuals, it is important to make a distinction between the two laws so as to define their area of functioning and their jurisdiction as well. The need for introducing administrative law was felt for the purpose of meeting the demands of both the people and the State. 

Therefore, there is now a need to separate the two laws from each other. The difference between the two laws shows that administrative law and constitutional law are both supplementary and complementary to each other. At times, they may intersect with each other at certain places. There may be a number of arguments on the same, but the fact remains that today administrative law is regarded as a separate and independent branch of law.

Frequently Asked Questions (FAQs)

What is “Droit Administratif” ?

The concept of “Droit Administratif” originated in France. It is a branch of public law and deals with the organisation and duties of public administration. It provides the rules and regulations for regulating the relations of administration with citizens of the State.

What is meant by a “review process”?

The study of administrative law provides a control mechanism by which various administrative agencies are kept within limits and made effective for the purpose of serving individuals. This control mechanism is known as the “review process.”

References

• https://blog.ipleaders.in/constitutional-law/#Functions_of_the_Constitution
• Administrative Law by I.P. Massey
• Administrative Law by C.K. Takwani