This article is written by Richa Goel of Banasthali Vidyapith in which she has discussed the relationship between constitutional law and the administrative law, and their sources, background, etc.
In the present era, administrative law is recognized as a separate branch of legal studies but at the same time, the disciplines of the constitutional administrative law may overlap with each other at a certain place which is known as water shades in administrative law. It can include the whole control mechanism provided in the constitution for the control of administrative authorities which is Article 32, 136, 267, 227 and 311. It may also include inter-state council; Article 263, finance commission; Article 280; interstate water dispute authorities; Article 262, public service commission. It may also include the limitation imposed by constitutional laws on delegations of powers to the administrative authorities. So the watersheds under administrative law show that administrative law is not totally independent from constitutional laws. But it is interred related to each other. The difference between the two itself shows that both are supplementary and complementary to each other.
“It is logically impossible to distinguish administrative from constitutional law and all attempts to do so are artificial.”
“The constitutional law describes the various organs of government at rest, while administrative law describes them in motion.”
So we can say that the structure of legislature and executives is the subject matter of constitutional law and its functions are the subject matter of administrative law. Both these subjects are closely connected to each other and form the platform for proper, responsive and accountability of the act to the government. Constitutional law is core law which gives very life and blood to the administrative law. Anything which is derogatory to the words and spirit of constitutional law is ultra vires and void ab initio so it must be noted that if we really want to comprehend of constitutional law and administrative law then we need to have a strong understanding.
The relationship between constitutional law and administrative law is very complicated. The origin of administrative law depends upon constitutional law. When we got independence in 1947 then at that time the aspirants of the people were enshrined from various Articles from our supreme constitution which is a legal document and which is a platform for the proper functioning of the administrative settlement of administrative authorities. In countries like India, which has its own written constitution, there is an additional control over administrative actions by the constitutional law which imposes limitations upon the organs of the administrative body. So in a country having a written constitution with judicial review, it is impossible to separate administrative law from the constitutional law completely.
The relationship between the administrative law and constitutional law is not very watertight, sometimes administrative law invades into the territory of constitutional law, so it is very important for jurists, scholars and law students to develop a proper understanding between the relationships between these two. Both constitutional law and administrative law are parts of the public law which shows that constitutional law is the mother of administrative law and it cannot be totally separated from each other.
In constitutional law, arbitrary action is limited by the norms and principles of administrative law of fairness, reasonable and justness. Administrative law deals with the organizations, powers, functions, and duties of administrative authorities, on the other hand, constitutional law deals with the general principles relating to the organization and powers of various organs of the state and the relationship of these organs with the individuals. The constitution describes the various organs of the government at rest, while administrative law describes them in motion. It may be pointed out that constitutional law deals with the rights and administrative law focus on public needs.
It is a necessity of time to draw a line of between these two laws in order to define the territory of the functioning of the jurisdiction of both the laws.
The doctrine of water shades is very important as it gives a base to establish a line of proper demarcation of the proper boundaries for the functioning of both the laws. It defines the relationship between the constitutional law and Administrative law which was defined by various English authors like Dicey and Holland which is already discussed above. Their definition clearly states that the laws are dependent and interconnected to each other.
There are various reasons and the need for the growth of the administrative law. With the passage of time and circumstances, the needs of the people and state are also changing therefore, the legislature makes the administrative law as a separate legal discipline. Administrative law controls the arbitrary action of the legislative authority which is very essential for the protection of public rights and duties.
The role of government is also changing with the passage of time. In developing countries like India, the role of government is wider because it acts as a provider instead of facilitator and regulator. Today, the expectations of the people from the government are very high. So, the role of government is not only to protect the people from external aggression and internal disturbances but also to take care of every citizen from the mother’s womb to grave. Therefore, the development and the growth of administrative became the backbone of modern political philosophy. Hence, there is a great need to separate administrative law from constitutional law because it is the demand and need of the people and the state but still administrative law and constitutional law cannot be completely separated from each other because they overlap at certain places which are known as water shades in administrative law. It contains various provisions and mechanism of constitutional law which shows that constitutional law is the mother of administrative law and so a child cannot be separated from his mother completely. In today’s world, there is no need of government to just define the rights of the individual but there is a need for solving the problem of public. The government has to come forward to actively protect the weaker section of the society rather than defining the rights which are already written in the Indian constitution. So these needs imply the growth of administrative law and process.
Today everyone feels that it is the duty of the government to resolve the conflict and maintain peace and harmony between the individuals and state which is very essential for the overall development of the nation. The production and distribution of resources according to the requirements of the people and the state is also a great responsibility of the good government, so this again has led to the growth of administrative law and process.
In modern times, the development of science and technology and control over it is also considered as the responsibility of the government. Due to the development of science and technical industries, various problems may arise such as unemployment, over-exploitation of natural resources, haphazard urbanization so this multi-dimensional problem cannot be solved except with the growth of administrative law.
The main reason behind the development and growth of Administrative process and law can be the inadequacy of the traditional type of courts and lawmaking organs which are not able to give the performance which is required in the present time for the proper functioning of welfare and functional government. In modern times, there are needs of technical nature of legislation, flexibility with quick action and the quality performance of the government. The traditional legislative organs cannot pass the quality and quantity of laws which are required for modern times. So it is also a great reason behind the growth and development of Administrative laws and the legislative process. Administrative agencies were also required to maintain the record of facts, evidence and the decision.
Administrative law has become the most eminent feature of the government in today’s era and at the same time, it is also the most ancient. Administrative law was alive even in ancient times. The history of the same can be traced back to the Mauryas and Guptas who have a well-organized and centralized administration. The rule of Dharma was in action. Every man of the monarch observed this rule and no one claimed immunity. It was said that the administration could only be run on the principles accepted by dharma and thus was followed by the kings and his officers. Principles such as natural justice and fairness were few of the power which was in the ambit of dharma. The parameter of dharma was wider than the rule of law or due process of law.
Administrative law also existed in England but there it was not adopted as a separate branch of legal discipline until the emergence of the 20th century.
“There was no administrative law in England”.
“In England, we know nothing of Administrative law and we wish to know nothing about it”.
“During the last thirty years due to the increase of duties and authority of English officials some elements of Droit have entered in the law of England”.
“Unfortunately, Dicey misunderstood the scope and ambit of Administrative Law. While studying the rule of law, he excluded altogether administrative law and a special system of administrative courts”.
“The study of Administrative law has to suffer a lot because of Dicey’s conservative approach”.
“It may truly now be said that we have a developed system of administrative law”.
So, from the above discussion, we can conclude that according to some authors there was no existence of Administrative Law in England while some other authors or scholars have the view that there is an existence of Administrative law in England. Before the emergence of the 20th century, the Administrative law existed in England but it was not adopted and accepted as a separate branch of law.
Administrative law came into existence for fulfilling the needs and the demands of the people and state. So, due to this reason both Constitutional law and Administrative law are separated from each other. Though they still overlap at certain places and cannot be completely separated from each other because the origin of Administrative law exists in Constitutional law. There is a need for this law as a separate legal discipline to control the arbitrary action of administrative authority and protect the rights of an individual and public at large. Its essence is found in every branch of law, which cannot be ignored.
For a better understanding of Administrative law and its functions, it is necessary to know about the sources of it. In India, the Administrative law is the part of ordinary law of land. The sources of Administrative law in India are different from other countries like America and England.
In America, the sources of Administrative law are statutes, common laws, and implied powers of the administration.
In England, the sources of this law are statutes, precedent, subordinate legislation, and significant case laws.
Constitutional law is the most important source of Administrative law in India. It is the origin and soul of Administrative law. In other words, we can say that constitutional law is the mother of Administrative law. So, without a constitution, Administrative law cannot perform its functions and work properly because it totally depends on the soul of our country’s constitutional law. Statutes are also a great source of this law. It also came from the constitution. State legislature gives the lawmaking power to parliament. The power for administration have been even guaranteed under statues and all such powers have to conform to the statutory pattern.
The ordinance is also a good source of this law. It empowers the President and Governor to promulgate during the recess of parliament under Article 123 and during the recess of state legislature under Article 213 respectively. This provision brings flexibility on the level of union and the state to make laws which are necessary for the emergency situations and circumstances in which certain laws and acts declared void by courts of law. The Chief Executive has the great ordinance making power but it cannot be unlimited. Ordinances can be issued by the Governor on the advice of Council of Ministers. There are a need and the requirements of approval for the confirmation of ordinance.
In the case of Bank nationalisation case, the Hon’ble Supreme Court held that:
“If an ordinance is made on collateral grounds then it can be challenged before the Supreme Court”.
Later on in S.R. Bommai v. Union of India, the Supreme Court has held that proclamation of emergency on ground of failure of constitutional machinery under Article 356 is subject to judicial review. Accordingly, Presidential Rule in certain states was held to be unconstitutional.
So, the conclusion of this Article is that the “Watersheds” is the area where both the laws overlap with each other. In present time Administrative law is recognized as a separate and independent legal discipline from Constitutional law but in reality, it is not so. There are various provisions and mechanism of constitutional law which deals with the administrative law and in the same manner, some functions and works of administrative law which are totally dependent on Constitutional law. So in this way, they are interlinked to each other and they cannot be separated completely. In other words, we can say that watersheds work as a bridge between the two laws. This new law came into existence on the needs and demand of the time and circumstances. It controls the arbitrary action of legislative authority and protects the rights of the public. There are various sources of this law in which Constitutional is the main. Administrative law is nothing without the constitution as its origin is deeply rooted in the womb of the constitution.