Administrative Law and Constitutional Law
Chapter Six
Syllabus topic 1.1, "Constitutional Law and Administrative Law" and "English Administrative Law and Indian Administrative Law"
Pages 30 to 34 of 396
In one line
Constitutional law describes the structure of the State at rest; administrative law describes the State in motion.
In the words a student can write in an exam: constitutional law deals with the structure, composition and powers of the principal organs of the State and with their relations to one another and to the citizen, while administrative law deals with the exercise of power by administrative authorities within that structure, the procedures they must follow and the remedies available against them. Both are branches of public law, both draw on the same constitutional provisions, and in India the distinction between them is one of emphasis rather than of subject matter.
The classical distinction
The traditional way of putting it, associated with English writers such as Holland, is that constitutional law describes the State at rest and administrative law the State in motion.
The image is exact enough to be worth keeping. Constitutional law tells you that there is a President in whom the executive power of the Union is vested, that there is a Council of Ministers, that there are Public Service Commissions, and that the High Courts may issue writs. It is a description of the machine. Administrative law tells you what happens when the machine is switched on and a particular officer refuses a particular licence: whether he had the power, whether he heard the applicant, whether his reasons were relevant, and what the applicant can do.
A second traditional formulation is that constitutional law is concerned with the organs of government and administrative law with the functioning of those organs. A third is that constitutional law deals with structure and powers, administrative law with procedure and control.
Where they overlap, and why the overlap is unavoidable
Every distinction offered above breaks down at the edges, and an answer that gives the distinction without the overlap is a weak answer.
Consider Article 311, which protects a civil servant against dismissal without an inquiry in which he has been informed of the charges and given a reasonable opportunity of being heard. Is that constitutional law or administrative law? It is in the Constitution, so it is constitutional law. It prescribes the procedure an administrative authority must follow before taking a decision about an individual, so it is administrative law. The honest answer is that it is both, and it is treated in this book in [Civil Services in India: Nature, Organisation, Powers and Functions].
The same is true of Article 14, which supplies the standard of non-arbitrariness that most of Module III applies; of Article 21, which is the constitutional foundation of natural justice; of Article 12, which decides whether a public corporation can be proceeded against by writ at all, as in [Liability of and Control over Public Corporations]; and of Articles 32 and 226, which supply every remedy the subject has.
Administrative Law and Constitutional Law
There is a reason the overlap is unavoidable in India specifically. Because there is no Administrative Procedure Act, Indian courts had to find the standards of administrative behaviour somewhere, and the place they found them was Part III of the Constitution. So Indian administrative law is built out of constitutional material. That is a genuine difference from England, where the standards came from the common law.
The two views
There are two respectable positions on the relationship and a student should know both.
They are two distinct branches with a common source. On this view, associated with English writers and with the way the subjects are taught, constitutional law is the genus and administrative law a species of it. The subjects have different questions, different literature and different examinations, and the fact that they share provisions does not make them one subject any more than criminal law and the law of evidence are one subject because a trial uses both.
They are one subject artificially divided. On this view, associated with writers such as Keith, there is no logical distinction, only a difference of degree; you cannot say where constitutional law ends and administrative law begins, and the division is a matter of convenience in teaching.
The position to take in an answer about India is the second, qualified: the distinction is one of emphasis and convenience rather than of principle, because in India the substantive standards of administrative law are themselves constitutional provisions, and the remedy in every case is a constitutional remedy under Article 32 or Article 226.
The distinction in a table
| Constitutional law | Administrative law | |
|---|---|---|
| Subject | The structure, composition and powers of the organs of the State | The exercise of power by administrative authorities |
| Image | The State at rest | The State in motion |
| Deals with | All three organs: legislature, executive, judiciary | Principally the executive and the bodies it creates |
| Typical question | Has Parliament the competence to enact this law? | Did this officer exercise this power lawfully? |
| Level of generality | General principles and structure | Detailed working, procedure and remedy |
| Source | The Constitution itself | The Constitution, statutes, delegated legislation and above all judicial decisions |
| Nature of rules | Largely written and entrenched | Largely judge made and changing |
| Relationship | The genus, and superior | The species; must conform to constitutional law |
The last row is the one that decides cases. Where a rule of administrative law conflicts with the Constitution, the Constitution prevails. Administrative law operates inside constitutional limits and can never rise above them.
A worked example: one dismissal, two subjects
Prakash Deshmukh is a clerk in a State government department. He is dismissed from service by an order which recites that his conduct has been unsatisfactory. He was never told what conduct was meant and never given a chance to answer.
Administrative Law and Constitutional Law
The constitutional law questions are about structure and power. Is the department part of the State? Under which entry of which List does the Act constituting the service fall? Does the post fall within a service under the State, so that Article 311 applies at all? Is the authority which dismissed him subordinate to the authority which appointed him, which Article 311(1) forbids?
The administrative law questions are about the exercise of power. Did the authority follow the procedure prescribed by the service rules? Was Prakash given notice of the charges and a reasonable opportunity of being heard? Were reasons given? Was the decision based on relevant material? Was the punishment so disproportionate that it can be interfered with?
The remedy belongs to both. Prakash will file a petition under Article 226, or an application to the State Administrative Tribunal constituted under the Administrative Tribunals Act 1985, with the High Court's jurisdiction under Article 226 preserved.
Notice that a lawyer preparing that case does not stop at any border between the two subjects. That is the practical meaning of saying the division is one of convenience.
What it does NOT mean
It does not mean the distinction is useless. It tells you where to look. A question about whether a statute is within the legislature's competence is answered from the Lists in the Seventh Schedule; a question about whether an officer heard the applicant is answered from the case law on natural justice. Knowing which kind of question you have been asked is half of answering it.
It does not mean administrative law is a minor part of constitutional law. In terms of the number of disputes it governs, administrative law is far the larger of the two. Very few citizens are affected by a question of legislative competence; almost every citizen deals with an administrative authority.
It does not mean the English distinction can be carried into India unchanged. In England the standards of administrative behaviour came from the common law, so the two subjects had genuinely different sources. In India they share a source, which is why the overlap is greater here.
Quick revision
- Constitutional law: the State at rest, structure, composition and powers of the organs of State. Administrative law: the State in motion, the exercise of power, procedure and remedies.
- Constitutional law covers all three organs; administrative law is concerned mainly with the executive and the bodies it creates.
- They overlap because in India the standards of administrative law are constitutional provisions: Articles 12, 14, 21, 32, 226, 227 and 311.
- Two views: distinct branches with a common source, or one subject divided for convenience. For India the second, qualified, is the better answer.
- Constitutional law is superior. Administrative law operates within constitutional limits and yields to them.
- The greater overlap in India, compared with England, follows from the absence of an Administrative Procedure Act: the courts took their standards from Part III.
Administrative Law and Constitutional Law
Test yourself
1. Distinguish constitutional law from administrative law. Constitutional law deals with the structure, composition and powers of the principal organs of the State and their relations to one another and to the citizen; administrative law deals with the exercise of power by administrative authorities, the procedure they must follow and the remedies available against them. Constitutional law has been described as the State at rest and administrative law as the State in motion. Constitutional law is general and concerns all three organs; administrative law is detailed and concerns mainly the executive. Constitutional law is superior, and a rule of administrative law that conflicts with the Constitution is void to that extent.
2. "In India the distinction between constitutional law and administrative law is one of convenience." Discuss. The statement is broadly correct. The two subjects share their source, because India has no Administrative Procedure Act and the courts derived the standards of administrative behaviour from Part III of the Constitution: non-arbitrariness from Article 14, fair procedure from Article 21, and the safeguards for civil servants from Article 311. Every remedy in administrative law is a constitutional remedy under Article 32 or Article 226, and whether a body is amenable to a writ at all turns on Article 12. The distinction nevertheless remains useful, because it tells a lawyer where to look: questions of legislative competence are answered from the Constitution's distribution of powers, questions of procedural fairness from the case law.
3. Give three examples of provisions that belong to both subjects. Article 311, which is in the Constitution but prescribes the procedure for dismissing a civil servant; Article 14, which is a fundamental right and also the standard by which administrative arbitrariness is judged; and Articles 32 and 226, which are constitutional provisions and also the source of every administrative law remedy. Article 12 may be added, since it determines which bodies are subject to writ jurisdiction.
4. Why is the overlap greater in India than in England? Because the sources differ. In England the standards of administrative behaviour were developed out of the common law, so administrative law had a source of its own distinct from constitutional law. In India there is no codified administrative procedure and no comparable body of common law, so the courts built the subject on constitutional provisions, principally Articles 14, 19 and 21, and on the writ jurisdiction conferred by Articles 32 and 226.
Administrative Law and Constitutional Law
5. Which prevails if a rule of administrative law conflicts with a constitutional provision? The constitutional provision. Administrative law operates within the limits set by the Constitution. A rule, regulation or order inconsistent with a fundamental right is void under Article 13, and a statutory provision conferring administrative power is itself subject to the Constitution.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.