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DIVIDING THE LINE BETWEEN CONSTITUTIONAL LAW AND ADMINISTRATIVE LAW

INTRODUCTION

The rules, doctrines, and practices governing the political community in the modern state are all a part of constitutional law. Constitutional law is the result of nationalism and the emergence of modern nation-states, where the source of the law of the country is the constitution.[1] Administrative law is an older notion of law, as compared to constitutional law, and stems from the need to create a system of public administration under law.[2] Both of these streams of law are often mistaken to be the same, which is incorrect, and thus there arises a need to differentiate between the two so that there remains no ground for doubts regarding the differences existing between the two. These two streams of law are to be taken and treated differently when it comes to identifying the law within a country. It is perfectly possible, and common, for both these types of law to exist and function together, and to overlap on several occasions. However, there is a fine line of difference between the two, which this blog aims to bring forward.

DIFFERENCES BETWEEN CONSTITUTIONAL AND ADMINISTRATIVE LAW

To the early English authors, there appeared to be no difference when it came to constitutional law and administrative law. They were considered to be the same thing. Keith, one such early English writer, believed that “It is logically impossible to distinguish administrative from constitutional law and all attempts to do so are artificial.”[3] No principle or rule as such helps to distinguish between the two. It is rather a matter of degree, inconvenience, and custom that helps in differentiating between the two. For many, both branches are the same, and administrative law was mainly dealt with within the ambit of constitutional law. There have been numerous attempts to make sense of this complicated relationship between the two in recent years. They are currently considered distinct legal specialities. Constitutional law is the supreme law of a country and nothing comes above it. Administrative law comes below constitutional law. Administrative law often takes up the tasks that are delegated by the constitutional law of a country.[4] Constitutional law is broader in its approach than administrative law. Constitutional law deals with all branches of law, regulating institutions and organs of the state, while administrative law largely deals with administrative institutions and authorities.[5] As different as these two streams of law may be, they also tend to overlap on several occasions. They are often called “twin sisters”,[6] where both are similar to an extent but are distinct entities. The differences can be pointed out through the following key points: nature and source of law, subject matter, and judicial review.

NATURE AND SOURCES OF LAW

The primary goal of constitutional law is to interpret and implement the provisions of a constitution or constitutional text.[7] Its source is the Constitution. In the absence of a constitution, it derives its source from statutes, customs, and precedents. It focuses on the constitution’s guiding concepts, structure, and powers as laid down in the constitution or statutes. Administrative law, on the other hand, is concerned with legislation, rules, and common law principles that control administrative agencies and their operations. It establishes the framework within which these agencies function, ensuring that they act justly and stay within the authority laid down for them.

SUBJECT MATTER FOR CONSTITUTIONAL LAW AND ADMINISTRATIVE LAW

Constitutional law primarily addresses basic issues like the organization of the government, powers, and individual rights. It deals with problems such as the separation of powers between the organs of the government, federalism, i.e., division of powers between the Centre and the States, and the protection of civil rights. Administrative law, on the other hand, deals with the operations of administrative agencies, that are involved in activities like decision-making, rule-making, and the provision of administrative remedies. It guarantees that authorities in the state work within the powers laid out for them, follow fairness in observing procedures, and offer proper justification for their actions, for the welfare and justice of the public.

JUDICIAL REVIEW

The power of the court to assess the legality of legislation and executive action, known as judicial review, is included in constitutional law. Constitutional law establishes a mechanism for courts to declare legislation or executive activities unconstitutional in cases where they violate constitutional requirements. Administrative law, on the other hand, is concerned with the judiciary’s examination of administrative decisions. It enables those who have been harmed by administrative proceedings to dispute such decisions based on illegality, procedural unfairness, or unreasonableness in the court of law.

CONCLUSION

The relation between constitutional law and administrative law is such that they cannot be put in watertight compartments. Though fundamentally different in a few ways, they are bound to overlap at times. One is not entirely independent of the other; they are related but different. Administrative law and constitutional law are two independent disciplines of law that control various parts of government and its agencies. Administrative law controls the use of state powers by administrative bodies, whereas constitutional law sets the fundamental principles and organization of government. Understanding the dividing line between these two divisions is critical for upholding the rule of law and defending individuals’ rights.[8] Both constitutional law and administrative law contribute to the smooth functioning of democratic regimes by protecting constitutional norms and maintaining procedural fairness.

Author(s) Name: Kahuwa Sarma (Chanakya National Law University, Patna)

References:

[1] David Fellman, Matthew F. Shugart, Giovanni Bognetti, ‘Constitutional Law’, Encyclopedia Britannica (1 August 2022), <https://www.britannica.com/topic/constitutional-law/Characteristics-of-constitutions>, accessed 15 June 2023. 

[2] Edward C. Page, William Alexander Robson, ‘Administrative Law’, Encyclopedia Britannica (13 March 2023), <https://www.britannica.com/topic/administrative-law >, accessed 15 June 2023.

[3] Irfan Shahzad, “Differences between Constitutional & Administrative Law”, Academia, < https://www.academia.edu/36820658/Differences_between_Constitutional_and_Administrative_Law >, accessed 16 June 2023.

[4] “Constitutional Law and Administrative Law”, Strictly Legal, < https://strictlylegal.in/all-about-constitutional-law-and-administrative-law/ >, accessed 16 June 2023.

[5] Ibid.

[6] Ibid.

[7] Supra n 1 at 1.

[8] Supra n 3 at 1.