December 2, 2020

TRIPARTITE DIMENSION OF CONSTITUTIONAL AND ADMINISTRATIVE LAW

ABSTRACT

This paper will be going to focusing on the complex equation with regards to their relationship prevailing between the Constitutional and Administrative Law. As such their foundational dynamics is very much associated with each other and on the other round we cannot disregard the fact that they are separate branches of the same law, that is, Public Law. Constitutional at one place provide us with the definite rules and regulation, principles and remedies and at the same time means on the another hand the Administrative Law performing the job of the implementation of these postulate. It basically sets in motion the legal parts of the law.They share a triangular correlation in which justice is the ultimate end of the concerning laws and the path which they adopt to extract from various circumstances may differ and the in whole the manner makes all the difference between them and here is a connecting thread which connects them as their complementary relationship support to run the society in a smooth flow in pursuant with the legal framework. Their relation is of various dimensions and each layer of the same has distinctive approach to understand the aspects of these concerning laws.

KEYWORD: Foundational dynamics, Public Law, Connecting thread, Complementary relationship

Tripartite Dimension Of Constitutional and Administrative Law

While dealing with the two main branches of the Public law, that is, Constitutional and administrative law, we come to the conclusion that they share a very different as well as very complex relation with each other. They govern the equation shared by the government and the individual. They both have certain point of differences and similarities with each other. Apart from the exception of the English experience, having written constitution, in which idea regarding the differences is very much blurred. Otherwise there is no barrier in the path where we easily point out the distinction between them. But the views of the administrative lawyers put light on the companionship between both of the laws. They believe that administrative law and cannot be fully understood without the foundational base of the Constitutional law.

Administrative law is like totally function upon the principles and rules of the Constitutional.

Justice Gummov has also stated that “The subject of administrative law cannot be understood or taught without attention to its constitutional foundation”.[1]

The above words of Justice Gummov are very much true in the sense that it shares certain complementary relation with each other. Different jurist provided various arguments but all those arguments are basically indicating towards the same direction. Under this umbrella there is another name coming, that is, Kietch, who had said that it is almost illogical to differentiate administrative aspect from constitutional frame and all endeavors towards this would lead to zero result.[2]

As when we look upon the differences which is very much clear cut in the countries which have written constitution and the main area of distinction is the extent of their scope. As we know the constitutional law focuses on the power and structure of the government and on the other hand administrative law restricted up to the extent of the power vested in the pocket of the executives. If we talk about the legislative and the judiciary, than it is only considered when they have such controlling function on administrative power.

Administrative law is that equipment or we can consider it as a weapon through which we can execute the words of the constitution. Constitutional portion put down some theory like the rule of law and the separation of law and administrative law nurtures it and put some life on it. The dependency of both these law on each other is very much visual, that is, the Articles 8(3), 12(1), and 12(2), respectively enlighten the postulate of engagement of the masses, liquidity and answerability in the area of authorities management activity.

Judicial review which provides an instrument for a check on the principles of the rule of law. Most of the countries exercise the function of the review to observe the admissibility of the executive as well as administrative agents arising from the constitution. There is a debate on this particular issue of the judicial review area of scope. And the debate is still on the tip of the mountain and just getting influenced by the changing dynamics of the Government. There is a requirement of the state equilibrium which balance the executive actions overall otherwise it would hamper the basic principles of the constitution, that is, separation of powers.

Both the constitutional and administrative law focuses on the end result of the all the action and principles, that is, extracting justice for all the citizens. Rights of the individual are the prime concern of the administrative agencies. Some where the constitutional law focuses on the administrative fairness. Principle of the administrative fair play is being provided in bills of rights or and constitutional paper. We can consider the example of Australia and South Africa.

Wade stated that the administrative law is an offshoot of constitutional law and the fastening thread is the pursuit for administrative justness.[3]


Constitutional Law: Perspective from Administrative Eyes

With regard to the country like England where the Constitution is unwritten, the effect of the same upon the administrative law is very much less. Upon this Dicey had said that the set of rules that in other countries form somewhat of a Constitutional Decalogue are the conclusion of the England’s ordinary law. But the situation is much contrary from those countries which possessed written constitution with them as they contain source of control over the administrative agencies. The written constitution put some sort of limitations on the administrative agents. Most of the authors mention that territory having written constitution with the some additional feature of the judicial review, possibility become nil to associate them separately. As the court have all such under this umbrella to just invalidate the actions and rules made by the authorities whose performance are not match with the provisions of the Supreme law. Power in the hands of the Judiciary has been vested to just keep a check on the actions of the executive and legislatives. The concept of this doctrine just varies from boundary to boundary of every State. It is basically a tool for the interrogation of the moves of the administrative agencies.

Constitutional provision provides some sort of protection to the actions of the executive or the administration. Statutory instruments are brought within the ambit of the Article 13[4] of the Constitution through defining law within which it include the order, rule, bye- law, regulation, notification or anything having the force of law. Limitation put on by the constitution through the fundamental rights on the State action would be not contravened by any legislative, non-legislative as well as administrative bodies. The court vested with such powers which empowered the court to strike down any policy set up by the Non- administrative agencies. Any provision which is of discriminating in nature than it will also be declared as void. The eminent example would be of the act infringing article 19, 21, or 300-A. some other Article would be like 265, 301, 311 and 314.

The concept of the judicial review gets supplemented in the country like India or U.S.A. The legal environment of such countries would be pursuant with the principle of the rule of law as well as with the constitution. It can be noted down that the validity of the constitutionality of any rules should comprehend with the constitutional law and the same goes to the administrative law. In above case or condition the Constitution’s provision will applicable on both the law fields.

The main area of work of the written constitution is to just engulf those principles and standard in the constitutional context and the court responsibility becomes higher when there is a need of protection of the individual from the Government or other administrative agents. A regular check is required to enhance the functioning of the Government and its other organs. The arbitrary exercise of the power would certainly hamper the effectiveness of the organs formed to prevent the people rights and dignity. Administrative agencies established with the purpose to keep enact the purity of the rights which is being provided by the Constitution.[5]

Development of Administrative Law in Constitutional zone

Administrative law is the side upshot of the Governmental authority. The structure as well as functioning of the Government has been changed if we compare it with the earlier role of the government. Now, when the Government has been changing with the changing dynamics of the political condition of the State it is quite obvious that the purpose of the authorities vested with power would look over the well-being of the citizens in different perspective so the concept of the Welfare State had came. So that welfare of the state would be achieved and services being provide to the public at large. The modern concept of the State duty is totally focused on the welfare of the each individual from the time of its birth till his/her life time. There is an urgent need for developed and well-equipped administrative strata which would be responsible for the smooth process and functioning of the administrative functionaries.[6]

With the changing circumstances, the aspiration of the people increases, and to match with such demand, the Government should apart from stating their rights should also work on the certain grievances people have and make sure they get a solid solution or relief from that part. Our constitution has being vested with certain rights, that is, Fundamentally accepted rights (part III of the Constitution) but the system to implement these principles/ rights required by the administrative officials and the wholly responsible to manage these things. These all environment includes in them the co-operation between the Constitutional and administrative principles. Constitution considered as the ultimate source of these basic or fundamental rights which represent the interest of the individual of a State and the administrative agencies on the other hand implement these rights to not let create discrimination among the people. To maintain the integrity and purity of these principles, it is necessary to have such co-ordination. The Article in the Constitution which talks about the ‘Equality’ would not be useful if the functionaries of the constitution arbitrarily and act in contravention of the Constitution or ignore the needs of the weaker section, forms the major section, of the society. Philosophies embodied in the Supreme law should need a wee established administrative law and system.

Administrative law has been explained in the clear language as the law dealing with administration. In the other hand if we go deeper than it mainly dealt with the business of the administrative agencies which include certain executive functions etc. Further it focuses on the organization, function, powers and duties of these agencies. The definition is very much wide as such the legal portion explains the authority of administrative performers deal with the significant part of such powers. It handles areas of public health, housing, town and country forethought, etc not being added in the boundary of their authority. It gravitate to confront with these area of concern as the Constitution has encapsulate the idea of a welfare State, and the same can administer the rules in certain area by the regulatory procedure. Professor Sathe stated: “Administrative law is a part of constitutional law and all concerns of administrative law are also concerns of constitutional law.” This statement of the Prof. Sathe clearly identified the relation prevail between them. Many others eminent writers and jurists emphasize on this aspect. It something very much complex to evaluate the exact or accurate conditions exists. But in spite of phenomena they have certain common element with them.[7]

It therefore said that constitutional field has a vast horizon of jurisdiction where field of administration holding a significant part. Former one declared as the genus of whose a material segment of later is the species.


Resolution of horizon: Administration

The law of charter of the India is considered as the grand norm as per the other legislations having within the domestic boundary. The law of the land has been vested certain power with reasonable limitation to the different organs of the Government so that they extract justice for the common citizens of the people and any lack of services would arose between them than the ultimate impact would be upon the authorities of the Government. For instance the Government has divided the between the States and Centre. The position of the responsibility as well as duties also being decided and set appropriately so that the functioning goes smoothly and make sure that environment of overlapping would never arise between them. The interpretation of the court has been taken as the prime consideration, as such; it played a very vital role in providing a route and shape to the laws being framed by legislature. If any provision is not compatible with the principles of the Constitution than it would automatically put that action into the bracket of question and at last it would declare unconstitutional, if not being proved valid or reasonable. Constitutional law is basically being called as the ‘Mediator’ as it draw a defined a line so that the executive can exercise their duties within their sphere of work. Here the delegation of powers has an important factor with this regard. Constitution acts as the path guider who also puts light on the framework under which the officials placed. Critically the position of the constitution is of immense importance as such it influence the scope of the administrative functional flow. This way the establishment of a unique relation came into the scenario.[8]

Now if we dealt up to the extent of how much they both indulge in themselves then after that extent, they must share some variations upon that line we can differentiate between these two branches of law. They share a complex relation in which these laws are so associated that it takes efforts to dig out the dissimilarities between them. As the Holland as mentioned that:

“Constitutional law describes the various organs of the government at rest, while administrative law describes them in motion.”

Hence the above statement clearly defining the line of the position held by these concerned laws.

But there is no any statement which wouldn’t have contradictory statement and with this regard the thought of the Maitland comes across to present his views. This opposes the above mentioned statement. His views are like based on the concept that if we relied upon this than it automatically we placing the administrative law at that position were the powers or the exclusive rights would be downgraded to the administrative law.

With this regard Ivor Jennings, eminent jurist advocated that administrative law talks about the various roles, operation, authoritative powers and commitment of the administrative officials and on the other hand constitution talks about the principles which focus upon the fabric and powers of several unit of the state entities with respective coordination with citizens of the society. Countries having the written constitution does not lead to such confusion regarding the differences between them and the origin of the constitution is mostly the constitution itself but the same cannot be said for the administrative law as such the statutory means, statutes, judgments, usages, customs etc are the origin of this law.

“Professor Robson mentioned his thought, as the individual right is the focus of the Supreme Law and Collective need is what the Administrative law deals with.”[9]

These are some of the instances which reflect the prime differences between these two laws and their certain specific variations in their path. Apart areas are much defined so that it does not create such chaos between different organs and agents of the administrative and constitutional respectively.

“Watershed

Watershed is that word which exactly defined the term overlapping area of these laws which state indulged within it, the mechanisms that are included in the Constitution al law for the prime purpose of the check over the authorities of the administration and with respect certain articles are enshrined that is Article 32, 226, 136, 227, 300and 311. Although some administrative agencies are also being placed, which are specifically provided through the parts of the constitution. For example Finance Commission, Election Commission, public service Commission, Inter-State Council etc.

Now can undertake some cases which support our contentions such as Tahir Husain versus Dt. Board(AIR 1954 SC 630); Rashid Ahmed versus Municipal Board (AIR 1950 S.C.R 566); State of Rajasthan versus Nathmal (AIR 1954 S.C.R 982); Dwarka Prasad versus State of U.P. (AIR 1954 S.C.R 803); Zafar versus Asst. Custodian (AIR 1967SC 106)

Now, one of the important aspects that are to be discussed is the natural justice which is one of the important principles which considered as the base of any justice to be delivered. Article of the Constitution having the characteristics equality and same regarding dignified life upon which this principle relied.

The Constitution includes the postulate of the Natural Justice which is being used. Golden touch of this postulate stays within the organs of constitution of India. Now the most important part, that is, Preamble indulges the expression, ‘Justice, Civil, Economic and Political’ independence of ideas, thoughts, credence, etc. Opportunity should be provided on the footing of the equality upon which the natural justice relies mostly. It should promote fairness among different class of the people and at the same time make them free from the authoritative action of the officials.

Article 14 deals with main principles, that emphasis that, the state would go to provide the citizen similar rights as well as protection. Article 21 focuses on the ‘Right to life and liberty’ constituting bundles of rights, which protect the individual various kind of interest. Dignified life is being provided by the Article 21. Article 22 ensures natural justice as well as fair hearing for the person who is arrested. The Directive principles of state Policy also take into the consideration with regards to the Article 39-A which talks concern about caring of social, economic, and politically backward portion of people and to accomplish this prime objective i.e. this portion make certain that free legal aid to pauperized or challenged people, and Article 311 provides protection to civil officials. Further Article 32, 136, and 226 provides constitutional relief in the cases of infringement of the basic or fundamental rights.

After considering the whole equation of the these two laws combined as well as separately, we came across into the conclusion that these two law have certain triangular relationship which are connected with a thread connection and dependence upon which the whole functioning of the State depends. Apart from these stuffs, something interesting thing arose that is the Administrative law and Commonwealth Constitution Law. This is available as the course which considered as the ninth compulsory subject in the “Juris Doctor online”[10]. In the above mixture the students able to associate their knowledge through different programs, showing their skills and their behavior can be noted down when they interact and come to the issue in such a that will contemplate professional implementation of the ethics and values. The interpretation of both the laws will be inculcated in the minds of the students. These combinations will talks about the part play by the stratagem, party politics and circumspection. The above mentioned thing is all about the administrative strata of the Commonwealth Constitution. In this part the implications of different elements of the governance would be covered under this bracket.

[1] Aberham Yohannes and Desta G/Michel, Constitutional Law and Administartive Law, Liku Worku Law Office (May. 02, 2012, 13:05 PM), http://www.abyssinialaw.com/component/k2/item/294
[2] Ibid.
[3] Aberham Yohannes and Desta G/Michel, Constitutional Law and Administartive Law, LIKU WORKU LAW OFFICE (May. 02, 2012, 13:05 PM), http://www.abyssinialaw.com/component/k2/item/294
[4] INDIAN CONST. art. 13, Cl. 3.
[5] LawTeacher. November 2013. Relationship Between Constitutional Law And Administrative Law. [online]. Available from: https://www.lawteacher.net/free-law-essays/administrative-law/relationship-between-constitutional-law-and-administrative-law-administrative-law-essay.php?vref=1 [Accessed 24 February 2019].
[6] Ibid
[7] https://www.universiteitleiden.nl/en/law/institute-of-public-law/constitutional-and-administrative-law
[8] I.P. MASSEY, ADMINISTRATIVE LAW (9th ed. 2017).
[9] Aberham Yohannes and Desta G/Michel, Constitutional Law and Administartive Law, LIKU WORKU LAW OFFICE (May. 02, 2012, 13:05 PM), http://www.abyssinialaw.com/component/k2/item/294
[10] The Juris Doctor (JD) degree program emphasizes on the knowledge and prowess necessary for once to become a potent candidate of the legal profession.

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Author Details: Aditi Yaduvanshi (5th year student at BANASTHALI UNIVERSITY, JAIPUR, RAJASTHAN)

The views of the author are personal only.

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