Friday, December 21, 2012

what is the distinction between constitutional law and administrative law?

Constitutional law and administrative law both are concerned with functions of government, both are a part of public law in the modern state and the sources of the both are the same. Yet there is a distinction between the two. The administrative law is but an adjunct of the constitutional law. To the early English writers on administrative law there was no difference between administrative law and constitutional law. Therefore, Keith observed:
“It is logically impossible to distinguish administrative from constitutional law and all attempts to do so are artificial”.

Actually the distinction between the two is one of degree, convenience and custom rather than that of logic and principle. However, according to Holland, “Constitutional law describes the various organs of the government at rest, while administrative law describes them in motion”

Therefore, according to this view, the structure of the legislature and executive comes within the purview of the constitutional law but there functioning comes within the sphere of administrative law. But Maitland does not agree with this classification because in that case powers and prerogatives of the crown would be relegated to the arena of administrative law.

According to Jennings- administrative law deals with the organization, functions, powers and duties of administrative authorities while constitutional law deals with the general principles relating to the organization and powers of the various organs of the state and their mutual relationship of these organs with the individuals. In other words, constitutional law deals with fundamentals while administrative law deals with details.

It may also be pointed out that constitutional law deals with the rights and administrative law lays emphasis on public need. However, the dividing line between the constitutional law and administrative law is a matter of convenience because every student of administrative law has to study some constitutional law.

In countries which have written constitutions the difference between constitutional law and administrative law is not so blurred as in England. In such countries the source of constitutional law is the constitution while the source of administrative law may be statutes, statutory instruments, precedents and custom.

Whatever may be the argument and counter argument, the fact today that administrative law is recognized as a separate independent branch of legal discipline though at times the discipline of constitutional law and administrative law may overlap. The correct position seems to be that if one draws two circles of administrative law and a constitutional law, a certain place they may overlap and this area may be termed as ‘watershed’ in administrative law. This formulation does not differentiate between administrative law and constitutional law. It lays entire emphasis on the organization, power and duties to the exclusion of the manner of their exercise. A student of administrative law is not concerned with how a minister is appointed but only with how a minister discharges his functions in relation to an individual or a group. How the minister of housing and rehabilitation is appointed is not the concern of administrative law but when this minister approves a scheme of new township which involves the acquisition of houses and lands of persons living in that area questions of administrative law arise. Jennings’ formulation also leaves many aspects of administrative law untouched, especially the control mechanism.

Professor Robson observed that constitutional law deals with individual right and administrative law deals with public need.

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