Answer:- As regards, the relationship between Administrative Law and Constitutional Law, there are two schools of thought.
(1) No difference-According to one school of thought, there is no difference between administrative law and constitutional law.
(2) Difference-According to the other school of thought, there is difference between administrative law and constitutional law.
Prof. Wade writes with the exercise of Governmental power, administrative law is itself a part of constitutional law. It have now become independent branch of study. But, it was denied recognition in United Kingdom and United States of America.
Prof. Dicey repudiated its existence in United Kingdom and his view continued to occupy the minds of thinking persons till the advent of the report of committee on ministers. He misunderstood “Droit Administrative”, which he identified with administrative law. According to him, since there was no dual system of Judiciary in Great Britain like France there is nothing like term ‘administrative law’ in England. Similarly, the existence of administrative law was defined in the United States because of the acceptance of doctrine of separation of powers under their Constitution.
The views of Austin, to whom constitutional law merely determined what persons or classes of persons bore the sovereign powers while administrative law determined the ends and modes to and in which sovereign powers were exercised, are not complete in full sense, because he dealt constitutional law in very narrow sense. While summarising the views of Holland in this regard, Maitland said, “I think we catch his idea if we say that while constitutional law deals with structure, administrative law deals with functions”.
Thus, according to the view of these writers, administrative law and constitutional law both deal with the same subject. As Griffith, J.A. writes, that the truth is, all these writes (with possible exception of Austin) would themselves point out, that any definition of constitutional or administrative law and any distinction drawn between them are arbitrary and based on the convenience of the particular writer.
Consequently, administrative law has been dealt within the books of constitutional law till recently. It is true that we find much similarity in the subject-matter of two laws, but scope of administrative law has been increased in modern times, resulting in its separation from the constitutional law.
It was Goodnew who first took up administrative law as a separate subject. He wrote a book on Comparative Administrative Law in 1892. In India administrative law has not grown up fully. It is in its infancy. Before 1947, our country was a police state. With the advent of independence a conscious effort started towards the achievement of a welfare state.
The philosophy of welfare state has been expressly engrained in our Constitution. There are several principles which are derived from the constitutional law and they constitute the fundamental basis of administrative law. In fact, among the various sources of administrative law Constitution stands foremost besides the statutes, statutory instruments and precedent.
This development of Administrative Law is not a recent one. It finds its root even in ancient times. This can be traced in the era of Mauryas and Guptas who have well-structured administrative laws. The notion of Dharma was at its peak and gave importance to principles of natural justice, fairness etc. And this was considered to have a broader ambit as compared to rule of law or due process of law. Every king or monarch followed this without claiming any immunity.
Constitutional Law is the prime source of Administrative Law in India. It is considered as soul of Administrative Law. However, ordinance is also an important source. Under Article 213 and 123, President and Governor has power to promulgate ordinance in emergency situations, but there lies a need to get approval for the same.
In Bank Nationalization Case AIR 564, 1970 SCR (3) 530, Supreme Court held that “if the ordinance is constructed on collateral grounds then it can be challenged before the Apex Court”. Further in S.R. Bommai v. Union of India AIR 1994 SC 1918, the court clarified that “proclamation of emergency under Article 356 on ground of failure of constitutional machinery is subjected to judicial review”.
The Constitutional Law is the supreme law of the land whereas Administrative Law is subordinate to it. Hence, former is genus and latter is its specie. Constitutional law reflects provisions with respect to all laws and their relations with state and citizen, however, the latter deals with working of state and its various functions to be performed. Therefore, there lies a need for separate discipline to control and prevent the arbitrary action of administrative authorities and give protection to the rights of an individual and thereby public as a whole.
The court in State of Bombay v. Bombay Education Society, (1955) 1 SCR 568 held that Executive action established in India is protected through various ways. Considering example of subordinate legislation which is considered within the meaning of Article 13 which includes bye-laws regulations etc. but if it is ultra vires of Constitution then it can be struck down as held in Chandrakant Krishnarao Pradhan v. Jasjit Singh, AIR 1962 SC 204. The court in Rashid Ahmed v. Municipal Board, Kairana, 1950 SCR 566 held that any administrative action with no statutory basis can be held void and therefore, court has power to declare it void if any administrative policy or action violates Constitution.
Our Constitution itself envisages a few administrative bodies mainly from the point of view of inter-State co-operation and co-ordination and to solve inter State problems. Examples are the inter-State Council, the Finance Commission, Union Public Service Commission and the Election Commission. Besides this, we have several provisions in the Constitution, which relate to control on the administrative powers.
As regards the relationship between the two branches of law there is no deviation from the modern tendency of thought that administrative law is an independent branch of the subject, although, the knowledge of Indian constitutional law is indispensable for understanding the correct position of administrative law in India.
The inevitable and speedier growth of powers of the administration under the garb of socialisation have resulted outstanding legal development of the twentieth century taking its force from constitutional law. Administrative law is very much related to constitutional law. It owes much to constitutional law, in spite of the fact that the former has developed as an independent branch of study. In many ways, constitutional law is the determining factor of administrative law.
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