Basic of Administrative law

Difference between Constitution Law and Administrative law

According to the early English writers on administrative law there is

no difference between administration law and constitutional law.
In present days Administrative law deals with the organization,
function, powers, and duties of administrative authorities while
constitutional law deals with the general principles relating to the
organization and powers of the various organ of the state and
their mutual relationship and these organ with the individual.
 In others words Constitutional law deals with fundamentals
with administrative law deals with the details.
 Constitutional law deals with rights and administrative law
lays emphasis on public needs.

Source of Administrative law are:

There are four principle source of administration law in India:
1. Constitution of India- The constitution of India itself source of
creation of several administrative bodies and agencies. Like Article 32
& 226 extends protection against infringement of any fundamental
rights by an administration action both for SC and HC.
2.Acts and statues- Different acts and statue passed form time to
time, constitute source of administrative law. Several administrative
bodies are created under such acts .
3.. Ordinance, administrative directions, notifications and circulars-
Ordinance are issued by president and governor under article 123 &
213.
4.Judicial Decisions-The importance of judge made as a source of
administrative law has been recognized by Prof. K.C. Davis also
who believes the bulk of American Administrative law is judge
made law.
 LEGAL HELP
By- Keshav
DESK Choudhary
 Power corrupts and absolute power corrupt absolutely,
 Montesquieu said that if the executive and the Legislature are
the same person or body of persons, there should ne danger of
the Legislature enacting bad laws and enforce it.
 According to Wade and Philips say that the doctrine means
1The same set of persons should not compose more than
one department of the three department.
2One department should not exercise the function of the other
two departments
3. One department should not control or interfare with the work
of other two departments.
 LEGAL HELP
By- Keshav
DESK Choudhary
Separation of powers
The doctrine of separation is of ancient origin. The separation
of powers is based on the principle of trias politica, which
means separation between three independent powers in
nation i.e.
Legislature, Administration and Judiciary. The history of
the doctrine of separation of power is tracable to
Aristotle. John
Bodin and British politician Locke respectively expounded
the doctrine of separation of power in 16th ans 17th century.
The legislature makes laws, the executive enforces them
and the judiciary applies them to the specific cases arising
 LEGAL HELP
By- Keshav
DESK Choudhary

The division of governmental powers into legislative, executive and

judicial is not an exact classification. It is abstract and general and it
is not true only theory, but it is also impossible in actual practice to
make complete separation.

After the end of the war of independence in America by 1787 the

founding fathers of the American constitution drafted the
constitution of America and in that itself they inserted the Doctrine
of separation of power and by this America became the first nation
to implement the Doctrine of separation of power throughout the
world.
 LEGAL HELP
By- Keshav
DESK Choudhary

 “Separation of Powers” is embedded in the Indian Constitutional

set up as one of its basic features.
 Under the Indian constitution there is an express provision under
article 50 of the constitution which clearly states that the state
should take necessary steps to separate judiciary from the
executive i.e. independence of judiciary should be maintained.
 The doctrine of separation of powers as propounded by
Montesquieu had tremendous impact on the development of
administrative law and functioning of Governments.
 LEGAL HELP
By- Keshav
DESK Choudhary

 It was appreciated by English and American jurists and

accepted by politicians. In his book ‘Commentaries on the
Laws of England’, published in 1765, Blackstone observed that
if legislative, executive and judicial functions were given to
one man, there was an end of personal liberty.
 The Constituent Assembly of France declared in 1789 that
there would be nothing like a Constitution in the country
where the doctrine of separation of powers was not
accepted.
 The doctrine of separations of powers may be traced back to
an earlier theory known as the theory of mixed government
from which it has been evolved.
 LEGAL HELP
By- Keshav
DESK Choudhary
Montesquieu, a French jurist first time gave a systematic information on the
seperation of power. According to Monesquieu’s view the doctrine of separation of
powers (des pauvoirs) means that one person or body of persons should not
exercise all three types of powers of government, namely, executive, legislative and
judicial.
 The doctrine of separation of powers was inferred by Montesquieu from the British
Constitution.
Separation of power in Indian context
In India before Independence there was no any distinct separation of power. It is
recognized and enforced after the independence of India. It is impossible to
separation of power completely. Article 50 of the constitution deals with the
separation of power between legislative, executive and Judiciary. In the Constitution
of India President and Governor have legislative as well as executive power. Both of
them have also some judiciary power.
 LEGAL HELP
By- Keshav
DESK Choudhary

 Advantages of the doctrine of the separation of power:

There are various advantages with the acceptance of this doctrine in
the system;
1. The efficiency of the organs of state increased due to separation
of works hence time consumption decreases.
2. Since the experts will handle the matters of their parts so the degree
of purity and correctness increases.
3. There is the division of work and hence division of skill and labour
occurs.
4. Due to division of work there is no overlapping remains in the
system and hence nobody interfere with others working area.
 LEGAL HELP
By- Keshav
DESK Choudhary

• 5. Since the overlapping removed then there is no possibility of the competition in between different
organs.
 Separation of power in U.S.A context:
 The framers of constitution of USA believed that only by allocating the three basic functions of the
government; legislative, executive and judicial, in to three separate, coordinate branches could power be
appropriately dispersed. Thus the US Constitution allocates the three powers in separate branches. The first three
article of their constitution[4], known as the distributive articles, define the structure and powers of the congress
(legislative body), executive and the judiciary.
 LEGAL HELP
By- Keshav
DESK Choudhary

 The Supreme Court of US has not been given power to

decide political questions, so that the Court may not interfere
with the exercise of powers of the executive branch of the
government.
 The President of USA interferes with the exercise of the powers by
the congress through the exercise of Veto power. He also exercises
the law making with the use of his treaty making power. The
President also interferes with the functioning of the Supreme Court
through the exercise of his power to appoint judges.
 In brief we can say that the condition in US by the words of
CORWIN, separation of powers are more specifically seen in USA
but absolute separation of powers does not exists in USA.
Legal Help By- Keshav
Choudhary
Desk
 We can say that the Doctrine of Separation Powers; is followed
in US with a spirit, never followed in UK purely, and India has
followed it with large exceptions.