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Sources of Administrative Law - An Independent Branch of Law

Administrative Law is mainly concerned with powers. It is necessary to examine the sources of powers before considering in details how power is controlled. The customary divisions of the sources of legal power are "Common law" and "Statute", so it is with administrative authority. So far as the Central Government is concerned its common law powers falls under the Royal Prerogative which however has no relevance to the activities either of local Government authorities or modern statutory corporations. Which include both ministerial departments. Such as Housing and Local Government Education. Since the latter are exclusively the creation of parliament it follows their powers are derived solely from the same source.


Sources of Administrative Law

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In the realm of the Administrative law, the conflict between the parliament and courts would arise whenever the former seeks to abridge any of the fundamental rights of the citizens which are justiciable.


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Now the question arises as to what are the sources of Administrative law. The following are the chief sources of Administrative law:


1. Statutes


Statute law is, then, a well high exclusive source of Administrative power. The term covers both Act of parliament and delegated legislation. Act of parliament comprise public general Acts and private or local Acts.


Delegated of Parliament comprise public general Acts legislation, includes statutory rules and orders. Acts of parliament fall into two categories which may be conventionally termed constituent Acts and enabling Act, but some Acts deal with both constitution and power. In short, we can say statues are one of the important sources of Administrative law.


2. Constitution


The constitution of India deals with formulation of the executive, the powers of the executive during peace and emergency times.


Administrative law is concerned solely with the Administrative acts or either the administrator or of quasi judicial bodies. Now the methods by which such acts are interfered with are by the use of the prerogative or common law writs, especially by the writs of certiorari, mandamus and prohibitions. These writs are issued only by the High Courts in England and by the Supreme Court and High Courts in India under Articles 32 and 226 of the constitution of India.


This jurisdiction excludes ordinary courts. Very civil or criminal proceedings in the land. Because those proceedings carry with them the safeguards provided by statute of the appeal, revision and review. Hence, it is clear that these writs are not available against the judicial proceedings of the courts.


The constitution of India also provides under Article 299 and 300, the contractual and tortious liability of the government servants.


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"Administrative law is a part of constitutional law. It has become an independent branch of study only recently."

Sometimes, a question is asked as to whether there is any distinction between constitutional law and Administrative law. Till recently, the subject of Administrative law was dealt with and discussed in the books of constitutional law and no separate or independent treatment was given to it. In many definitions of Administrative law, it was included in constitutional law, though in essence constitutional law does not differ from Administrative law as much as both are concerned with the functions of the government, both are concerned with the functions of the government, both are part of public law in the modern state and the sources of both are the same. Yet there is a distinction between the two.


According to Hood Phillips,


"Constitutional law is concerned with the organisation and function of government at rest while administrative law is concerned with that organisation and those functions in motion."

According to Maitland,


"While constitutional law deals with structure and the broader rules which regulate the functions, the details of the functions are left to administrative law."

According to Prof. Wade,


"With the exercise of governmental power. Administrative law is itself a part of constitutional law."

Administrative law has now become independent branch of study. But it was denied recognition in USA and United Kingdom. Prof. Dicey repudiated its existence in UK and his view continued to occupy the minds of thinking persons till the advent of the report of the committee of ministers. He misunderstood "Droit Administration" which he indent field 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, while summarizing 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 function".


Thus according to the view of these writers, Administrative law and constitutional law both deal with the same subject. As Griffith writes that the truth is all these writers (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 was within the books of constitutional law, till recently. Although there is much similarity In the subject-matter of the two laws as the definition of Administrative law by Ivor Jennings clearly indicates yet the tremendous growth in the scope of Administrative law has separated from constitutional law. It was Frank J. Goodnow who first took up Administrative law as a separate subject. He wrote a book titled "Comparative Administrative Law" (published in 1893).


In India, Administrative law has not grown up fully. It is in infant stage. As regards the relationship between the two branches of law there is no deviation from the modern tendency of though that Administrative law is an independent branch of the subject although the knowledge of the Indian constitutional law is indispensable for understanding the correct position of Administrative law in India.


Indian constitution itself envisages a few Administrative bodies mainly from the point of view of inter-state corporation and co-ordination and to solve inter-state problems. Examples are Inter-state council, the Finance Commission, Union Public Service Commission and the Election Commission. Besides this, we have several provisions in constitution, related to the control of the Administrative powers.


In simple words, Administrative law is very much related to constitutional law. Administrative law owes much to constitutional law, inspite 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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