Scholars have often struggled to distinguish between constitutional law and administrative law. Many scholars name their books “Constitutional and Administrative Law” without distinguishing the two. The line separating administrative law from constitutional law is vague and unstable. It is due to the rapid changes that administrative structures of polities are often subjected to. The nature of administrative functions changes with time, technology, political strategy, geographical locations, and so on. Paul Craig believed that the nature and purpose of administrative law require us to investigate the way in which our society is ordered. Thus, the definition of administrative law may vary from society to society (and jurisdiction to jurisdiction). However, this should not discourage us from looking for a general definition of administrative law. To understand why administrative law is a separate branch of law, we must appreciate its peculiarities. We must understand why is this branch of law called administrative law and not something else. When we say that ‘X’ is a part of administrative law, we must be able to answer “why ‘X’ is a part of administrative law” and “why ‘X’ is not a part of any other form of public law.”

Wade and Forsyth rightly noted that the primary purpose of administrative law is to keep the powers of the government within their legal bounds so that the citizens remain protected against abuse of governmental powers. Richard Stewart notes that scholars, judges, and lawyers traditionally agree that the core purposes of administrative law are eliminating arbitrariness from administrative decision-making, securing rule of law, ensuring that agencies follow fair and impartial decisional procedures, act within the bounds of the statutory authority delegated by the legislature, and respect private rights. In this sense, administrative law mostly contains negative law to “prevent unlawful or arbitrary administrativeexercise of coercive power against private persons”, as Stewart suggests. However, he also rightly mentions that keeping up with the ever-shifting nature of administrative law, it now includes affirmative laws to “ensure that regulatory agencies exercise their policymaking discretion in a manner that is reasoned and responsive to the wide range of social and economic interests affected by their decisions, including both the beneficiaries of regulatory programs and those subject to regulatory controls and sanctions.”

Stewart defined administrative law as the law that:

• defines the structural position of administrative agencies within the governmental system;
• specifies the decisional procedures those agencies must follow; and
• determines the availability and scope of review of their actions by the independent judiciary.

Stewart’s definition places administrative agencies at the center of administrative law instead of administrative functions. However, due to the overlap of separation of powers in almost all liberal democracies, administrative functions are not always performed exclusively by administrative agencies. For instance, judicial bodies may also perform administrative functions. While doing so, they do not become administrative agencies. However, judicial bodies would be bound by principles of administrative law while performing administrative duties. Election commissions of certain jurisdictions also perform administrative functions and are bound to follow administrative law. For instance, the Supreme Court of Bangladesh in Bobby Hajjaj v Bangladesh Election Commission andors, declared the non-registration of a political party by the Election Commission ultra vires based on the principle of wednesbury unreasonableness (a principle of administrative law). However, an election commission is not a purely administrative agency. The definition of administrative agencies is also an ever-shifting maze. Thus, a definition based on administrative functions, rather than administrative agencies may be more stable throughout the changing tides of time.

A great deal of importance is placed on accountability in administrative law. We have administrative law to eliminate arbitrariness from administrative decision-making. However, while defining administrative law, some scholars, put too much emphasis on judicial review of administrative action. This fondness for judicial review fails to see the true scope of administrative law as administrative actions can be kept within checks and balances through measures other than judicial review. It would not be convincing to say that the set of laws applied by the judiciary while entertaining judicial review of administrative actions, as the scope of the application of administrative law is not limited to courts.

A former Judge of the Supreme Court of India,  tried defining administrative law as:

[B]ranch of Constitutional Law which deals with powers and duties of administrative authorities, the procedure followed by them in exercising the powers and discharging the duties and the remedies available to an aggrieved person when his rights are affected by an action of such authorities.

There is an apparent flaw in the above-mentioned definition of administrative law. He defined administrative law as a branch of constitutional law. However, administrative law is not a branch of constitutional law. There may be certain overlaps between the principles of constitutional and administrative law, but not all administrative laws enjoy the status of being constitutional.

The questions that administrative law asks are different from the questions asked in the study of constitutional law. As discussed earlier, it is often hard to distinguish them. Nevertheless, the existence of a distinction is without a doubt. According to John Gardner, the distinction between the questions of constitutional law and the questions of administrative law lies in the type of institutions that these respective parts of the law regulate. Gardner argued that administrative law regulates institutions whose powers are delegated, while constitutional law regulates those that do the delegating (i.e., institutions whose powers are not delegated but are, as it is sometimes put, inherent or original). According to Gardner, laws of institutions whose powers derive directly from the Constitution are constitutional law, and administrative laws are other public laws that deal with institutions whose powers were delegated by other organs. Gardner’s distinction between constitutional and administrative law was made against a backdrop of the United Kingdom’s legal system, which has an unwritten constitution. The same will not always apply to jurisdictions with a written constitution. For instance, administrative tribunals are subjects of administrative law. However, a written constitution may have provisions for constituting administrative tribunals. In that case, it will remain a subject of administrative law even though it is a constitutional body. Even though sometimes there may be exceptions to Gardner’s standard distinction, it helps us make sense of the vague field of administrative law.

A more acceptable definition of administrative law may be that administrative law is the set of laws that govern administrative actions rather than the laws applied by administrative agencies. Using administrative actions as the foundation of the definition of administrative law would cover all administrative functions instead of covering only the government’s actions. For example, whether the parliament can delegate its power to make penal laws to the government is a question of administrative law. How much power can be delegated by an authority can be a matter of administrative law, but the content of the delegated legislation made by ministries will generally not be matters of administrative law. Imagine that in the country ‘X’, the parliament, through the Labour Act 2019, empowered its government to make rules regarding any matters that fall within the ambit of the Labour Act 2019. Exercising power given to it by the Labour Act 2019, the government made Labour Rules 2020. Now, most provisions of the Labour Rules 2020 will not fall within the scope of administrative law. However, if someone challenges the Labour Rules 2020 by claiming that the government went beyond the ambit of the Labour Act 2019, such a challenge will be a subject of administrative law.

The author is a lecturer at the Department of Law, North South University.