By Pronnati Rajasvi
In the realm of Indian Constitutional law, the definition of “Law” is the gateway to justice. If an action by the state does not qualify as “Law,” it cannot be challenged for violating Fundamental Rights under Article 13. A common question that arises for law students and practitioners alike is: Do Administrative Orders fall under the ambit of Article 13(3)(a)?
To answer this, we must dissect the nature of administrative orders, the text of the Constitution, and landmark judicial interpretations.
1. Understanding the Administrative Order
An “order” is essentially a directive to do or abstain from doing an act, issued by an authority possessing power over the subject.
- Simple Analogy: A teacher instructing students to maintain silence is a directive based on professional authority.
- Legal Context: When authorities empowered by the State issue directives to citizens, these are Administrative Orders.
Examples of Administrative Orders:
- A notification by the Election Commission of India regarding polling dates.
- A directive by a Sub-Divisional Magistrate regarding public movement.
- Circulars issued by the Finance Commission.
In contrast, an order issued by a court of law after adjudicating a dispute is a Judicial Order.
2. Decoding Article 13(3)(a)
Article 13 is the guardian of Fundamental Rights. It declares that any law that contravenes the Fundamental Rights shall be void. But what constitutes “Law”?
Article 13(3)(a) defines “law” inclusively:
“’Law’ includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law.”
The “Force of Law” Test
The text of Article 13(3)(a) is not exhaustive. The key phrase is “having the force of law.”
- Yes, it is Law: If an administrative order is issued under a statute (Statutory Order) or carries the power to compel obedience and impose sanctions, it falls under Article 13(3)(a). If such an order violates a Fundamental Right, it can be struck down.
- No, it is not Law: Mere executive instructions or departmental guidelines that do not have statutory backing often do not qualify as “law” under this specific article, though they may still be challenged under administrative law principles (arbitrariness).
3. Administrative Order vs. Judicial Order: The Shankarlal Aggarwal Case
The distinction between an administrative order and a judicial order is often thin. The Supreme Court of India provided clarity in the landmark case of Shankarlal Aggarwal & Ors v. Shankarlal Poddar & Ors (1963).
In this case, the Court had to determine if an order passed regarding the realization of company assets was administrative or judicial.
The Supreme Court’s Observations
The Court noted that a precise definition is difficult, but established the following tests:
- Nature of Function: The mere fact that a power is wielded by a court does not automatically make it a “judicial” order. Courts can perform administrative functions (e.g., administering assets).
- The “Lis” (Dispute) Test: A judicial order usually involves a lis—a dispute between two parties where rights are adjudicated. However, the absence of a formal lis does not necessarily make an order administrative.
- Objective vs. Subjective Discretion:
- Judicial Decision: If discretion must be exercised based on objective standards and evidence.
- Administrative Decision: If discretion is based on subjective satisfaction or policy/expediency.
- Rights to Property: If an order decides the rights of parties to property or confers/refuses rights, it leans towards being a judicial order.
The Verdict in Context:
In Shankarlal, the Court held that since there were contending parties (the bidder vs. the creditors) and the decision affected rights to property, the order confirming the sale was a Judicial Order, not an administrative one.
4. What is Excluded from Article 13(3)(a)?
While Article 13(3)(a) is broad, it is not all-encompassing. It captures:
- Ordinances (Legislative power of the Executive).
- Subordinate Legislation (Rules, Regulations, Bye-laws by bodies like SEBI, RBI).
- Customs and Usages having the force of law.
The Personal Law Exception:
It is crucial to note that Personal Laws (such as uncodified Hindu Law or Muslim Law) generally do not fall under the ambit of Article 13(3)(a). The courts have held (notably in State of Bombay v. Narasu Appa Mali) that the framers of the Constitution intended “law in force” to refer to statutory laws and customs, not personal religious laws.
Conclusion
To summarize, an Administrative Order does fall under Article 13(3)(a) provided it has the “force of law.”
This inclusion is a vital safeguard in Indian Constitutional Law. It ensures that the executive branch cannot bypass Fundamental Rights simply by issuing “orders” instead of enacting “laws.” Whether an order is administrative or judicial depends on the nature of the power exercised and the impact on the rights of the parties, as established in Shankarlal Aggarwal.
References
- Shankarlal Aggarwal & Ors v. Shankarlal Poddar & Ors, 1963 (Supreme Court of India).
- State of Bombay v. Narasu Appa Mali, 1952.
- Sehgal DR, ‘Administrative Orders: A Brief Overview’ (iPleaders, 2021).
- Pal C et al., ‘Analysing the Ambit & Meaning of Article 13’ (Academike, 2021).