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Table of Cases

Additional District Magistrate, Jabalpur Vs. Shivakant Shukla AIR1976SC1207


Board of Education v Rice (1911)AC 179
Liversidge v Anderson 1942 AC 206 :(1941) 3 All ER 338
Local Government Board v Arlidge (1915) AC 120
Ms. Ranjana Agnihotri and Others v Union of India Through Secy. Ministry of Home
Affairs & Others 2013(11)ADJ22
Padfeild v Minister of Agriculture 1968 AC 997
Re: Mehar Singh Saini, Chairman, HPSC and Ors (2011)1SCC(LS)423

The French System: Droit Administratif


French Administrative Law is known as Droit Administratif. It is a scheme of Administrative
Law foreign to English Common Law. English legal phraseology supplies no proper and
equivalent for the expression Droit Administratif. 1
The existence in France of a body of administrative law (le droit administratif) separate and
distinct from the civil law, dealing, in the main, with the competence of the administrative
authorities and regulating their relations with one another and with private individuals,
together with separate and distinct body of tribunals charged with deciding controversies
between the administration and private persons and resolving conflicts of competence
between administrative and civil courts distinguishes fundamentally legal system of France .2
In this system the judicial power is kept separate from administrative power. A person
seeking any redress against the administration has to go to an administrative court and not to
an ordinary court. Thus the system of droit administrative in France has resulted in noninterference by the Courts in the working of administrative authorities.3

(i)

Definition

Droit Administratif has been defined by the French authorities in general terms asthe body of rules which regulate the relations of the administration of the administrative 4
authorities towards private citizens.
Aucoc describes that Administrative Law determines:
(1) the constitution and the relations of those organs of society which are charged with
the care of those social interests, which are the object of public administration by
which term is meant, the different representatives of society among which the state is
the most important, and
(2) the relations of the administrative authorities towards the citizens of the state.
For Englishman (As per Dicey, in his Law and Constitution (1915)) it is that portion of
French Law which determines

the position and liabilities of all state officials;


the civil rights and liabilities of private individuals in their dealings with officials as
representatives of the State: and

the procedure by which these rights and 1iabilities are enforced.

Droit Administratif thus be taken to mean a body of rules-

Prof. Narender Kumar, nature and concepts of administrative law, e.- 1st [2011],
James W. Garner French Administrative Law The Yale Law Journal , Vol 33, No 6 , April 1924
3
http://www.lawyersclubindia.com/articles/Administrative-law-in-India-In-need-of-reformation
4
Administrative authorities are those which have the right manage or perform executive duties of the
government, institution or business.
2

which determine the organisation, powers and duties of public administration; and regulate
the relation of the administration with the citizens of the country.5
Droit Administraif is in itself the product of the doctrine of separation of powers. This
doctrine has meant in France that there should be separation between the courts and the
administrative bodies. In this aspect, the separation theory has had a greater imprint in France
than in USA. The separation doctrine in France has resulted in non interference by the courts
in the working of administrative authorities. The most original aspect of French
administrative law therefore is the independence of the administration from judicial control.
The ordinary courts exercise no control over the administrative functioning. In France, a
person has no avenue for redress of grievances against the administration through the court.6
Thus it does not represent the principles and rules laid down by the French Parliament but
contains rules developed by judges of the administrative courts7.8
There are two types of laws and two sets of courts independent of each other. 9All claims and
disputes in which these authorities or officials are parties fall outside the scope of the
jurisdiction of ordinary courts and they must be dealt with and decided by the special
tribunals.

Mirroring the institutional separation between the judiciary and the Council of State (Conseil
dEtat), the study and doctrinal elaboration of administrative law in France is marked by
a self-conscious divide between public and private law. In public law thinking,
state administration is granted extraordinary privileges but is also subject to extensive duties
designed to safeguard the rights and interests of citizens. Linked to this understanding of the
special concerns of public law is the sweeping scope of the field. In contrast with common
law systems like the United States, in the French tradition, state liability and government
contracts are integral to the discipline. The theoretical apparatus of government privileges
and duties at the core of administrative law extends to all forms of administrative action and
all attempts to obtain individual redress from government wrongs.10
5

Supra note 1
Shakil Ahmed Khan and Publishers editorial board ,Principles of administrative law (commentary), seventh
edition 2011, Lexis Nexis Butterworths
7
Administrative tribunal is an administrative agency before which a matter may be heard or tried as
distinguished from a purely executive agency ;an administrative agency exercising a judicial function.
8
http://www.lawnotes.in/Droit_Administratif
9
C.K Thakker Administrative law 1992, Eastern Book Company
10
Francesa Bignami Comparative Administrative law ,George Washington University Law School, Public
Law and Legal theory Paper No. 2012-115
6

(ii) Origin of the system


Administrative Law of France has grown up, or, at any rate taken its existing form, during the
19th Century. It is an outcome of more than a hundred years of revolutionary and
constitutional conflict. It owes its origin to the consular Constitution of the year VIII (1800)
created by Bonaparte after the coup d'etat of the 18th of Brumaire. Droit Administratif of
France rests and always has rested at the bottom of two leading ideas alien to the conceptions
of modern Englishmen

that, the Government and every servant of the Government possesses, as


representative of the Nation, a whole body of special rights, privileges or prerogatives
as against private citizens, and
that, the extent of these rights, privileges or prerogatives, is to be determined on
principles, different from the considerations which fix the legal rights and duties of
one citizen towards another, and
the necessity of maintaining the so-called separation of powers or in other words,
preventing the Government, the Legislature, and, the Courts, from encroaching upon
one another's province.

(iii) Distinguishing Characteristics of French Administrative Law


The main characteristics of the droit administratif areFirstly, the relation of the Government and its officials towards private citizens must be
regulated by a body of rules, which are in reality laws, but which may differ considerably
from the laws, which govern the relation of one private person to another.
This distinction between ordinary law and Administrative Law is one which since 1800, has
been fully recognised in France and forms an essential part of French Public Law.
Secondly, the ordinary judicial tribunals have no concern with matters at issue between a
private person and the State, i.e. with questions of Administrative Law, but such questions
must be determined by administrative Courts. Autonomy of the administration from judicial
control does not however mean that it is despotic or free from all control. Administration has
been able to develop its own tribunals to supervise it. Thus administrative tribunals supervise
administrative functioning.11The Common Law Courts have no concern with questions of
Administrative Law. To entrust judicial court with the decision of any administrative suit is
deemed by most Frenchmen as a violation of the doctrine of separation of powers.
Thirdly, any question of jurisdiction, was in theory reserved to the Head of the State but was
in effect given to the Conseil d Etat, the highest of administrative Courts. The Conseil had
the right to fix the limits of its own power, it could in effect, take out of the hands of a
judicial Court, a case of which the Court was already seized.
11

Shakil Ahmed Khan and Publishers editorial board ,Principles of administrative law (commentary), seventh
edition 2011, Lexis Nexis Butterworths

Fourthly, a servant of the State was protected from the supervision or control of the ordinary
law courts, in respect of any act, howsoever, illegal, done by him while acting in bona fide
obedience to, the orders of his superiors or in the mere discharge of his official duties.12
This system has sought to draw a balance between private rights and public benefit. On the
one hand it maintains and supports administrative powers on the other it has developed a
mechanism for protecting individual rights and civil liberties against possible attacks by
public authorities. This system provides better protection to individual rights against the
despotism of public administration than the common law system provides at present. It
permits of a much deeper and broader range of control over the administration than the courts
in Britain can exercise.
Procedure followed:
It is independent of the French Courts.
At first instance, if a person has a case, he will be referred to the Tribunal Des Conflicts.
The tribunal will decide whether the case should go to the ordinary courts or the
administrative tribunals. Should it be an administrative dispute, it will be adjudicated by
the administrative tribunals. Now, if he is unhappy with the decision arrived by the
administrative tribunal, he can appeal to the Conseil D'Etat. Should the complain concern
an abuse of power by the administrative also called as recours pour excess de pouvoir,
then, the Conseil acts as the court of first instance.
If upon trial the administrative body is found to have acted ultra vires, then the tribunal
may nullify their actions.
All decisions arrived by the administrative tribunals are subject to review by
the Conseil on points of law.
Administrative tribunals also supervise administrative functioning. With regards to this,
they have spelt out two limitations on administrative bodies which are:
i. They must not act against the law and ;
ii. They must pay damages should they cause any injury.
With regards to an action for damages, it can be granted to an individual who is injured due
to an administrative action regardless if the state is at fault or not.13

(iv) Historical Development


As already stated, the Administrate Law of France has been built up on the foundations laid
by Napoleon. It originated in ideas which favour the prerogatives of the Govemment, as the
proper defence, for the interests of the Nation.

12
13

The law of France recognized indefinite class of acts of State.


http://lawfullylawyered.blogspot.in/2013/01/characteristics-of-droit-administratif.html

During Orleans Monarchy (1830-1870) particularly during the reign of Louis Phillips,
Frances government was under the established law of the land. However, till 1870, droit
administratif retained its essential features. The public servants were punishable in one form
or another for the breach of their official discipline, were protected against proceedings
before the judicial courts for wrongs done to private citizens. They could not be called upon
before any court of law, without Conseils's assent, to answer their conduct.
The decisions of the Conseil, concerning cases of Administrative Law, for the first time,
received the obligatory force of judgments only under the law of 24th May, 1872. Earlier
these were nothing but advice given to the Head of the State.Since 1800, the Conseil decided
the question of jurisdiction. This authority of the Conseil was transferred to a separate
tribunal, constituted in 1872 known as Tribunal des Conflicts. It, thus, diminished the
jurisdiction of the Conseil. Henceforth, the Tribunal is to determine whether any particular
case falls within the jurisdiction of the judicial courts or the administrative courts.
The Conseil created a body of maxims through judicial precedents, in accordance with which
it decided administrative disputes. Reforms were introduced during the period 1818-1860,
and judicial functions of the Conseil got separated from its administrative functions. Litigious
business, in practice, assigned to a special Committee. Decisions were reported, which were
moulded into a system of law. The judgment of the Conseil got acquired the force of law, the
force of precedents.The droit administratif continued to be regularly developed during the
change from the Empire to a Republic by the German envision and the Civil War of 18601908.
Napoleon held that the Judges must never be allowed to hamper the actions of the
Government. This gave free hand to the Executive as there was no forum where the citizen
could go to get redress to his grievances against the administration. This led Napoleon to
build a solid governmental machinery, to keep the administration under effective control. To
give effect to this conviction, Napoleon constituted two classes of Courts, judicial or
common law courts and the administrative courts such as the Court of the Perfects (Conseil
de Prefecture) and the Conseil d Etat. Napoleon displayed, towards the ordinary judges, the
sentiments of contemptuous suspicion, embodied in revolutionary legislation. He held,
Judges are the enemies of the servants of the State.
The judicial tribunals were forbidden to interfere, in any way whatever, with any acts of
legislation. The administrative Courts, in their turn, had no direct concern with matters which
fell within the jurisdiction of the judicial tribunals. In Napoleon's time, the judges could not,
without the consent the Government, have entertained criminal or civil proceedings against
an official for a wrong done or a crime committed by such official in respect of private
individuals when acting in discharge of his official duties.

(v) Conseil d'Etat


The Conseil, also characterised as the bulwark of civil liberties and also as the guardian of
administrative morality was constituted in 1799 or revived by Napoleon, was the very centre
of his whole Government fabric. It consisted of the most eminent administrators whom
Napoleon could gather round him.

In the beginning the function of the Conseil was advisory and was not an independent court.
Its main function was to give advice to the Ministers. The members of the Conseil took part
in affairs of all description and constituted the Government. They held office at his pleasure.
They dealt with policy, with questions of administration, with questions of Administrative
Law. It was in 1872 that the Conseils decisions acquired by law the character of real
judgments. These were in reality advice on questions of droit administrative, given by the
Conseil to the head of the Executive and the advice, he was not absolutely bound to follow.
At present, in all matters involving administration, the jurisdiction of the Conseil is final. All
matters involving administration are decided by the by administrative courts headed by the
Conseil, according to the rules developed by themselves. The Conseil is, at present, not only
adjudicatory but also consultative body. By the gradual separation of its, judicial from its
executive functions, the Conseil has been converted from an executive into a judicial or
quasi-judicial body. The judicial functions have been transferred to the Committee, which has
assumed more and more, distinctly, the duties of Courts. It was by a natural process that the
judicial functions of the Conseil became separated from its executive powers. This process,
by legislation, has of quite recent years, changed the Conseil into a real tribunal of Droit
Administratif.
It consists mostly of civil servants who in theory can be dismissed by political authorites.
Thus, while on the face of it this body may not seem to be as independent and impartial as an
ordinary court, but as a matter of fact, because of the emergence of certain practices and
conventions, the Conseil is very independent in practice. The Conseil is composed of the
cream kf the French civil service. The Conseil DEtat is an important administrative tribunal.
It acts as the court of appeal from all other administrative tribunals. Because the Conseil acts
as the central appellate adminitraive tribunal, it has been possible to secure the unity of droit
administratif and also the tribunals of france have come to have cohesion an autonomy
unknown in common law countries where there functions many tribunals without any single
general administrative appellate tribunal. The Conseil also acts as the court of first instance
for cases for recourse pour excess de pouvoir against the decrets of the administration.14
The administrative tribunals have spelled out two principal limitations on administrative
bodies. One,these bodies must not act against the law; two, they must pay damages when
they is cause injuries. If an administrative action is ultra vires, it can be nullified by the
tribunal by recours pour excess de pouvoir on an action brought by the affected private
citizen. The scope of this action is very broad and it constitutes the best means to protect
citizens against abuse of power. The Conseil can supervise the form and content of
administrative decisions. It can also supervise the grounds on which administrative action is
taken. As regards the action for damages, damages can be granted to an individual when he is
injured by an administrative action not only when the state is at fault also when not at fault.
This gives significant protection to the individual against the wrongs of public
administration.15
14

Shakil Ahmed Khan and Publishers editorial board ,Principles of administrative law (commentary), seventh
edition 2011, Lexis Nexis Butterworths pg 41
15

ibid

Droit Administratif does not have a separate code for itself like the Civil Code. The Conseil
d' Etat has developed and elaborated the doctrines on its own.

(vi) Tribunal des Conflicts


In case of conflict between the ordinary courts and the administrative courts regarding the
jurisdiction, the matter is decided by the Tribunal des Conflicts. The Tribunal consists of nine
members, three members of the Courde cassation elected by their colleagues; three members
of the Conseil d Etat, also elected by their colleagues; two other persons elected by the
above six judges; and the Minister of Justice who presides over the Tribunal and is known as
the President.
All the eight members hold office for three years. They are almost invariably re-elected. The
tribunal elects from its own members, a Vice-President, who generally presides. It comes
near to an absolutely judicial body and commands general confidence.
However, its connection with the Government through the Minister and the absence of
permanent tenure of office for its members, the Tribunal detracts it from the judicial
character.
It has judges and civil servants in equal members with the Ministers of justice with the
president, butb he rarely presides over it only when members of tribunal are equally divided
it may be necessary for him to use his veto.

(vii) Dicey's Criticism of Droit Administratif


Dicey, defined droit administratif as that portion of French Law which determines the
position and liabilities of state officials; the civil rights and liabilities of private individuals in
their dealings with officials as representatives of the State; and the procedure by which these
rights and liabilities are enforced.
Dicey points out that the system is based on the following ordinary principles:that, the government and every of the government possesses, as representative of the
nation, a whole body of special rights, privileges or prerogatives as against private citizens,
and the extent of rights, privileges or prerogatives is to be determined on principles different
from the considerations which fix the legal rights and duties of one citizen towards another;
that, an individual in his dealings with the State, does not, according to French law, stand
on the same footing as that on which he stands in dealing with his neighbour, and
that, the government and its officials should be independent of and free from the
jurisdiction of ordinary courts.
Based on the above principles, which he held were alien to English Law, Dicey criticised
Droit Administratif as opposed to rule of law. Dicey displayed an utter lack of perception into
this system. He was a greater believer in ordinary courts. Any transfer of judicial powers to
any other agency was anathema to him. He maintained that Administrative Law was utterly
foreign to English system, that it was incompatible with the rule of law with the Common
Law, and constitutional liberty as he understood it. Dicey unfortunately, misunderstood the

French system and formed an opinion that Administrative Courts in France extended
Government Official special rights, privileges and prerogatives against private citizens and it
had resulted in miscarriage of justice Dicey asserted that the ideal of having separate bodies
to deal with disputes in which Government was concerned, and keeping such matters out of
the purview of the common courts, was unknown to law of England and indeed was
fundamentally inconsistent with the English traditions and customs.
In conclusion, Dicey observed that the basic feature of the droit administratif is so foreign to
British nations that it is impossible to identify droit administratif with any branch of English
law- since there is an inherent and irreconcilable difference or contradiction between the droit
administratif and the Rule of Law.16
Dicey's criticism of droit administratif was held to be misconceived and miscomprehended.
His denunciation was said to be based on his mistaken conclusion that the administrative
courts of France, culminating into Conseil d Etat, must exist for the purpose of giving to
officials a whole body of special rights, privileges or prerogatives as against private citizens,
so as to make them a law unto themselves.He also ignored the growth of administrative
tribunals in England in his times. His contemporary Maintland, did recognise the existence of
Administrative Law in England. By 1915, after the famous decisions in Board of Education
v Rice17 and Local Government Board v Arlidge18 Dicey himself admitted the emergence
of Administrative Law in England.
The reality, state Wade & Forsyth, is that "the French Conseil d Etat is widely admired and
has served as a model for other countries, administrative courts have succeeded in imposing a
genuinely judicial control upon the executive and in raising the standard of administration.
They are impartial and objective courts of law in the fullest sense. An interesting aspect of
the French system, they hold, is that the administration has succeeded in developing from
within itself, its own machinery of self-discipline, administrative in its origin, but, yet fully
imbued with legal technique.
Schwartz also says, An analysis of the French Law of State Liability shows clearly that it
has developed a complete system of State responsibility far beyond anything thus far evolved
in the Common law world....The State in France is no longer liable only or even primarily on
the basis of fault. The rule now generally applied by Conseil d Etat is that of absolute
liability. The French State is responsibly practically in every case where damage has been
caused by its acts.
The real position, however, was totally different. In France, administration was under the
control of real Judges, who were impartial and objective in true sense. Actual study of droit
administratif has proved that no single institution has done so much for the protection of
private citizens against the excesses of administration as has been done by Counseil dEtat
which was considered to be a model for other countries.

(viii)Concrete Cases
16

http://www.shareyouressays.com/111383/administrative-law-as-opposed-to-rule-of-law-discussed
Board of Education v Rice (1911)AC 179
18
Local Government Board v Arlidge (1915) AC 120
17

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(a) if an employee in a government factory is injured by an explosion, according to the


administrative courts in France, the risk should fall on the state, but the English courts will
not hold the State liable unless the injured proves negligence of some servant of the Crown.
Thus, English courts still apply the conservative and traditional approach that there should be
no liability without fault; on the other hand, French administrative courts adopt the theory
that justice requires that the State should be responsible to the workman for the risk which
he runs by reason of his part in the public service'.
(b) On the one hand, when a passer-by chased a thief and was stabbed, the Conseil d Etat
held that he was entitled to recover damages which would not have been done under the
English Law. On the other hand, as the French administrative courts are recognised as
guardians of public servants, the latter also get better protection from their employers. Thus,
where a Rector of Strasbourg Academy was asked to take up some other duties and relieved
from his post without in fact new duties being assigned to him, the administrative court held
that he was removed from service and gave him redress. According to Denning in England,
the ordinary courts of law could not have protected him because as a rule, public servants can
be dismissed by the Crown at pleasure.
(c) Under the Act of 1872, the government had a right to have a monopoly of manufacturing
matches and for that purpose it could acquire the factories run by private persons A provision
to pay the compensation for compulsory acquisition was also made in the Act. However, if a
factory was ordered to be closed on the ground of improvement of health no compensation
was required to be paid. In one case, an order to close the factory was passed by a minister on
the ground of improvement of health, but in reality, the motive was to avoid payment of
compensation to the owner of the factory. An ordinary court could not have given any
redress to the owner in this case, but the Conseil d Etat held that, the power was abused by
the Minister and awarded 20,000 pound to the victim factory owner.
(d) A, a private gas company entered into an agreement with the Town Planning Council to
supply gas at a particular rate for a period of 30 years. The agreement was made on the basis
of the rates of coal in the year 1904. But after the First World War, the rates shot up. An
application was filed by the gas company before the Conseil d'Etat for revision of rates. An
ordinary court would have rejected this application and would not have granted the relief
prayed for, but the Conseil accepted and revised the rates. According to the Conseil, it was in
the interest of the public at large that the company should continue to work rather than be
wound up and if compelled to provide gas at the fixed rates, it amounted to compelling the
works into liquidation.
(e) Barels case: The Minister concerned did permit certain candidates to appear at the civil
service examination. It was reported in the newspaper that the Government had decided to
refuse permission to candidates who were Communists. The Minister, however, denied it.
The candidates approached Conseil d Etat, which quashed the order, since no reasons were
recorded by the Minister for refusing such permission. The Conseil presumed that there were
no reasons which would justify such a refusal. Thus, the Conseil d took the view in 1954
which was taken by English Court in 1968.19

19

Padfeild v Minister of Agriculture 1968 AC 997

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(f) Fortunes case: A wanted to appear at a competitive examination. He was not permitted
to appear on the ground that his confidential file contained certain adverse remarks. In an
action by A, the Conseil d Etat went through the records and called upon the Secretary to
justify the order. The Secretary pleaded that it was an Act de Government (Act of State) and
that the court had no jurisdiction deal with the matter. He did not produce any document. The
court passed an order to produce the entire file relating to the matter, went through it and
quashed the order. In England, governed by the rule of law one cannot conceive of such a
situation, for the ordinary courts of law have no right to interfere with any Act of State or
with neither ministerial discretion, nor can they have access to the secret documents.
(g) Again, when the decision of Liversidge v Anderson20 was brought to the notice of the
French Administrative Tribunal wherein the principle of subjective satisfaction was upheld
by the court of law even in a case of preventive detention, the Conseil d Etat was unable to
agree with the same. According to the French officials, the decision in Liversidge cannot be
accepted in any civilised country and more particularly in a country which had evolved the
concept of rule of law.

(ix) Indian Position

In the case of Ms. Ranjana Agnihotri and Others v Union of India Through Secy.
Ministry of Home Affairs & Others21 it was held that to meet out the challenges which
different democratic countries are facing, the development of Administrative law is the
combination of French Droit Administratif, Dicey's 'rule of law' and practicalities coming in
the way of establishing the 'rule of law' and 'good governance'. That is why, in Indian context,
the separation of power has been held by Hon'ble Supreme Court as 'broader' in term and not
'strict' vide in catena of decided SC judgements.
The Droit Administrative finds a mention in the case of Re: Mehar Singh Saini, Chairman,
HPSC and Ors22 where it was stated that higher the public office, greater is the
responsibility. The adverse impact of lack of probity in discharge of functions of the
Commission can result in defects not only in the process of selection but also in the
appointments to the public offices which, in turn, will affect effectiveness of administration
of State. Most of the democratic countries in the world have set up Public Services
Commissions to make the matter of appointments free from nepotism and political patronage.
For instance the Counsel d 'Etat in France, which is composed of the cream of the French
Civil Service, has acquired considerable veneration for its capacity to police intelligently the
complex administration of the modern state. Justice J.C. Shah in his report on the excesses of
the Emergency, struck by the "unhealthy factors governing the relationship between ministers
and civil servants", recommended the adoption of Droit Administratif of the French model by
the Government. He observed that the commitment of a public functionary should be to the
duties of his office, their due performance with an emphasis on their ethical content and not
to the ideologies, political or otherwise of the politicians, who administer the affairs of the
State.
In the case of Additional District Magistrate, Jabalpur Vs. Shivakant Shukla 23Professor
Macdonald was quoted : It is clear enough that high echelon administrators are
understandably impatient with the restraints imposed upon them by the traditional concept of
20

Liversidge v Anderson 1942 AC 206 :(1941) 3 All ER 338


Ms. Ranjana Agnihotri and Others v Union of India Through Secy. Ministry of Home Affairs & Others
2013(11)ADJ22
22
Re: Mehar Singh Saini, Chairman, HPSC and Ors (2011)1SCC(LS)423
23
Additional District Magistrate, Jabalpur Vs. Shivakant Shukla AIR1976SC1207
21

12

the rule of law as developed by Dicey. Administrators deal with the implementation of highly
technical and complex matters involving the immediate interests of many citizens. To
accomplish this they are granted wide discretion in the use of administrative power to
effectuate broad policies laid down by the legislators. It is natural, that they should desire to
have the conflicts which arise as the result Of the exercise of their discretion adjudicated by
tribunals composed of experts acquainted with the details of the matters at issue, rather than
by judges trained only in the law. Hence their resistance to judicial review of administrative
'findings of fact' as opposed to 'findings of law'. The very things which a court of law prizes-rules of evidence, common law procedures, even due process--frequently appear to the
administrators as obscurantist devices employed by those who oppose the very principle of
the policy he is attempting to effectuate. Often, secretly if not openly, the administrator
considers ins policy to be the incarnation of the best interests of the people, or at least of their
best interests if they really understood them, and hence considers himself as arrayed on the
side of progress and light against the dark forces of reaction.
It was further stated that our 'wonderland of bureaucracy', as Beck has called it, has sought
autonomy from the traditional rule of courts and law. If it should succeed we should then
indeed be confronted with a vital segment of governmental power which would have escaped
from legal control and become arbitrary in its acts. To prevent this we have subjected the acts
of administrators to challenge in the courts on the basis of ultra vires, and provided for
judicial review of administrative tribunals' rending of law.
In paragraph 239 of the judgement it was said that Dicey, bewitched by the beauties of an
unwritten British Constitution could have been shocked by any modern transgressions of the
basic principles of his "Rule of Law"--in the Introduction to later editions of his book, Dicey
modified his earlier views, to some extent, about the nature and purposes of Droit
Administratif.
Need for Establishment of a similar Institution in IndiaIt is true that the establishment of an institution similar to Conseil dEtat in France may not
be quite suited to the conditions in India. However it is necessary to develop administrative
courts in the lines of the French Conseil dEtat because that will serve as counterpoise to the
arbitrary action of the administration.
The creation of separate hierarchy of administrative courts brings about a clear division
between the spheres of civil and administrative law. There are separate law reports in both the
branches of law. In India there is expansion of the public sector and the State is assuming
increasing control over the life of the community. There is a move for building as equalitarian
society. In this context, it is desirable that India should develop a well ordered system of
administrative law which may be able to absorb the new relations of public into this legal
system.
The Indian administrative law while basically common law oriented as the Administration is
subject to judicial control, has also imbibed some features of Droit Administratif as is evident
from the increasing tribunalisation of the decision making process.24
24

http://www.lawyersclubindia.com/articles/Administrative-law-in-India-In-need-of-reformation
4657.asp#.VNOs69LLe70

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(x) Conclusion
In the words of Brown and Garner- success of the droit administratif in subjecting the
administration to the rule of law, may be attributed to the following factors:

the composition and functions of the Conseil d Etat;


the flexibility of its case law;

simplicity of the remedies available before the administrative courts;

the special procedure evolved by those courts: and

the character of the substantive law which they apply.

The crucial test for judging the efficacy of the system of administrative law of a country is
how effectively administration is controlled in exercising its powers and whether or not a
citizen has an adequate redressal mechanism in case he is hurt by the administration. It is
being brought out that Droit Administratif has succeeded to provide expeditious and
inexpensive relief as also better protection to the individuals against the administrative acts or
omissions than the Common Law system. Confidence in the administrative courts is shared
by administration and public alike; the members of the Conseil d Etat are not only judges but
they are fully trained in the expertise of administration, and there is considerable movement
between posts inside and outside the Palais Royal. In its relations with the public, Conseil d'
Etat commands surprisingly full press reporting of its activities and enjoys a general respect
comparable with that shown to the High Court Bench in England.
Dicey had believed that administrative tribunals will be partial to the administration. But the
truth is that the Conseil d Etat in discharging its judicial and controlling functions has
achieved a high degree of objectivity. Meeting the criticism of the system, the researchers
have shown that no single institution has done so much for the protection of private
individuals against the excesses of the administration as has been done by the Conseil d Etat.
It has been concluded that droit administratif, though administered by bodies, not in strict
sense courts, though containing provisions not reconcilable with the modern English
conception of the rule of law, comes very near to law, utterly different from the capricious
prerogatives of despotic power.
As a result of the effective implementation, some elements of droit administratif are filtering
into common law system.

14

Bibliography
Books referred
Khan Ahmed Shakil and Publishers editorial board ,Principles of administrative law
(commentary), seventh edition 2011, Lexis Nexis Butterworths
Kumar Narendra, nature and concepts of administrative law, e.- 1st [2011],
Thakker C.K Administrative law 1992, Eastern Book Company
Websites referred

http://www.newworldencyclopedia.org/entry/administrative_law#Administrative_law_in
_France
http://translate.google.co.in/translate?
hl=en&sl=fr&u=http://fr.wikipedia.org/wiki/Droit_administratif&prev=search

http://www.helsinki.fi/oikeustiede/oppiaineet/kv_oikeus/COMPARING+ADMINISTRA
TIONS.pdf

http://www.lawyersclubindia.com/articles/Administrative-law-in-India-In-need-ofreformation 4657.asp#.VNOs69LLe70

http://www.shareyouressays.com/111383/administrative-law-as-opposed-to-rule-of-lawdiscussed

http://lawfullylawyered.blogspot.in/2013/01/characteristics-of-droit-administratif.html

http://www.lawnotes.in/Droit_Administratif

http://www.lawyersclubindia.com/articles/Administrative-law-in-India-In-need-ofreformation

Articles referred

Francesa Bignami Comparative Administrative law ,George Washington University


Law School, Public Law and Legal theory Paper

15

James W. Garner French Administrative Law The Yale Law Journal , Vol 33, No 6 ,
April 1924

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