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COMPARATIVE ANALYSIS OF DROIT ADMINISTRATIF
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COMPARATIVE ANALYSIS OF DROIT ADMINISTRATIF
AUTHORED BY - ADITI GATTUPALLI
ABSTRACT:
Droit
Administratif is recognized as one of the most important and relevant concepts
of the French Administrative system. It came to be considered as the first
system that has taken all the necessary steps to protect its citizens against
the arbitrary action of the administration. With time, the other countries of
the world also tried to adopt this system. While some countries were successful
in doing so, the others found it difficult to mold it as per their
requirements. India is one such country that tried to adopt the droit
administratif system. This paper tries to draw a comparative analysis between
the original French Administratif system, and the version adopted by India.
This paper talks about the process of tribunalisation in India and also analyzes
important cases for a better understanding of the same.
INTRODUCTION:
Administrative
law is a branch of the law that governs the executive or administrative
sectors. As per Sir Jennings[1],
‘Administrative law is the law relating to the administration. It determines
the organization, powers, and duties of administrative authorities’. In other
words, administrative law is the branch that looks into the roles and duties of
the other organs of the state. One of the main reasons for the growth of
administrative law is the transformation of the police state to a welfare
state. With time, nature of the state became more and more complex. The state
started to undertake activities, such as sanitation and education, to ensure
the welfare of its citizens from cradle to grave. This is when administrative
law became more prevalent and relevant. There are numerous sources of the
administrative law such as the Constitution of India, various Acts, Judicial
decisions, notifications, circulars etc. Article 14 of the Constitution of
India[2]
guarantees equality before law and equal protection of the law. The
interpretation of this article states that equal treatment shall be meted out
to all citizens. This article ensures to strike out the arbitrary behavior of
the state. Hence, the Constitution of India, itself, lays down the basis for
the smooth functioning of administrative law. [3]
Dicey
interpreted administrative law to refer to that component of a legal system
that governs the legal standing and obligations of the state officials.
Secondly, it states that administrative law looks into the rights and duties of
individuals while engaging with public authorities. Finally, administrative law
describes the mechanism for enforcing such rights and responsibilities.
FRANCE:
HISTORY OF DROIT ADMINISTRATIF
France has, since forever, witnessed
a power tussle between the administrative courts and the judicial courts. In fact, this battle between traditional
Bonapartists and Reformist Parliaments was a major factor of the French
Revolution of 1789[4]. The
former advocated for regular courts’ exclusive jurisdiction, while the latter
suggested for executive authorities’ predominance. This saw the rise of
Counseil du Roi and Couseil d’Etat. Initially, the Counseil de Roi had the
supreme authority over all legal and administrative matters. However, with the increase in the Monarch’s
power, the judicial courts were restricted from interfering in administrative
matters. This separation of power did not last long and blurred out with the
weakening of Monarch’s control.[5]
Around 1790s, it was laid down that the judiciary and administrative matters
must be dealt with separately and cannot intertwine. Further, there would be
serious repercussions such as being held guilty for misprision if the judges
were found to be interfering in administrative matters. It is then that the
concept of droit administrative rose to prominence in the 18th
century, during the reign of Napoleon Bonaparte. He established Counseil d’Etat
which consists of three levels of courts namely, the district administrative
bodies (Tribunax Administratifs), Courts of Appeals (Cours Administratives
d’Appeal) and the Board of State (Counseil d’Etat). [6]
ANALYSIS OF DROIT ADMINISTRATIF
Under the France Droit Administrative
system, there are two set of independent courts that are set up. One set of
courts are the administrative courts and the other are the ordinary civil
courts. These two sets of courts are completely independent of each other. The
ordinary civil courts administer ordinary civil law. In other words, in looks
into matters concerning disputes between citizens (i.e., subjects and
subjects). Administrative set of courts, on the other hand, looks into disputes
between the State and the subjects. Any Administrative authority or official is
not subject to the jurisdiction of ordinary civil courts exercising powers
under the civil law in disputes between private individuals. All disputes which
involve any administrative officer or state official, as a party to the case, shall
fall outside the ambit of the ordinary courts. [7]
The concept of Droit Administrative
contradicts Dicey’s ‘Rule of Law’. Dicey’s theory states that every individual
of a State shall be subjected to the same law and equal treatment. The theory
also states that no one, irrespective of whether they are an officer or any
supreme authority, shall fall outside the purview of the Rule of Law. Dicey
opined that the Droit Administratif would lead to complete injustice in the
state of France. He was of the opinion that, owing to this special treatment of
certain officials, there was no law in France. However, with time, his
speculations were proven to be wrong. [8]
The principle of droit administrative
is an important basic idea in the French Administrative law that controls the
government’s interaction with its citizens. This idea emphasizes the need for
safeguarding the rights and interests of an individual against the probable
power abuse by the government. This refers to a system of laws that regulate
the organization, powers, and duties of public administration and as well as
the interaction between the citizens and the officials. Waline, a renowned
French Jurist, laid down three fundamental principles of Droit Administratif,
which are as follows[9]:
1. The power of administration to act
Suo Motu and impose directly on the subject the duty to obey its decision.
2. The power of the administration to
take decisions and to execute them Suo Moto, may be exercised only within the
ambit of law which protects individual liberties against administrative
arbitrariness.
3. The existence of a specialized
administrative jurisdiction
Droit Administratif has certain
features and characteristics that are unique to this system. The main
distinctive aspects of droit administrative are: i) Administrative courts have
authority over the problems pertaining to the state and administrative
litigation, which cannot be looked into by ordinary courts; (ii) Administrative
court rules are followed by individuals who make judgements affecting the state
and administrative litigation; (iii) If there is a dispute about jurisdiction
between regular courts and administrative courts, the tribunal des conflits
rules; (iv) The Conseil d'Etat is the highest administrative court.[10]
ADVANTAGES OF DROIT ADMINISTRATIVE
Though the Droit Administratif system
faced a lot of backlashes when it was introduced, with time it justified the
faith reposed in it. This system avoided the issue of State Responsibility that
Common Law countries often face. Further, the ordinary civil courts are often
bound by rigid rules and cumbersome processes. However, administrative
adjudication is not confined by the jargons of judiciary. This system proved
Dicey’s speculations to be futile, by becoming the first ever system to take
such bold steps in order to protect its citizens. It also provides relief to the
courts, which are otherwise overburdened.
The Counseil d’Etat found that the State behaved with all honesty, and
that an executive agency could be held accountable to any individual that has
suffered any injuries or loss, as a result of any government activity. The
Droit Administratif avoided the cumbersome and taxing process of the common
citizens visiting ordinary courts to challenge the conduct of the state and the
consequent possibility of applying “King can do no wrong”. [11]
CASE ANALYSIS
One can understand the implementation
of this system by looking at a few cases. The ‘Fortune Case’ is considered to
be one of the most important cases of France. ‘A’ wanted to appear at a
competitive exam, however, wasn’t permitted on the ground that his confidential
file contained some adverse remarks. The Couseil d’Etat was involved in it and
was requested to go through previous records. The secretary pleaded that it was
an Act of State, and the court had no jurisdiction to deal with it. The court
passed an order to produce the entire file relating to the matter and after
thorough understanding of it, quashed the order. [12]
The Blanco case is considered to be
the judgment that provided an in depth understanding of Administrative
Law. This case dates back to 1873 and is
considered to the starting point or rebirth of the French Administrative Law. It
was in 1871, that, Agnes,the 5-year-old daughter of Jean Blanco, a distiller
worker at a factory in Bordeaux, was overrun by a wagon. The wagon was owned by
the Bacalan Tabacco Factory and on the day of the incident was full of Kentucky
Tabacco. The wagon then ran over her,
causing her severe injuries. Jean decides to file an action against the
company. Jean pleaded the case to the Counseil d’Etat, while the other party
argued that this matter should be dealt by the ordinary civil courts. They
contended so since they were of the opinion that the act was not done by the
state itself, but by the employees. Hence, the state is only indirectly
involved. The court made a note of the differences in the opinions of the
parties. The conflicts tribunal affirned the jurisdiction of the administrative
courts. This case laid down the foundation for all other following cases. [13]
Another landmark case is that of
‘Barel Case’. The minister in charge did not permit a handful of students to
appear in the civil services examination. It was reported in the newspaper that
the government restricted a few students for appearing in the exam, since they
were communists. The minister, strongly, denied these claims. The affected
candidates approached the Counseil d’Etat.[14]
INDIA:
ADMINISTRATIVE LAW
While the world claims to have recognized
administration law only around the 20th century, India had seen a
glimpse of it way before. Administration law, in India, can be traced back to
the properly structured administration under the Gupta and Maurya dynasties.
Mughals soon followed their footsteps. The rulers, of that time, were majorly
entrusted with three functions. These three functions were to collect taxes,
maintain the law and order of the state and protect the state from any external
aggression. This was known to be the ‘Rule of Dharma’ and none of the subjects
sought any exemption from it. The emperors strictly followed the principles of
natural justice and ensured fair treatment to all subjects. Rule of Dharma was
considered to have a wider ambit than the Rule of law. Despite having a
structure in place, there was no administrative law in existence to ensure its
implementation. Hence, it became the moral duty of the king to follow the Rule
of Dharma.
However, there was a change in the
scenario with the arrival of British in India. The establishment of the East
India Company increased the powers of the government manifold. The Britishers introduced several laws and
acts to look into sanitation, security of the citizens, transportation
conditions, etc. However, all these statues were scrapped with the exit of the
EIC. There was a surge in the responsibilities of the state post-independence,
hence the state adopted the ‘Rule of Law’ and the ‘Judicial Review of State
Actions’. [15]
Over these past few years,
administrative law has helped in the development and growth of various sectors.
Several acts, such as The Indian Petroleum Act, 1899; The Arms Act, 1878; The
Sarais Act, 1867; The Indian Explosives Act, 1884 were implemented to ensure
the prohibition of carrying out, without permission, any activity, or goods,
which could pose as a potential threat to the public at large. The Companies Act, 1850; The Reserve Bank of
India Act, 1934; Industries (Development and Regulation) Act, 1951 are one of
the few major statues that were introduced for economic regulation and to
ensure socio-economic justice. Administrative law has also come in handy to
deal with complex issues of corruption, privatization, liberalization,
nationalization while ensuring socio-economic and political justice. [16]
DROIT ADMINISTRATIF
After Independence, India shifted
from a police state to a welfare state. The gears shifted from laissez faire to
social welfare. There has always been an ongoing debate about introducing droit
administration in India. However, with time it was recognized that the concept
of Droit Administratif is quite unique to France. India has always had the
opinion, that the judiciary should be independent and should not be intermixed
with the administrative duties. However, in the 20th century,
government social and economic policies had a substantial influence on
residents’ private rights such as employment, planning, education, health,
housing, pension, manufacturing of commodities etc. Traditional legislative and
judicial systems were unable to properly address these issues. It led to a rise
in delegated legislation and tribunalisation.
India, though does not have two set of independent courts, has adopted
Droit Administratif in the form of tribunalisation. The former Chief Justice of
India had remarked that ‘the India’s three tier tribunal system appears to
resemble the Droit Administrative system of France’.
India has witnessed tribunalisation
of various facets of law, even before the Constitution of India made any
mention of the same. The term tribunal has been defined as ‘Court of Justice’ or
committee appointed to adjudicate on claims of a particular kind’. The term
‘Tribunal’ was coined by Justice Bhagwati in the historic case of Minerva Mills[17].
Until then, tribunals were often to referred to as the ‘alternative
institutional mechanism’. Further, in this case the court also declared that
there cannot be any other replacement for ordinary courts. If need be, there
can be another form of redressal. However, India has come a long way in
recognizing the role of administrative law and tribunals in India. The 14th
Law Commission report was titled as ‘Reforms of Administration of
Justice’. It was in this report that an
in-depth study led us to believe that the establishing Counseil d’Etat is not
feasible for a widely diverse and populated country like India. Further the
report also mentions that setting up of tribunals would not be in a manner that
is supplementary to the ordinary courts. Further, it would also be against the
basic structure of the constitution to be replacing or interfering with the
judiciary. The same was reiterated in the case of Durga Shankar Mehta vs
Raghraj Singh[18],
wherein the Supreme Court interpreted that the expression ‘tribunal’ used in
Article 136[19] of the
Indian Constitution does not include courts under its ambit. Thus, clearing any
iota of doubt.
The Administrative Reforms Commission
was formed by the Government of India in the year 1967 to come up with a viable
solution. The report of the commission stated that there was a need to
establish tribunals in two major areas, namely, (i) service matters and (ii)
sales tax, customs, central excise matters and motor vehicles act. It was then
that Part XIV-A was inserted through the 42nd amendment. This part of
the Constitution dealt with Articles 323A[20]
and 323B[21]. These
Articles deal with administrative tribunals and other tribunals respectively. These
articles provided limited powers to the tribunals and review powers to the High
courts. This model was identified to be very similar to that of the France’s
Droit Administratif, however with and Indian and common law’s touch to it. [22]
Article 323A[23]
of the Indian Constitution deals with Administrative Tribunals. These were set
up by an Act of Parliament, namely the Administrative Tribunals Act, 1985[24]. It
majorly adjudicates disputes with respect to recruitment and conditions of
services of persons appointed to posts in connection with the affairs of the
States and the Union and of persons appointed to the public services. There are
State Administrative Tribunals, Central Administrative Tribunals and Joint
Administrative Tribunals. This also include National Green Tribunals, Armed
Forces Tribunal, Water Dispute Tribunals, and Income Tax Appellate Tribunal
under its ambit. National Green Tribunals play a pivotal role in dealing with
environmental cases. It was set up for expeditious disposal of cases related to
environmental protection and conservation of natural resources such as forests,
water etc. [25]
The main aim of tribunalisation, is
very similar to that of Counseil d’Etat. Their main objective has been to
ensure speedy disposal of cases, to provide affordable justice and to provide
for experts in niche areas. Further, tribunals have judicial members who have
high technical knowledge. Hence, they are in a good position to assist courts
in difficult cases. However, this does not mean that they have exclusionary
powers. The Indian constitution has given the high courts and the supreme
courts the sole power to try cases. The courts, further, struck down those
provisions of the administrative act which awarded exclusionary powers to these
tribunals.[26] Another point of contention has been whether
it is mandatory to establish a tribunal. However, Article 323A of the Indian
Constitution has mentioned that it is not so. The government has the complete
discretion upon the decision with regards to its establishment. The court went
on to make the statement that the tribunals were unable to fulfill their main
objective of providing speedy disposal. Hence, article 323 becomes merely an
enabling statute.[27]
However, it is not in all cases that
the speedy disposal has been possible. Some critics are of the opinion that the
tribunals have massively failed in ensuring speedy disposal of cases. Instead,
it has only led to more confusion and chaos amongst the commoners. Further,
their objective is lost since the statute does not the citizens to directly
approach the Supreme Court to appeal against the order of the tribunals. Hence,
despite having established tribunals, the legal justice process remains
cumbersome and taxing. Some opine that instead of establishing tribunals, more
benches for the high court and the Supreme Court, must be instituted.
America
Common law countries have developed a
distinct and unique system of judicial review. They resort to the establishment
of quasi-judicial bodies, instead of two separate and independent set of
courts. The Americans have a very narrow meaning of administrative law.
Administrative law means ‘the best designation for the system of legal
principles which set conflicting claims of executive or administrative
authority on one side, and of individual or private right on the other’. The French
content on Droit Administratif can be compared to the American text of Davis on
Administrative law can be divided mostly into three sections namely the: 1) the
transfer of authority to the administration from legislature, 2) administrative
procedure, 3) judicial review. However, there is an essential difference
between the judge who has established droit administrative and the judge who
has developed the Anglo-American administrative law. In France, however, law
courts concerned with the administration of justice between persons have played
only a modest role in this subject. The French Administrative law developed
through a succession of administrative courts, a collection of tribunals which
have been established outside of the traditional judicial system. Under the
Anglo-American system, the state is subject to the same law and the courts, as
the ordinary people. Anyone who is hurt by administrative actions can seek
redress in the regular courts. [28]
Conclusion
The Droit Administratif System has
time and again proved that it goes to great lengths to protect an individual’s
rights against the state. It also ensures to keep a check on the working of the
state and avoid arbitrary use of power. Droit Administrative has also been able
to fulfill its objectives of providing inexpensive, speedy, and effective
remedial measures to those affected. It has shut down all criticism by becoming
the only single institution to do so much for the protection of its
citizens. However, the main point of
contention is whether the Droit Administratif system should be adopted by
common law countries such as the USA, UK, and India. It was in the case of
Delhi Bar Association, that the court held that ‘tribunals should not be seen
as departments of ministries or as part of the administration nor must they be seemed
to be so independent so as to be excluded from jurisdiction of ordinary courts.
Hence, adoption of the Droit Administratif system is the best way ahead’.
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[1]C. K Takwani,
Lectures on Administrative Law 2-3 (17ed. 2020).
[2] INDIA CONST. art 14.
[3]Understanding the
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(last visited Oct 4, 2023).
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(last visited Oct 4, 2023).
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(last visited Oct 4, 2023).
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[8] J. Adi Narayan & Neeraj Sastry,
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ISSUE 3.
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rule of law consists of three main principles: 1 ...,
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[10] Droit Administratif, Jamia Milia
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[11] J. Adi Narayan & Neeraj
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INDIA, VOL1 ISSUE 3.
[12] C.K
Takwani, Lectures on Administrative Law.
[13] Charles Bosvieux-Onyekwelu, Revenir sur une
légende en sociologue : l'arrêt Blanco et le mythe de la « naissance » du droit
administratif français, 101 Dans Droit Et Societe 159, 159-178.
[14] Padfield
v. Minister of Agriculture fisheries and food, 1968 ac 997.
[15] Development and evolution of
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(last visited Oct 4, 2023).
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(last visited Oct 4, 2023).
[17] Minerva Mills v. Union of India,
1980 AIR 1789.
[18] Durga Shankar Mehta vs Thakur
Raghuraj Singh, 1954 AIR 520.
[19] INDIA CONST. art 136.
[20] INDIA CONST. art 323A.
[21] INDIA CONST. art 323B.
[22] Tanya Bansal, Evolution of administrative courts in France
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visited Oct 4, 2023).
[23] INDIA CONST. art 323A.
[24] Administrative Tribunals Act,
1985.
[25] Ravindranath Aishwarya, Tribunalisation
of Justice: A comparative of France and India, Indian Journal of Law and Legal
Research, VOL 5 Issue 1.
[26] Abraham, Alan, History of Administrative
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India and Analysis of Related Cases (April 21, 2022).
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Article Information
COMPARATIVE ANALYSIS OF DROIT ADMINISTRATIF
Authors: ADITI GATTUPALLI
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/02/10
- Issue 7
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International Journal for Legal Research and Analysis
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