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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

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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 non-interference by the Courts in the working of administrative authorities.3

(i) Definition

Droit Administratif has been defined by the French authorities in general terms as- the body of rules which regulate the relations of the administration of the administrative4

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

1 Prof. Narender Kumar, nature and concepts of administrative law, e.- 1st [2011],2 James W. Garner “French Administrative Law” The Yale Law Journal , Vol 33, No 6 , April 19243 http://www.lawyersclubindia.com/articles/Administrative-law-in-India-In-need-of-reformation 4Administrative authorities are those which have the right manage or perform executive duties of the government, institution or business.

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

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

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 d’Etat), 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

5 Supra note 16 Shakil Ahmed Khan and Publishers editorial board ,“Principles of administrative law (commentary)”, seventh edition 2011, Lexis Nexis Butterworths7 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_Administratif9 C.K Thakker “Administrative law” 1992, Eastern Book Company

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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

(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 are-

Firstly, 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

10 Francesa Bignami “ Comparative Administrative law” ,George Washington University Law School, Public Law and Legal theory Paper No. 2012-115

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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.

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 ;

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

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

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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.

During Orleans Monarchy (1830-1870) particularly during the reign of Louis Phillips, France’s 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 1860-1908.

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.”

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

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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 Conseil’s 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 D’Etat 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

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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

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

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

15 ibid

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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.

16 http://www.shareyouressays.com/111383/administrative-law-as-opposed-to-rule-of-law-discussed17 Board of Education v Rice (1911)AC 17918 Local Government Board v Arlidge (1915) AC 120

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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 d’Etat which was considered to be a model for other countries.

(viii)Concrete Cases

(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

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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) Barel’s 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

(f) Fortune’s 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

19 Padfeild v Minister of Agriculture 1968 AC 99720 Liversidge v Anderson 1942 AC 206 :(1941) 3 All ER 33821 Ms. Ranjana Agnihotri and Others v Union of India Through Secy. Ministry of Home Affairs & Others 2013(11)ADJ22

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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 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

22 Re: Mehar Singh Saini, Chairman, HPSC and Ors (2011)1SCC(LS)42323 Additional District Magistrate, Jabalpur Vs. Shivakant Shukla AIR1976SC1207

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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 India- It is true that the establishment of an institution similar to Conseil d’Etat 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 d’Etat 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

(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;

24http://www.lawyersclubindia.com/articles/Administrative-law-in-India-In-need-of-reformation 4657.asp#.VNOs69LLe70

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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.

Bibliography

Books referred

15

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+ADMINISTRATIONS.pdf

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

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

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-of-reformation

Articles referred

Francesa Bignami “ Comparative Administrative law” ,George Washington University Law School, Public Law and Legal theory Paper

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