Theory of Droit Administratif and Conseil d'Etat

Meaning of Droit Administratif

Droit Administratif is a branch of law which determines the organisation,
powers, and duties of public administration. According to Dicey, Droit Administratif
is that portion of French Law which determines:
a) The position and liabilities of state officials;
b) The civil rights and liabilities of private individuals in their dealings with
officials as representatives of the state; and
c) The procedure by which these rights and liabilities are enforced.
d) Dual Judicature in France: Civil and Administrative Courts. —Under the
French Legal System, known as Droit Administratif, there are two types of
laws and two sets of Courts independent from each other. The ordinary courts
administer the ordinary civil law as between subjects and subjects. The
administrative courts administer the law as between subject and the state. An
administrative authority or official is not subject to the jurisdiction of ordinary
civil courts exercising powers under the civil law in disputes arising between
the private individuals. All claims and disputes in which administrative
authorities or officials are parties do not come within the scope of the
jurisdiction of ordinary courts and they are to be dealt with and decided by
administrative tribunals headed by Conseil d' Etat.
Droit Administratif is a very old system. It was regularly put into practice by
Napoleon in the 18th century. Napoleon favoured freedom for the administration and
also favoured reforms. He wanted an institution to give relief to the people against the
excesses of administration. It was therefore, that in 1799 Conseil d'Etat was
established. The main aim of such an institution was to resolve difficulties which
might arise in the cause of the administration. But with change in time, it started
exercising judicial powers in matters involving administration. The position is that in
all matters involving administration the jurisdiction of Conseil d' Etat is final. It
receives direct complaints from the citizens.

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Merits of the System
In France the organ of the review of administrative decisions is itself a part of
the administration, as the work is undertaken by the Conseil d' Etat, assisted since
1954 by the local administrative Courts.2 In spite of, or because of3 this intimate link
between the supervising or reviewing tribunals and the administration, the onus of
proof in the French system is always on the administration. The administrative
agencies must be prepared to justify their acts. "Paradoxically" observed Ridley and
Blondel, "it (Conseil d' Etat) was able to scrutinise administrative decisions more
thoroughly than the ordinary courts ever had done".

The Composition and Working of Conseil d'Etat

Conseil d' Etat consists of a body of men who are on the one side the
confidential advisors of the government and on the other decide the cases of the
subjects against the administration. In the latter case, they act as uncommitted judges
and if necessary, condemn the executive act. This paradox has made the Conseil d'
Etat, an efficacious institution in France.
If there is conflict between the ordinary courts and the administrative Courts
regarding jurisdiction the matter is decided by the Tribunal in conflict. This is a
special tribunal which consists of an equal number of ordinary and administrative
judges. It is presided over by the minister of justice.
The main functions of the Conseil d'Etat from the beginning were planning
and advising. It advises and plans executive business. The difficulties which occur in
the course of administration are resolved by the Conseil d' Etat.

Factors which have successfully subjected the administration in France to the

Rule of Law through Droit Administratif with Conseil d'Etat at the apex are
following:
(1) The composition and function of the Conseil d' Etat itself;
(2) The flexibility of its case law;
(3) The simplicity of remedies available before the administrative courts;
(4) The special procedure evolved by those courts; and
(5) The character of the substantive law which they apply.

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Rules of Droit Administratif in France, Droit Administratif consists of rules
developed by the judges of administrative courts. There are three series of rules
included in Droit Administratif:
(1) Rules relating to administrative authorities and official appointment,
dismissal, status, salary and duties etc.
(2) Rules relating to the operation of public services to meet the needs of
citizens.
(3) Rules relating to administrative adjudication—if any injury is caused
to a private citizen by the administration, the matter has to be decided
by the administrative courts. Conseil" Etat is the highest administrative
Court, whose decision is final.

Characteristic Features of Droit Administratif —The following are the

characteristic features of the Droit Administratif in France:
(1) Matters concerning state and administrative litigation fall within the
jurisdiction of administrative Courts and cannot be decided by the
ordinary courts of the land.
(2) In deciding matters concerning the state and administrative litigation,
rules as developed by the administrative courts are applied.
(3) If there is conflict of jurisdiction between ordinary courts and
administrative court, it is decided by the Tribunal des conflicts.
(4) Conseil d’Etat is the supreme administrative court.

Basic Principles of Droit Administratif:

The power of administration to act ‘suo motu’ and to impose directly on the
subject the duty to obey its decision.
The power of administration to take decisions and to execute them ‘suo motu’
may be exercised only within the scope of the law which protects individual liberties
against administrative arbitrariness.
The existence of a specialised administrative jurisdiction; One speaks of
administrative jurisdiction because their decision relates to the superior control of the
Conseil d’Etat either by means of appeal.

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 This is a principle laid down by the Conseil d’Etat that forms administrative
decisions. There is a right of appeal to the Conseil d’Etat even where the law is silent
or if it provides that the tribunals are the final authority.
One good result of this is that an independent body reviews every
administrative action. The Conseil d’Etat composed of eminent civil servants deals
with a variety of matters like claim for damages for wrongful acts of government
servants, income tax, pensions disputed elections, personal claims of civil servants
against the state for wrongful dismissal or suspension and so on.

Similarities Between the English Rule of Law and Droit Administratif of France:
The Droit Administratif of France resembles (have a similarity to) the English
rule of law, because both are the result of ‘Case law’ or judge made law.
The Conseil d’Etat of France has been converted from an executive into a
judicial or quasi-judicial body by the gradual (not rapid) process of its judicial from
and its executive function. In England, the judicial system has grown as a result of
transfer to parts of the King’s council of judicial powers originally exercised by the
‘King-in-council. However, the parliament destroyed the arbitrary authority of courts
like the Star Chamber and of the council. In France, Droit Administratif and
administrative tribunals were not only tolerated (sustain) but progressively thrived
(prosper) and have come to stay.
In England, the crown and its servants were something beyond and above the
ordinary law. Such a concept of administration thrived in France.

Differences Between the English Rule of Law and Droit Administration

The following points of differences have been mentioned:
Droit Administratif is not the law of a class and it is a distinct body of law
which may affect and does affect the rights of French citizens. In England, there are
laws, customs or regulations which determine the positions of civil servants of the
Head of the State. These laws, customs and regulations constitute the law of a class.
The powers exercisable by the civil servants under these laws, customs and
regulations must be exercised in accordance with ordinary common law principle.

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 If an official in England exceeds (be more) the authority given to him, he
incurs (suffer) the common law responsibility for his wrongful act and he can not
plead in his defence strict obedience to official orders and he becomes amenable
(responsible to law) to the authority of ordinary courts for the tort he has committed.
But in France the government and its servants exercise wide discretionary powers
which are not under the control of any court. The executive or its servant cannot be
made amenable to the jurisdiction of any tribunal for an act of the state.

Reasons of Success of Droit Administratif:

Droit Administratif has been quite successful in subjecting the rule of law. This
success may be attributed to a combination of the following factors:
-The composition and functions of the Droit Administratif itself.
-The flexibility of its ‘case law’.
-The simplicity of the remedies available before the administrative courts.
-The special procedure evaluated (natural process) by those courts.
-The character of the substantive law which they apply.

Adoption and Working of Droit Administratif in India

Administrative law was in existence in India even in ancient times. Under the
Mauryas and Guptas, several centuries before Christ, it was well organised and
centralised. The rule of Dharma was observed by the kings and administrators and
nobody claimed any exemption from it. The basic principles of natural justice and fair
play were followed by the kings and officers as the administration could be run only
on those principles accepted by Dharma, which was an even wider word than ‘Rule of
Law’ or ‘Due process of Law’. Yet, there was no administrative law in existence in
the modern sense. With the establishment of the East India Company and the advent
of the British Rule in India, the powers of the government had increased. Many Acts,
statutes and legislations were passed by the British government, regulating public
safety, health, morality, transport and labour relations. The practice of granting
administrative licences began with the State Carriage Act, 1861. The first public
corporation was established under the Bombay Port Trust Act, 1879. Delegated
legislation was accepted by the Northern India Canal and Drainage Act, 1873 and the

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Opium Act, 1878. Proper and effective steps were taken to regulate the trade and
traffic in explosives by the Indian Explosives Act, 1884. In many statutes, provisions
were made regarding holding of permits and licences and for the settlement of
disputes by the administrative authorities and tribunals. In the twentieth century,
social and economic policies of the government had significant impact on private
rights of citizens; e.g., housing, employment, planning, education, health, service,
pension, manufacture of goods, etc. Traditional legislative and judicial system could
not effectively solve these problems. It resulted into increase in delegated legislation
as well as tribunalisation. Administrative law thus became a living subject. During the
Second World War, the executive powers tremendously increased. The Defence of
India Act, 1939 and the Rules made there under conferred ample powers on the
executive to interfere with life, liberty and property of an individual with little or no
judicial control over them. In addition to this, the government issued many orders and
ordinances covering several matters by way of administrative instructions. Since
Independence, the activities and the functions of the government have further
increased. Under the Industrial Disputes Act, 1947, the Minimum Wages Act, 1948,
the Factories Act, 1948 and the Employees’ State Insurance Act, 1948, important
social security measures have been taken for those employed in industries. The
philosophy of a welfare state has been specifically embodied in the Constitution of
India. In the constitution itself provisions are made to secure to all citizens social,
economic and political justice, equality of status and opportunity. The ownership and
control of material resources of the society.

Merits of Droit Administratif

Droit Administratif was able to provide expeditious and inexpensive relief and
better protection to the citizens against administrative acts or omissions by the
common legal system. The following are the advantages of Droit Administratif: -
(i)Flexibility- Administrative adjudication is not restrained by rigid rules of procedure
and jargons of judiciary. It can remain in tune with varying phases of social and
economic life.

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(ii) Adequate Justice- Administrative adjudication is the most effective way for
providing fair justice to the individuals. The need of modern welfare society cannot be
adequately considered in ordinary law because of the concern about aspects of law.
(iii) Less Expensive- Administrative justice ensures cheap & quick justice. The
procedure of ordinary law is cumbersome and litigation may be costly which may
include court fees, hefty fees for engaging lawyers and incidental charges.
(iv) The system also provides relief to courts, which are otherwise overburdened with
ordinary suits.

Demerits of Droit Administratif

In the views of Dicey, there was no Rule of Law in France due to Droit
Administratif. The Govt. and its officials are prerogative against the private citizens.
They have special rights and privileges. These rights and privileges are determined on
the principles different from the consideration that fixes the legal rights and duties of
the ordinary citizens. The Govt. Officials are also free from the jurisdiction of
ordinary courts. Also, since the administrative courts are not ordinary legal courts,
lack of legal expertise was pointed out as another demerit. Since many of the
members of the administrative courts were civil servants with little or no legal
background, they may lack requisite legal expertise to adjudicate disputes. Since
many of the members of the administrative court are the same as that of Govt.
officials, Partiality was considered as another demerit of the system. Also, the
transferring of power of adjudication to administrative courts from ordinary courts is
considered by some jurists as violation of separation of powers and rule of law.

Conclusion
If the Droit Administratif did not adequately protect the individuals as against
the state, it would be a serious criticism, but it was not so. The fact is that this system
was able to provide expeditious and in-expensive relief and better protection to the
citizens against administrative acts or omissions than the common law system. The
early common criticism of Droit Administratif was that it cannot protect the private
citizen from the excesses of the administration. However, later researches have shown

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that no single institution had done so much for the protection of private citizens
against the excesses of administration as has been done by the Conseil d' Etat.
In the end it may be concluded that the study of Administrative Law is of great
importance in every country of the world. As regards India, it is of great significance
because of the proclaimed objectives of the Indian polity to build up a socialistic
pattern of society. The objective of establishing a socialistic society has generated
administrative process and hence administrative law at a large scale. Administration
in India is bound to expand further and at a quick pace. A strong drive for rapid
expansion has its own dangers. A developing country like India where the roots of
democracy are not deep, a strong bureaucracy may have the tendency to ride
rough-shod over the rights of people. If exercised properly, the vast powers of the
administration may lead to the welfare state; if abused they may lead to administrative
despotism and a totalitarian state. The study and development of administrative law
becomes inevitable as administrative law is an instrument of the control of
administrative operation of the government interested in social welfare.