DR.

SHAKUNTALA MISRA NATIONAL REHABILITATION

UNIVERISTY

LUCKNOW

AN ASSIGNMENT ON

“Droit Administratif”

(UNDER THE SUPERVISION OF Prof. Gulab Rai )

Administrative Law

SUBMITTED To: SUBMITTED BY:

Prof. Mr. Gulab Rai Gaurav Shukla

Faculty of law B.com LL.B (Hons)*

DSMNRU,Lucknow 6th semester
 ACKNOWLEGEMENT

The completion of this Assignment could not have been possible without the participation
and assistance of so many people whose names may not all the be enumerated. Their
contribution are sincerely appreciated and gratefully acknowledged. However, I would like to
express my deep appreciation and indebtedness particularly to the following

Prof.Gulab Rai for her endless support, kind and understanding spirit during making of this
assignment.

To all relatives, friends and others who in one way or another shared their support, either
morally, financially and physically, thank you.

Above all, to the Great Almighty, the author of knowledge and wisdom, for his countless
love.

I thank you all.

Gaurav Shukla

3rd year Student

B.Com. LL.B(Hons.)
 Table of Contents

(i) Introduction
(ii) Meaning
(iii) History of Droit Administratif
(iv) Characteristics of the Droit Administratif
(v) According to Dicey
(vi) Conseil d’État
(vii) How it work
(viii) Conclusion
.
Introduction
In common and universally accepted usage, the concept of Administrative Law has come to mean the
whole body of laws relating to public administration. According to Barhthelemy “Administrative Law
is the sum-total of the principles according to which the activity of the services, other than judicial,
concerned with the execution of law is exercised. It is one of the two branches of Public Law, the
other being the Constitutional Law.” Constitutional Law lays down the organisation and powers of the
governmental machinery. In a broad sense, Administrative Law relates to the organisation, powers,
procedures, personnel, finance and responsibility of all public authorities. In a narrower sense, as the
Encyclopedia of Social Sciences records, it means the law of official powers and responsibility or the
law which determines the amount of discretion permitted to administrative offices and agencies. In the
context of the French system, the Administrative Law is taken to mean the law according to which
actions by the citizens against officials for wrongful acts committed in their official capacity are tried
not by ordinary courts of law but by special administrative courts manned by civil servants. Such a
view of French Droit Administratiff was formulated and explained by the English jurist A.V. Dicey.
As we have seeing from past there was constant see-saw struggle for power between two party. The
same was going on before the revolution 1789 in the French politics between the traditionalist and
Bonapartists (Who Supported the executive power even in judicial matters) and reformist parliaments
(who supported the jurisdiction of the ordinary courts). Droit Administratif can be defined as a body
of public law which determine the organisation and the duties of public administration, and regulates
the relation of the administration with the citizens of the state1. The Droit Administratif referred to a
system of administrative courts in France that ran parallel to the civil courts. The intentions behind
this system were to ease the civil courts from administrative matters while laying separate standards
for administrative disputes. In India, the adjudication of Administrative disputes has been discussed
by the judiciary and remains to be much debated. Apart from the Administrative tribunals, there are
parallel courts in India as Tribunals for various matters including Company disputes, Tax matters,
Railway Claims, Debt Recovery Claims and Army disputes. For the purpose of this article, the
authors have restricted themselves to the Administrative tribunals and the extent of their independence
from ordinary courts. The following paragraphs shall throw some light on the possibility of applying
the principle of Droit Administratif in India, as regards independence of administrative Tribunals, and
juxtapose it with the concept of Rule of Law as enshrined in the Indian Constitution.

Meaning
The French administrative law is known as Droit Administratif which means “A body of rules which
determine the organization, powers and duties of public administration and regulate the relation of
the administration with the citizen of the country”. The rules of continental European
administrative law exempting governmental agents from liability in other than
administrative tribunals 2

Droit Administrative does not represent the rules and principles enacted by Parliament. It contains the
rules developed by administrative courts. Napoleon Bonaparte was the founder of the Droit
administrative. It was he who established the Conseil d’Etat. He passed an ordinance depriving the
law courts of their jurisdiction on administrative matters and another ordinance that such matters
could be determined only by the Conseil d’Etat. Waline, the French jurist, propounds three basic
principles of Droit administrative:

1
I.P.Massey, Administrative law 17 (Eastern book Company, Lucknow 9th edn.,/2017).
2
https://www.merriam-webster.com/dictionary/droit%20administratif
 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 motu may be exercised
only within the ambit of law which protects individual liberties against administrative arbitrariness;

3. The existence of a specialized administrative jurisdiction;

One good result of this is that an independent body reviews every administrative action. The Conseil
d’Etat is composed of eminent civil servants, deals with a variety of matters like claim of 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. It has interfered
with administrative orders on the ground of error of law, lack of jurisdiction, irregularity of procedure
and detournement depouvior (misapplication of power). It has exercised its jurisdiction liberally3.

History of Droit Administratif

Droit Administratif refers to the existence of parallel courts to deal with matters of administration. In
the 16th Century, the Consul du Roi (King’s Court) gained predominance with its growing
jurisdiction taking cognisance of all cases where the government or its servants were involved. The
jurisdiction of this tribunal gave rise to some challenges with the jurisdiction of the civil courts. In the
17th century the Consul du Roi came to be the Conseil Prive’ (along the lines of the Privy Council in
Britain), which, as opposed to the civil courts (the Conseil Commun), had jurisdiction over appeals in
administrative matters. In this regard, the Conseil du Roi, the administrative court saw growing
importance in the French legal system, even more so than the two other tribunals, the Court of
Finance and the Judicial Court. After the Revolution, in 1799, Napoleon revived the Consul du Roi as
the Conseil d’ Etat. The Conseil d’Etat, in concurrence with the provision in the 1791 Constitution,
excluding from ordinary courts the jurisdiction to exercise administrative functions, was vested with
the jurisdiction to adjudicate administrative disputes and required its authorization for proceeding
against government agents370. The concept of Droit Administratif is in contradistinction to Dicey’s
‘Rule of Law’, where everybody in a State everybody shall be subjected to some common law and no
official irrespective of his status and authority shall be kept outside the purview of Rule of Law. To
Dicey, it seemed strange, that when the injured individual sought protection against the administration
he had to turn to an administrative body, the Conseil d'Etat, which was certainly closer to the
administration than the judicial courts. It was this fact which unfavourably impressed Dicey and was
visibly against this theory that the law be objective to all in each case371. Furthermore, the Conseil d’
Etat was apart from being the administrative body itself was the appellate authority for cases
pertaining to the government and its employees. Thus no further appeal lies with any authority for
such matters. Yet the administrative courts have justified the faith that was then reposed in them. This
system seems to have circumvented problems of state liability that Common Law jurisdictions faced.
The administrative courts, headed by the Conseil d'Etat, positively or normatively considered that the
State had acted honestly and an executive agency would be held liable to a citizen for any harm
caused as a consequence of a greater risk being imposed upon him by an executive action373. This
conveniently sidestepped the problem of a citizen under common law approaching ordinary courts

3
http://persmin.gov.in/otraining/UNDPProject/undp_modules/Administrative%20Law%20N%20DLM.pdf
visited on 17/02/17
challenging state action and the subsequent possibility of application of the “King can do no wrong”
doctrine4.

Characteristics of the Droit Administratif

1) As mentioned in my previous post, it is independent of the French Courts.

2) 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, The Conseil is a very important administrative tribunal as it acts as the Court of Appeal for
all other administrative tribunals regardless if they are within or not within the Conseil's control.

Should the complaint 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.

3) If upon trial the administrative body is found to have acted ultra vires, then the tribunal may nullify
their actions.

4) All decisions arrived by the administrative tribunals are subject to review by the Conseil on points
of law.

5) Administrative tribunals also supervises 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 not5.

Despite the obvious merits of the French administrative law system, Prof. Dicey was of the opinion
that there was no rule of law in France nor was the system so satisfactory as it was in England. He
believed that the review of administrative action is better administered in England than in France.

According to Dicey
The system of Droit Administratif according to Dicey, is based on the following two ordinary
principles which are alien to English law—

Firstly, that the government and every servant of the government possess, 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 considerations which fix the legal rights and duties of one citizen

4
http://ijldai.thelawbrigade.com/wp-content/uploads/2015/09/19.pdf
5
http://lawfullylawyered.blogspot.in/2013/01/characteristics-of-droit-administratif.html
towards another. 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.

Secondly, that the government and its officials should be independent of and free from the
jurisdiction of ordinary courts.

It was on the basis of these two principles that Dicey observed that Droit Administratif is opposed to
rule of law and, therefore, administrative law is alien to English system. But this conclusion of Dicey
was misconceived. Droit Administratif, that is, administrative law was as much there in England as it
was in France but with a difference that the French Droit Administratif was based on a system, which
was unknown to English law. In his later days after examining the things closely, Dicey seems to have
perceptibly modified his stand. Despite its overall superiority, the French administrative law cannot
be characterized with perfection. Its glories have been marked by the persistent slowness in the
judicial reviews at the administrative courts and by the difficulties of ensuring the execution of its
last judgment. Moreover, judicial control is the only one method of controlling administrative action
in French administrative law, whereas, in England, a vigilant public opinion, a watchful Parliament, a
self-disciplined civil service and the jurisdiction of administrative process serve as the additional
modes of control over administrative action. By contrast, it has to be conceded that the French
system still excels its counterpart in the common law countries of the world6.

These features of the Administrative Law of France were, according to Dicey, sharply different
from the Br. system of the Rule of Law, which stood for:

(i) Predominance of regular law on a

(ii) Equality of all the citizens, whether officials or non-officials before the ordinary law of

the land as administered by ordinary courts. It repudiates the system of special

administrative courts; and

(iii) Primacy of the rights of the individuals as defined and enforced by ordinary courts of the

land.

The French System of Administrative Law relates to the following:

(i) Position and responsibility of the Government officials.

(ii) Relations between the citizens and the officials of the state, their rights and duties.

6
http://persmin.gov.in/otraining/UNDPProject/undp_modules/Administrative%20Law%20N%20DLM.pdf
(iii) The method through which the Government officials can exercise their rights and perform their

duties and the people may know as to what and to which extent these rights and duties are going to

influence their behaviour.

(iv) The officials of the state are governed by administrative law as applied by administrative courts.

The ordinary people are beyond the scope of Administrative Law.

(v) In case of any dispute regarding the jurisdiction of Ordinary and Administrative courts, the Court

of Conflicts has the power to resolve the dispute. The Council of State from the side of the

administrative courts and the Court of Cassation from the side of the ordinary courts, send three

representations each to the Court of Conflicts. The Court of Conflicts takes the help of three other

members for resolving the disputes. The Minister of Justice is the President of this court.

(vi) Administrative courts decide cases involving indiscipline or misconduct on the part of officials.

Thus in France, a distinction is made between the officials and ordinary citizens in respect of the

securing of their rights and duties. However, this does not involve any discrimination between

ordinary citizens and officials in the sphere of administration of justice.

Conseil d’État
The Conseil d’État is the Government’s advisor in matters concerning the preparation of draft
legislation, ordinances and certain decrees7. The Conseil d’État, (French: “Council of State”),
highest court in France for issues and cases involving public administration. Its origin dates back to
1302, though it was extensively reorganized under Napoleon and was given further powers in 1872. It
has long had the responsibility of deciding or advising on state issues and legislative measures
submitted to it by the sovereign or, later, by the president, the cabinet, or the parliament. It is
the court in which French citizens may bring claims against the administration, though usually since
1953 such claims originate in the regional administrative tribunals of first instance, and appeals are
taken to the Conseil d’État. Progressively since 1987 certain appeals have been dealt with by seven
new administrative appeal courts based in major cities. These courts are controlled by the Conseil
d’État8.

 How it work
Historically, advising the Government has been the primary mission of the Conseil d’État. The
Conseil d’État’s opinion is mandatory for all draft legislative bills and ordinances, but also for certain

7
http://english.conseil-etat.fr/content/download/32954/285585/version/1/file/CE_EnBrefEnglish.pdf
8
https://www.britannica.com/topic/Conseil-dEtat
proposed decrees. Either house of parliament can seek the Conseil d’État’s opinion in the drafting of
any legislative bill. The Conseil d’État examines any proposed text to ensure that it complies with the
law, and may also pass an opinion on the relevance of the proposed measures as regards the desired
objectives. Texts are examined by one of five different administrative sections depending on their
respective field of competence. More complex proposals, especially the majority of draft bills and
ordinances, are examined by the General Assembly, the Conseil d’État’s highest consultative level9.

Conclusion

9
http://english.conseil-etat.fr/content/download/32954/285585/version/1/file/CE_EnBrefEnglish.pdf
As a conclusion, we could say that the French Droit Administratif gives significant protection to an
individual against any unlawful action done by administrative bodies. Scholars have said that the DA
is better than the CL as it gives better protection to an individual.