Project Report

Of
Administrative Law

Topic: Meaning and Nature of Administrative Law w.r.t.

Droit Administratif

Submitted to: Ms. Nidhi Submitted by: Abhishek Dhillon

Faculty of Administrative Law Class: B.A. LLB. (H)
UILS, PU Roll. No.: 06/16
Chandigarh. Section: A
 Acknowledgement

I would like to thank my teacher Ms. Nidhi who has given me this wonderful Meaning and
Nature of Administrative Law w.r.t. Droit Administratif which helped me lot in doing lot of
research. I’ve come to know about many new things due to this topic. I am really thankful to my
teacher, next I would like to thank my friends who helped me a lot in finalizing this wonderful
project.

Abhishek Dhillon
Definition

Administrative Law is the law relating to the administrative operation of government. It deals
with powers and duties of administrative authorities. One of the advances in the realm of law made
during the last two centuries was the establishment, recognition and enforcement of certain principles
and rules intended to govern the functions and powers of governmental authorities. Accordingly, the
principles and rules evolved to govern the functions and powers of governmental authorities are called
administrative law.

“Administrative Law should be regarded as the law relating to public administration, in the same
way as commercial law consists of the law relating to commerce or land law the law relating to land.”
Robson

“Administrative Law is a branch of public law which is concerned with the composition, powers,
duties, rights and liabilities of the carious organs of government which are engaged in administration.”
Wade and Philips

“Administrative Law is the law concerning the powers and procedures of administrative
agencies, including especially the law governing judicial review of administrative action.” K. C. Davis

“The subject of Administrative Law includes the study of (i) the institutions and administrative
processes, (ii) the principal sources of governmental actions may be examined, and where appropriate
redress be afforded, (iv) the public corporations, and (v) the administration of local government and the
general legal principles applying to local authorities.” Gardner

“Administrative Law deals with the structure, powers and functions of the organs of
administration, the limits of their powers, the methods and procedures followed by them in exercising
their powers and functions, the methods by which their powers are controlled including the legal
remedies available to a person against them when his rights are infringed by their operation.” Jain and
Jain

Relationship between Constitutional Law and Administrative Law

While delimiting the subject, a question is sometimes asked whether there is any distinction
between constitutional law and administrative law. There are two schools of thought in this respect.
According to one, there is no difference between the two, whereas according to the other, there is a
difference between them.
No difference between Constitutional Law and Administrative Law
According to the early English writers, there is no difference between constitutional law and
administrative law. Till recently, the subject of administrative law was dealt with and discussed in the
books of constitutional law and no separate and independent treatment was given to it. In many
definitions of administrative law it was included in constitutional law. Therefore, Keith observed: “It is
logically impossible to distinguish administrative law from constitutional law and all attempts to do so
are artificial.”

Difference between Constitutional Law and Administrative Law

Though in essence, constitutional law does not differ from administrative law in as much as both
are concerned with functions of government, both are a part of public law in the modern state. There is,
however, a distinction between the two. According to Holland, the constitutional law describes them in
motion. According to this view, the structure of legislature and executive comes within the sphere of
constitutional law while their functioning comes under the purview of administrative law. Maitland,
however, is not a supporter of this view, for in that case, powers and prerogatives would be relegated to
administrative law. Maitland’s view is that while constitutional law deals with structure and the broader
rules which regulate the functions, the details of the functions are left to administrative law. According
to Hood Philips: “Constitutional Law is concerned with the organisation and functions of the government
at rest whilst administrative law is concerned with those organisations and those functions of the
government in motion.” Robson, on the other hand, points out that whilst constitutional law emphasizes
individual rights, administrative law lays equal stress on public needs.

Dividing a line between Constitutional Law and Administrative Law

In the opinion of English authors, the distinction between constitutional law and administrative
law is one of degree, convenience and custom rather than that of logic and principle. It is not essential
and fundamental in character. According to Benjafield and Whitmore the dividing line between
constitutional law and administrative law is a matter of convenience because every student of
administrative law has to study some constitutional law.

Different position in the countries of written Constitution

In the countries which have written constitutions, the distinction between constitutional law
and administrative law is not so much blurred as in England. In such countries, Constitution is the source
of constitutional law while Constitution, statutes, statutory instruments, precedents and customs may
be the source of administrative law. Administrative law has become more articulate and definite as a
system in democratic countries which have a written Constitution. It has come to be recognized as a
branch of public law by itself distinct and separate from constitutional law.
Constitutional Law and Administrative Law in India
India has a written Constitution, which is the foundation of the legal system in the country. It
conditions and overrides all legislative and administrative action. The fact, however, remains that
administrative law has become today sui juris and is recognized as a separate independent branch of the
legal discipline though at times constitutional law and administrative law may overlap. As regards the
relationship between constitutional law and administrative law, the correct position may be said to be
that if one draws two circles of administrative law and constitutional law, at a certain place, they may
overlap and this area may be characterized as the ‘watershed’ in administrative law.

As regards the Indian position, one can include in the watershed the whole system of control
mechanism which has been embodied in the Constitution for the control of the actions of administrative
authorities, i.e. Articles 32, 226, 136, 227, 300 and 311. Moreover, in the area of watershed may also
come those administrative agencies which are provided by for by the Constitution itself e.g. Finance
Commission, Article 280; Inter-State Council, Article 263; Inter-State Water Dispute Authority, Article
202; Public Service Commission, Article 315; and Election Commission, Article 329. Moreover, the
constitutional limitations on delegation of powers to the administrative authorities and constitutional
provisions relating to Fundamental Rights which impose fetters on administrative action are also
included in the watershed. There is an important distinction between English Administrative Law and
Indian Administrative Law. While in England, an administrative action can be challenged as ultra vires
the statute under which it was performed, whereas in India, it can be challenged as ultra vires to the
Constitution as well. In India, an administrative action has to meet four tests:

(i) The action must have been taken in accordance with the Rules and Regulations.
(ii) The Rules and Regulations must conform to the relevant statute i.e. the Parent Act
(iii) The action, the Rules and Regulations and the Parent Act must conform to the
constitutional pattern.
(iv) If it happens to be a constitutional amendment, such an amendment must be in
conformity with the basic structure of the Constitution. The correct position in this
respect has been clarified by C.J. Pathak: “The range of judicial review recognized in the
superior judiciary in India is perhaps the widest and most extensive known to the world
of law. The power extends to examining the validity of even an amendment to the
Constitution, for now it has been repeatedly held that no constitutional amendment can
be sustained which violates the basic structure of the Constitution.”
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
(i) The position and liabilities of state officials.
(ii) The civil rights and liabilities of private individuals in their dealings with officials as
representatives of the State.
(iii) The procedure by which these rights and liabilities are enforced.

Dual judicature of 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 was between subject and
the state. An administrative authority or official is not subject to the jurisdiction of ordinary civil courts
exercising powers under 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.

Merits of this System

In France, the organ of the review of administrative decisions is itself a part of the
administration, as to work is undertaken by the Conseil d’ Etat, assisted since 1954 by the local
administrative Courts. In spite of, or because of 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.

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 a conflict between the ordinary courts and the administrative courts regarding
jurisdiction, the matter is decided by the Tribunal des conflits. 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 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:
(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 these courts
(5) The character of the substantive law which they apply.

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 officials – appointment, dismissal, status, salary
and duties etc.
2. Rules relating to the operation of the public services to meet the need of citizens.
3. Rules relating to administrative adjudication – if any injury is caused to a private citizen by the
administration, the matter have to be decided by the administrative courts. Conseil d’ Etat is the
highest administrative court, whose decision is final.

Features of Droit Administratif

A) Matters concerning state and administrative litigation fall within the jurisdiction of
administrative Courts and cannot be decided by the ordinary courts of the land.
B) In deciding matters concerning the state and administrative litigation, rules as developed by
the administrative courts are applied.
C) If there is conflict of jurisdiction between ordinary courts and administrative court, it is
decided by the tribunal des conflits.
D) Conseil d’ Etat is the supreme administrative court.