TITLE

COMPARATIVE ANALYSIS OF DROIT ADMINISTRATIF AND

INDIAN ADMINISTRATIVE LAW: UNRAVELING LEGAL
FRAMEWORKS AND IMPLICATIONS

SUBJECT
ADMINISTRATIVE LAW

SUBMITTED BY: Siyaa Sujith

SUBMITTED TO: Prof. Rudregouda HM STUDENT SIGNATURE
CLASS: 3rd year BBA.LLB B section
REGISTRATION NUMBER: 42321341096 FACULTY SIGNATURE
Abstract:

This research paper delves into a comparative analysis of the legal frameworks governing
administrative law in France, known as "Droit Administratif," and India's corresponding legal
structure. The study aims to unravel the historical evolution, doctrinal foundations, and practical
implications of administrative law in both jurisdictions.

Keywords- droit administrative, conseil d’etat, administrative tribunals, rule of law, separation of
powers.

Introduction:

Administrative law has become very necessary in the developed society, the relationship of the
administrative authorities and the people have become very complex. The complexity of society
has evolved over time, posing new challenges to administration. A comparative study reveals
stark differences between the duties of administration in ancient times and the modern era. In
ancient societies, the state's functions were limited to protection from foreign invasion, taxation,
and maintaining internal peace and order. However, it's important to note that administrative law
existed even before the 20th century, albeit with fewer responsibilities and a simpler framework.
In India, the roots of administrative law can be traced back to the well-structured administrations
of the Mauryas and Guptas, dating back several centuries before the common era. This tradition
continued through the administrative systems of the Mughals and the East India Company, which
served as the precursor to the modern administrative framework. However, in contemporary
society, the functions of the state have expanded significantly. The modern state is now seen as
responsible for social welfare, leading to its involvement in virtually every aspect of societal
activity. This expansion of state functions has ushered in an administrative age, giving rise to the
era of administrative law.

In France, administrative law deals with claims against government officials' misconduct, tried in
specialized administrative courts. Over the past century, French administrative law evolved to
protect individuals from arbitrary actions by administrative authorities and extend control by
administrative courts. Initially, during the First Empire, judicial courts were reluctant to
challenge administrative actions, but by 1800, they began refusing to enforce fines for certain
violations. This trend continued, with judges gaining independence, even refusing to enforce
fines for royal ordinances during the Restoration period. Over time, presidential ordinances also
came under scrutiny for illegality by both administrative and judicial courts. This judicial power
serves as a corrective mechanism in the French administrative system, although its use has
decreased due to the expanded role of administrative courts.
This paper aims to identify similarities, differences, and implications of these legal systems,
exploring their historical evolution, institutional structures, and judicial review mechanisms.
Additionally, the research aims to assess the effectiveness of administrative law in safeguarding
individual rights, ensuring government accountability, and promoting good governance in France
and India.
Historical background
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 cognizance of all cases where the government or its servants were
involved. In the 17th century the conseil ‘Roi came into existence which was along the same line
as the privy council in the Britain, which had jurisdiction over appeals in administrative matters.
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 agents.1
The concept of Droit Administratif is opposite 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 case2. Apart from being an administrative body the
consiel d’Etat was also the appellte authority for actions related to the government and its
employees. This meant that the Conseil d’Etat was the final arboter for such administrative and
employment matters pertaining to the Government. No further appeals could be made to any
higher authority after the rulings of the Conseil d’Etat on these issues.3
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
action4. This conveniently sidestepped the problem of a citizen under common law approaching
ordinary courts challenging state action and the subsequent possibility of application of the
“King can do no wrong” doctrine.
Evolution of Indian administrative Law

1
C.Sumner Lobingier, “Administrative Law and Droit Administratif: A Comparative Study with an Instructive Model”
Pennsylvania Law Review, 1942, pg 36-58
2
Edwin Borchard, Edwin, "French Administrative Law" (1933). Faculty Scholarship Series. Paper 3445
3
George D. Brown. "DeGaulle's Republic and the Rule of Law: Judicial Review and the Conseil d'Etat." Boston
University Law Review 46, (1966): 462-492
4
3 SPYRIDON FLOGAITIS, ADMINISTRATIVE LAW ET DROIT ADMINISTRATIF, in J.F. Garner, Administrative Law, The
American Journal of Comparative Law, Vol. 36, No. 3 (Summer, 1988), pp. 565-567
Indian administrative law has its origins in ancient Indian dynasties like the Mauryas and Guptas
which had centralized structures guided by the ethical doctrine of 'dharma'. Dharma emphasized
fair governance upholding principles of natural justice, albeit without formal laws as understood
today. This was followed by suppressive colonial rule under the East India Company from 1858-
1947 which prioritized control and coercion over native welfare. Post-independence, India
embraced an egalitarian constitution enshrining a social welfare state philosophy and extensive
socioeconomic legislation around labor rights and social security.

During ancient pre-colonial times, kings bore duties like safeguarding territorial sovereignty, tax
collection and ensuring peace predicated on ethics of dharma which surpassed even modern legal
standards around due process and rule of law. The advent of British imperialism, however,
oriented the Indian administration towards serving colonial interests rather than native well-
being. The steel frame of coercive governance expanded state power via permits, licenses and
executive dispute resolution while providing minimal judiciary oversight, functioning akin to a
police state.

India broke away from this suppressive apparatus by embedding lofty ideals of pluralism,
equality and communal justice in the constitution adopted by the democratic republic in 1950. A
slew of legislation around factory safety, minimum wages and social security aimed to distribute
resources more equitably. A 1950s Supreme Court study revealed over 115 administrative law
cases out of 250 total cases, showing the rapid expansion of regulatory governance. Where
ancient Indian administration delegated authority based on duty-bound ethical leadership and the
British ruthlessly expanded state power for colonial objectives, post-independence priorities
were decisively oriented towards crafting regulation upholding welfare, representation and
empowerment of the masses from the grassroots.

Legal frameworks:
France
"Droit administratif has not been put into a strait-jacket of codification as has private law. This
circumstance has had the most fortunate effects permitting constant adaptation to new necessities
of life. "5 It is largely a judge-made law, and by its nature it almost begs for a discussion of the
role of stare decisis in its development. Certainly the doctrine of precedent has not petrified
French administrative law. Its creative force has remained flexible and dynamic, as is
demonstrated, for instance, by the continuous development of the concept of public service or of
the state's absolute liability for risk. The tendency of the Council of State to hold the state liable
for activities abnormally dangerous, irrespective of fault, is based on the assumption that "he
who suffers an exceptional loss through the functioning of the governmental machine is entitled

5
Waline, Trajte Elementaire de Droit Administratif 292-3 (6th ed. 1951) ; id.a.t21 (Awiex,1951)
to have his loss repaired at the expense of the community in general. The very functioning of the
service creates a risk which must be borne by the public equally.6
French courts cannot review the constitutionality of laws passed by the legislature. Because of
this, the Council of State plays a key role in protecting individual rights and freedoms when it
reviews administrative acts. The Council can nullify these acts if they are arbitrary, excessively
powerful, or have the wrong motives. This protects people from unfair treatment by the
executive branch.
There are, however, two major weaknesses in this protection. First, a very slow review procedure
has been caused by the great number of appeals. The establishment of new Tribuneaux
Administratifs vested with general, original jurisdiction in administrative law cases might
alleviate this situation. Secondly, an appeal generally has no suspensive effect upon the acts
attacked.7 This may seriously impair the value of the protection afforded by appeal.
India
The Indian Constitution is the foremost source of administrative law in India, laying down
provisions for administrative tribunals and executive power delegation. It is considered the
supreme law that upholds India as a leading democracy. Additionally, the legislature enacts
statutory Acts which enables much of the administrative rule-making. Beyond this, the executive
themselves shape administrative law through ordinances, notifications, directions and office
circulars that provide legal frameworks for executive agencies to discharge duties and regulate
local governments. Such executive quasi-legislation does not require full Parliament approval.
Finally, judicial decisions of higher courts such as the Supreme Court and various High Courts
also impact administrative law as binding precedents. Verdicts and interpretations create
jurisprudential standards which administrative authorities must abide by. Together, the
Constitution, statutes, delegated legislation and case laws provide a robust foundation for
administrative law allowing governance consistent with rule of law and separation of powers
between the executive, legislative and judicial wings. The combination of positive law enshrined
in enactments as well as common law principles molded by higher judiciary rulings enables
India's complex yet vibrant system of public administrative law.
French administrative law, characterized by judge-made principles and the absence of
constitutionality reviews, emphasizes strict state liability and executive accountability through
the Council of State's nullification of executive excess. In contrast, Indian administrative law
balances executive powers through a mix of constitutional provisions, parliamentary statutes, and
judicial precedents, ensuring fairness and legality standards. While both systems aim to uphold
state accountability and individual rights, delays and non-suspensive appeals in India weaken
protective measures.

6
Street, Governmental Liability 66-7 (1953).
7
3. See Waline, op. cit. supra note 21, at 158, 424; Laubadere, Manuel Administratif 71-2 (1946)
Rule of Law and Separation of Powers:
In France, the Rule of Law is understood as the principle that legal relations among individuals
and between individuals and the state are governed by legal rules rather than force. This principle
also entails that the state, its government, and administration are subject to the rule of law, just
like individuals, ensuring that individuals have rights that are prior and superior to those of the
state and must be respected by the state.

The Rule of Law in France consists of two essential aspects. The first aspect involves
recognizing certain rights belonging to citizens and ensuring that these rights are guaranteed and
effectively sanctioned. This aspect is considered indispensable and forms the foundation of the
Rule of Law in France.

The second aspect of the Rule of Law in France involves the means available to citizens to have
their rights respected. This includes the legal structure of administrative parts, administrative
litigation, and the liability of public power, which have been constructed with prudence. The
administrative judge bases decisions on principles that are applied like written laws, thereby
conferring them with the value of written laws.

Furthermore, the independence of magistrates in France has been safeguarded since 1789,
ensuring that they are not threatened by the legislative power or political parties. The Conseil
Superieur de la Magistrature, an independent organ, oversees the promotion of magistrates,
contributing to the maintenance of judicial independence.

In terms of individual rights, France recognizes the importance of individual rights as an

essential principle of the Rule of Law. These rights are declared by the constitution, laws, or
jurisprudence, and are considered fundamental to the status of French citizens.
Separation of Powers:
France
Even though France is credited with giving origin to the doctrine of separation of powers, it
recognizes the separation of powers in its Constitution in a flexible manner.8 Article 1 and Article
2 of the document formulate the legislative branch separate from the executive branch. 9 An
important feature that ensures separation of powers is its dual court system. France has one kind
of court that deals with all the civil matters and another kind which deals with administrative
matters.

8
Mollers, Christoph (2013), ‘The Three Branches: A Comparative Model of Separation of Powers’, Oxford: Oxford
University Press, pp. 3, 10.
9
The French Constitution, Adopted by the Referendum of September 28, 1958 and Promulgated on October 4, 1958.
The French administration also consists of three independent organs viz. the legislature, the
executive and the judiciary.10 The legislature makes the laws. The executive branch implements
these laws. However, the executive may also exercise veto to prevent a particular law from being
passed. This is a mechanism to keep a check on the legislature.11 Further, the Judiciary too has the
power to determine the constitutionality of the laws passed by the legislature.12 The legislative
branch also has the power to remove a president or judge if they aren’t doing the duties of their
job right. The executive branch chooses the judges and the legislative branch approves the
executive branch’s choice.13

India:
From being lassies-faire, non-interventionist and minimal to becoming what it is today i.e. welfare
state, participative and socialist, India has experienced a drastic change in the role of the State14.
The State, today assumes a variety of roles such as that of a protector, arbitrator, provider and
controller. 15
This means that the State today has more functions to perform than it did before. Due to this ever-
increasing number of functions, the boundaries of demarcation drawn that divide the powers and
functions of the three organs, are not as clear and prominent as required by the pure doctrine.

As mentioned before, the Indian administration follows the separation of functions rather than the
separation of powers in India, thereby not sticking to the doctrine strictly.

Administrative discretion And judicial review

France

Since 1872, The Conseild´Etat (CE) passes judgment in its capacity as an independent
administrative court. The challenge ground contrôle de motifs and the unwritten general
principles of law (principesgeneraux du droit) are significant.

The grounds for appeal (ouvertures) are the following: – incompetence; vice de forme;
détournement de pouvoir; violation de la loi. The last ground, violation de la loi, is a
residual category, which includes both the principles généraux du droit and the contrôle des
motifs.

10
Ibid 8
11
Commentary: Jain M.P & S.N Jain, “Principles of Administrative Law”, Wadhwa & Company Nagpur, 2007,
12
Ibid
13
Ibid
14
Bakshi, P.M., ‘The Constitution of India’, Universal Law Publishing Co.Pvt. Ltd., 2005
15
Ibid
The ground “contrôle des motifs” implies (i) an assessment of whether the fact has been
correctly established; if held not to have been established correctly, there is erreur de fait;
(ii) testing the correct interpretation of legal provisions; if incorrectly interpreted, there
is erreur de droit, and (iii) testing the qualification juridique des faits, legal qualification of
the facts. Testing the qualification includes both the interpretation of vague legal terms and
the exercise of discretionary powers.

In particular as regards the control of the “pouvoir discretionaire“, the marginal testing
ground developed by the CE, “erreur manifested´appreciation” (contrôle minimum), is
important. In certain cases, the CE employs a more extensive test. For instance, in the area
of expropriation, the principle of proportionality plays a role. In order to expropriate, a
déclarationd´utilité publique is required.

Because of the expression “excessifs”, this test may be likened to the English
unreasonableness test. There is also the cost-benefit balance to be analyzed by the C.E.

In France, the judicial review of administrative discretion plays a significant role in ensuring the
legality and fairness of administrative decisions. Administrative discretion refers to the authority
granted to administrative bodies to make decisions within a certain legal framework, often
involving complex social, economic, or political considerations.

The French system of administrative law provides for judicial review of administrative discretion
through the administrative courts, which have the authority to review the legality and validity of
administrative decisions. These courts, such as the Council of State (Conseil d'État), have the
power to annul administrative acts that are found to be unlawful, disproportionate, or in violation
of fundamental rights.

The principle of legality is a key aspect of judicial review of administrative discretion in France.
This principle requires that administrative decisions be based on a legal foundation and comply
with the law. The courts ensure that administrative bodies do not exceed their powers or act
arbitrarily in their decision-making process.

Furthermore, the French administrative courts also review the reasoning behind administrative
decisions to ensure that they are rational and justified. This includes examining the factual and
legal basis for the decision, as well as assessing whether the decision is proportionate to the
objectives pursued.

India:
Discretionary powers conferred on the administration are of different types. They may range
from simple ministerial functions like maintenance of births and deaths register to powers which
seriously affect the rights of on individual, e.g. acquisition of property, regulation of trade,
industry or business, investigation, seizure, confiscation and destruction of property, detention of
a person on subjective satisfaction of an executive authority and the like.
As a general rule, it is accepted that courts have no power to interfere with the actions taken by
administrative authorities in exercise of discretionary powers. In Small v. Moss, the US Supreme
Court observed, “Into that field (of administrative discretion) the courts may not enter.”
In India also, the same principle is accepted and in a number of cases, the Supreme Court has
held that courts have no power to interfere with the orders passed by the administrative
authorities in exercise of discretionary powers.
This does not, however, means that there is no control over the discretion of the administration.
As indicated above, the administration possesses vast discretionary powers and if complete and
absolute freedom is given to it, it will lead to arbitrary exercise of power. The wider the
discretion the greater is the possibility of its abuse. As it is rightly said, “every power tends to
corrupt and absolute power tends to corrupt absolutely”. All powers have legal limits. The wider
the power, the greater the need for the restraint in its exercise. There must be control over
discretionary powers of the administration so that there will be a “government of laws and not of
men”. It is not only the power but the duty of the courts to see that discretionary powers
conferred on the administration may not be abused and the administration should exercise them
properly, responsibly and with a view to doing what is best in the public interest.
Grounds
While exercising power of judicial review, the court does not exercise appellate powers. It is not
intended to take away from administrative authorities the powers and discretion properly vested
in them by law and to substitute courts as the bodies making the decisions. Judicial review is a
protection and not a weapon. In India, the courts will interfere with the discretionary powers
exercised by the administration in the following circumstances:
1. Failure to exercise discretion
2. Excess or abuse of discretion
Both France and India employ judicial review mechanisms to oversee administrative discretion,
ensuring legality and fairness in decision-making. In France, the Conseil d'État scrutinizes
administrative acts for adherence to legal principles, including the "contrôle des motifs" and
"principes généraux du droit." This entails assessing factual accuracy, legal interpretation, and
proportionality, particularly evident in cases like expropriation. Similarly, India recognizes the
need for judicial oversight to prevent arbitrary exercise of administrative power. While courts
generally refrain from intervening in discretionary decisions, they intervene if there's a failure to
exercise discretion or if discretion is abused or exceeded. This demonstrates a shared
commitment to maintaining a balance between administrative autonomy and ensuring
accountability and legality in decision-making processes.

Conclusion:
In conclusion, the comparative analysis of "Droit Administratif" in France and Indian
Administrative Law highlights significant differences and similarities in their historical
evolution, legal frameworks, and mechanisms for judicial review.
In France, the development of "Droit Administratif" has been characterized by a gradual
evolution of judicial principles, with the Conseil d'État playing a central role in ensuring
administrative legality and fairness. The French system emphasizes strict state liability and
executive accountability, with administrative courts scrutinizing acts for adherence to legal
principles and ensuring proportionality.
On the other hand, Indian Administrative Law has its roots in ancient governance structures,
transitioning from colonial-era coercion to post-independence welfare-oriented regulation. The
Indian system balances executive powers through constitutional provisions, statutes, and judicial
precedents, aiming to uphold fairness and legality standards. However, delays and non-
suspensive appeals in India weaken protective measures against administrative abuses.
Overall, this comparative analysis underscores the importance of administrative law in
safeguarding individual rights, ensuring government accountability, and promoting good
governance in diverse socio-political contexts.