ADMINISTRATIVE LAW ASSIGNMENT

606- ADMINISTRATIVE LAW

Submitted by

Ambujesh Upamanyu

SM0121006

3rd Year, 6th Semester

Submitted to

Ms. Kangkana Goswami

Faculty-in-charge

National Law University and Judicial Academy, Assam

 1. ELUCIDATE UPON THE TRANSFORMATIONAL METAMORPHOSIS OF
‘RULE OF LAW’ TO ‘SEPARATION OF POWERS’.

In democratic nations, the rule of law and the division of powers play crucial roles in
safeguarding justice and freedom. These principles not only determine how governance is
structured but also ensure the protection of individual rights, encourage accountability, and
prevent the consolidation of authority. Found within constitutions across the globe, they
epitomize values of equity, oversight, and the importance of adhering to legal standards
rather than arbitrary decisions.

The principle of the rule of law, originating from ancient civilizations and refined over
centuries, asserts that all individuals, including government officials, must adhere to
established legal principles, ensuring that no one is exempt from the law. It serves as the
foundation for a fair society, promoting predictability, transparency, and equal treatment
before the law. Conversely, the separation of powers divides governmental functions into
distinct branches—executive, legislative, and judicial—each with defined roles and powers,
serving as a safeguard against tyranny and misuse of authority.

These principles collectively underpin modern democracies, shaping the relationship between
government and citizens, upholding rights and freedoms, and fostering a system where justice
is universally accessible. This discussion explores the historical roots, philosophical
foundations, and contemporary significance of the rule of law and the separation of powers in
maintaining the vitality of democratic governance.

India has long been acquainted with the concepts of the rule of law and the separation of
powers. The Constitution of India distinctly outlines the three branches of government: the
Legislature, responsible for making laws; the Executive, tasked with implementing laws; and
the Judiciary, which adjudicates legal matters. Although Article 50 of the Constitution directs
the separation of the judiciary from the executive, India's constitutional framework does not
rigidly adhere to a formalistic and dogmatic division of powers beyond this directive
principle. The Drafting Committee and the Constituent Assembly likely chose not to establish

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this explicit differentiation in writing to avoid discouraging the overlapping functions of the
respective branches of government.

The Rule of Law has long been regarded as a fundamental principle in legal systems
worldwide. It embodies the notion that no individual, regardless of status or authority, is
exempt from legal standards. In societies governed by the Rule of Law, laws apply uniformly
to all, ensuring fairness, consistency, and accountability. In India, Article 14 of the
Constitution serves as a cornerstone in upholding the Rule of Law, guaranteeing equality
before the law and equal protection of the laws to all individuals within the nation's territory.

As articulated by Professor Massey, the Rule of Law necessitates that power be held
accountable, governance be increasingly fair and equitable, and the State conduct itself
ethically. While the exact interpretation of the Rule of Law may vary, courts typically refrain
from invalidating legislation solely on the grounds of violating Rule of Law principles.
However, notable exceptions exist, such as the A.D.M Jabalpur v. Shivkant Shukla case,
commonly known as the Habeas Corpus Case, where attempts were made to challenge
detention orders issued during the Emergency on Rule of Law grounds. Although these
contentions were not ultimately successful, the case underscored the central importance of the
Rule of Law in India's constitutional framework, even if not explicitly reflected in the court's
final ruling.

The principle of equality stands in direct opposition to arbitrariness.

Another significant legal precedent regarding the Rule of Law can be found in the case of
E.P. Royappa v. State of Tamil Nadu. This case established a test for arbitrariness, asserting
that the equality guaranteed by Article 14 includes protection against arbitrary actions by the
State. Despite its somewhat vague formulation, this test has gained acceptance by the
Supreme Court and has formed the basis for numerous cases where State actions have been
deemed inconsistent with Article 14.

The evolution of the Rule of Law and its integration into the concept of separation of powers
has been a gradual process. One of the key elements of the separation of powers is the
doctrine of checks and balances.

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The Doctrine of Checks and Balances

The Checks and Balances Doctrine stipulates that each branch of government should possess
the authority to oversee and limit the powers of the other two branches, thereby maintaining
equilibrium among the state's three distinct powers. This principle aims to prevent any single
branch from exerting undue dominance, thereby safeguarding the populace from potential
governmental overreach.

Immanuel Kant endorsed this notion, suggesting that even a group of morally compromised
individuals could establish a functional state with a well-designed constitution that fosters
competing interests.

Checks and balances are integral to preserving the separation of powers by holding each
branch accountable within its designated sphere of authority. This concept extends beyond
merely separating powers; it also necessitates constitutional mechanisms for branches to
protect their legitimate authority from encroachment by others. This concept significantly
influenced the drafting of the 1787 United States Constitution, where Alexander Hamilton,
inspired by Montesquieu, emphasized the judiciary's independence as a distinct branch
alongside the legislative and executive branches.

Prior to Hamilton's contributions, many American colonists had adopted British political
concepts, envisioning government primarily consisting of executive and legislative branches,
often with judges perceived as extensions of the executive branch. In contrast, the
Westminster System of Governance, advocated by the United Kingdom and largely adopted
by its former colonies like India, takes a different approach to the doctrine of checks and
balances. It is particularly concerned with preventing the entanglement of powers, unlike the
American model.

Under the Westminster System, the Executive's ability to implement decisions often relies on
the Legislature, elected through either single-member representative or mixed-member
proportional systems. This setup allows for the formation of a government by a single party
or a coalition of parties. The Judiciary operates independently without interference from the
government. In cases where judicial rulings lead to interpretations of the law that the
Executive believes do not align with the policy's intent, the Executive can propose

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amendments to legislation through the Legislature. However, the Executive cannot instruct or
request a judicial officer to review or reconsider a decision; judicial decisions are final.

Transformation

The Rule of Law, with its ancient origins, underscores the supremacy of legal principles that
govern societies, ensuring that laws are paramount and uniformly applied to all individuals,
irrespective of their status or position. The concept of Separation of Powers emerged
subsequently as a response to concerns regarding concentrated authority and the potential for
abuse of power by monarchs or centralized governments. It has since become a foundational
element of modern democratic governance.

The Rule of Law serves as a cornerstone of the legal system, guaranteeing that laws are
equitable, transparent, and administered impartially. Complementing this, the Separation of
Powers delineates how governmental authority is distributed and shared among different
branches.

Conversely, Separation of Powers plays a crucial role in upholding the Rule of Law by
preventing any single branch from dominating or undermining legal norms. For instance, the
judiciary can scrutinize executive actions to ensure compliance with legal standards, thereby
reinforcing the principles of the Rule of Law. A pertinent example of this dynamic can be
observed in the case of the 99th Amendment of the Indian Constitution concerning the
National Judicial Appointment Commission (NJAC) Act.

The Supreme Court Advocates on Record Association (SCAORA) and other entities
contested the constitutionality of the NJAC Act in the Supreme Court, arguing that it posed a
threat to judicial independence. Subsequently, the petition was upheld, and on October 16, a
constitutional bench headed by Justice J.S. Khehar declared both the National Judicial
Appointments Commission (NJAC) and the 99th Constitutional Amendment Act
unconstitutional and nullified.

Conclusion

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In summary, the rule of law and the separation of powers are essential pillars of democracy,
ensuring justice, freedom, and accountability. These principles shape governance, protect
individual rights, and prevent abuse of authority. Rooted in ancient civilizations, they
guarantee fairness and transparency, while the doctrine of checks and balances prevents
dominance by any branch of government. India's constitution reflects these principles,
emphasizing the importance of a balanced distribution of powers. Legal challenges, like the
National Judicial Appointment Commission (NJAC) Act case, underscore the ongoing need
to uphold these principles. In essence, they are vital for ensuring the integrity of democratic
governance and safeguarding the rights of all individuals.

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2. EXPLAIN THE INTERPLAY OF CHECKS AND BALANCES IN FRENCH DROIT
ADMINISTRATIF AND DETAILED ANALYSIS ON ITS EVOLUTION.

To understand how checks and balances operate within French administrative law, it is
essential to outline the framework of Droit Administratif. In France, Droit Administratif
refers to a set of regulations that govern the structure and responsibilities of public
administration, as well as the interactions between the administration and the citizens of the
State.

Background

Napoleon Bonaparte is renowned for implementing numerous significant legal reforms

during his tenure as the ruler of France. Among his most notable contributions is the
development of administrative law. Napoleon's most celebrated legal reform was the
introduction of the Napoleonic Code, also known as the Civil Code. This code standardized
and simplified French law, including administrative law, by enshrining principles such as
equality before the law, property rights, and the legal protection of individuals' rights.
Additionally, the creation of the Conseil d’Etat (Council of the State) was established within
this Code.

Droit Administratif, often associated with Napoleon Bonaparte, emerged within a historical
context characterized by power struggles in French politics. Prior to the Revolution in 1789,
France witnessed a power struggle between traditional Bonapartists, who favored strong
executive powers even in legal matters, and reformist parliaments advocating for the
jurisdiction of ordinary courts. Pre-revolutionary France saw the Conseil du Roi (the Royal
Council) acting as legal and administrative advisors to the King, akin to the Curia Regis and
Privy Council during Britain's feudalistic era. Not only did the Conseil du Roi offer advice,
but it also exercised judicial authority, resolving disputes among high-ranking nobles.

This historical backdrop underscores the complex interplay between centralized authority,
judicial oversight, and the pursuit of legal and administrative reforms during Napoleon's
reign.

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Function And Evolution To Present Status

Following the Revolution in 1789, a significant breakthrough emerged from the entrenched
political deadlock. The revolutionaries' initial step was to restrict the power of the executive,
guided by the principle of the separation of powers enshrined in the renowned Law of 16-24
August 1790. This legislation abolished the Conseil du Roi and limited the King's authority.
Upon Napoleon's ascent as the first Consul, he championed administrative freedom and
embraced reformist ideals. He envisioned an institution capable of safeguarding the people
from administrative abuses. Consequently, in 1799, the Conseil d’Etat was established with
the primary aim of addressing administrative challenges that might arise.

Initially, the Conseil d’Etat served as an advisory body, assisting the Minister responsible for
addressing grievances. Operating under the executive branch, it lacked independent judicial
powers and primarily provided advisory opinions, reflecting the government's viewpoint.
Unlike traditional courts, it did not hold public sessions or render judgments. This
arrangement, where the Minister held ultimate decision-making authority and the Conseil
d’Etat offered advisory opinions, diverged from Dicey's conception of the rule of law, which
emphasizes judicial independence and impartiality. Nevertheless, over time, the Conseil
d’Etat evolved to assume quasi-judicial functions, particularly in administrative matters,
signifying a significant development in France's administrative law landscape.

Checks And Balances Mechanism

In 1872, the Conseil d’Etat's authority to adjudicate was formally acknowledged. The Arrets
Blanco, issued on 8 February 1873, constituted a pivotal moment by affirming the conclusive
jurisdiction of the Conseil d’Etat in all administrative matters. This decree, among other
provisions, established the principle that issues of administrative liability fell within the
domain of administrative courts, governed by distinct rules separate from those of civil law.

By 1889, a significant shift occurred as the Conseil d’Etat began entertaining direct
complaints from citizens, circumventing the necessity to route them through government
Ministers. This change reflected an increasing accessibility and responsiveness of the
administrative justice system to individual grievances, thereby introducing a mechanism of

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checks and balances. By bypassing the need to involve government ministers, it brought an
end to layers of bureaucratic red tape.

It is noteworthy that Droit Administratif transcends mere legislative prescriptions from the
French Parliament. Rather, it encompasses a corpus of rules and precedents shaped by the
judges presiding over administrative courts. This evolutionary process underscores the
dynamic nature of administrative law, influenced not only by legislative enactments but also
by judicial interpretations and rulings.

Given the existence of two distinct judicial bodies within the legal system—the ordinary
courts and the administrative courts—potential overlaps in jurisdiction or conflicts of interest
may arise. However, prudent measures have been implemented to address these issues. In
cases of jurisdictional conflicts between the ordinary courts and the administrative courts,
resolution is entrusted to a third body—the Tribunal des Conflicts. This tribunal comprises an
equal number of judges from both the regular judicial system and the administrative sphere,
overseen by the Minister of Justice, thereby ensuring impartiality in theory.

Unlike the Civil Code, which has a specific Code of Administrative Law, no such
codification exists for administrative law. Instead, the Conseil d’Etat has independently
developed and refined its legal principles. This process aims not to legitimize arbitrary
administrative powers or curtail citizen liberties but rather to safeguard citizens from
administrative overreach. Occasionally, these new legal principles crafted by the Conseil
d’Etat find their way into the Civil Code through parliamentary intervention.

Conclusion

In summary, French administrative law, known as Droit Administratif, has evolved

significantly over time with the aim of ensuring justice, accountability, and the rule of law.
Originating from Napoleon Bonaparte's reforms, including the creation of the Napoleonic
Code and the Conseil d’Etat, this legal framework has adapted to address societal needs and
governance challenges. Key developments include the establishment of checks and balances
mechanisms, such as the Law of 16-24 August 1790 and the Arrets Blanco of 1873, which
limited executive power and solidified the Conseil d’Etat's jurisdiction in administrative

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matters. The evolution of administrative law continues, guided by principles of fairness,
impartiality, and citizen protection.

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