JAMIA MILLIA ISLAMIA

DROIT
ADMINISTRATIF

SUBMITTED BY
JIJO RAJ P
BA.LL.B (VI Semester)
SECTION B
JAMIA MILLIA ISLAMIA

ACKNOWELEDGEMENT

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This work on Droit Administratif would not became possible without the helping hands of my
Professor Dr. Saadiya and my fellow colleagues. I Thank Professor Dr. Saadiya and my fellow
colleagues for their helping hands.

I also thank my parents and all my friends who helped me in completing this work on Droit
Administratif. I hope this work will help you all in getting a better understanding on Droit
Administratif.

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 TABLE OF CONTENTS

1. Acknowledgement. 2

2. Introduction. 4

3. Principles of Droit Administratif. 5

4. Conseil d’Etat. 5

5. Drawbacks of Droit Administratif. 6

6. Droit Administratif in India. 6-7

7. Position of Tribunals in India. 7-12

8. Conclusion. 13

9. Bibliography. 14

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 INTRODUCTION

Administrative Law is the law concerning the powers and procedures of administrative agencies,
including especially the law governing judicial review of administrative action. It is the law
relating to the administration. There was a rapid growth in the administrative law in the twentieth
century. By this century the role and function of the state have undergone a radical change. The
governmental functions have multiplied by leaps and bounds. Now the state is not merely a
police state, exercising sovereign functions, but as a progressive democratic state, it seeks to
ensure social security and social welfare for the common man, regulates the industrial relations,
exercises control over the production, manufacture and distribution of essential commodities etc.
All these developments have widened the scope of Administrative law.

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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. Droit Administrative does not represent the
rules and principles enacted by Parliament. It contains the rules developed by administrative
courts.

 PRINCIPLES OF DROIT ADMINISTRATIF

Waline, the French jurist, propounds three basic principles of Droit administratif. They are as
follows;

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.

CONSEIL D'ÉTAT

The main advantage of Conseil d'État is that being an independent body. It reviews every
administrative action. This council of the state comprises of eminent civil servants. This council
deals with a variety of matters like;

1. Income Tax.

2. Claims for damages for wrongful acts of Government servants.

3. Personal claims of Civil Servants against:

a. Wrongful dismissal or

b. Suspension.

4. Disputed elections, etc.

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The Conseil d'État can interfere in administrative order if there is:

1. Lack of jurisdiction.

2. The error of law.

3. Misapplication of power

4. The irregularity of procedure.

DRAWBACKS OF DROIT ADMINISTRATION

The limitations or drawbacks of Droit Administration:

1. British Jurist A. V. Dicey once expressed his views that there is no Rule of Law in France
due to the Droit Administration. He thought that the Droit Administration is in contrary
or opposition to the Rule of Law. But it appeared he was mistaken.

2. Although it is true that an individual in France while dealing with the state on any issue
does not stand on the same footing as that on which he stands in dealing with his
neighbor, moreover, the Government and his officials are independent and free from the
jurisdiction of ordinary courts.

3. Despite these drawbacks, the Droit Administration has been quite successful in subjective
Rule of law, in France.

APPLICATION OF DROIT ADMINISTRATIF IN INDIA

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

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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.

POSITION OF TRIBUNALS IN INDIA

In India, the tribunalization of justice begun even before the Constitution and has been seen with
separate courts for consumer matters, company matters, civil matters, criminal matters, and in
the Armed forces Tribunal Act. Though the word “Tribunal” has not been statutorily defined, the
test for a tribunal was held in Jaswant Sugar Mills v. Lakshmi Chand 1, to be whether it was
invested with the trappings of a court, such as having the authority to determine matters,
authority to compel the attendance of witnesses, the duty to follow the essential rules of evidence
and the power to impose sanctions. There are State and Central Administrative Tribunals (CAT),
similar to the Administrative courts in France. Announced as the brainchild of former Prime
Minister Rajiv Gandhi, the CAT was envisioned as the replacement of the High Court to the
extent it pertained to the service disputes as between the Central Government employees and the
Central Government as also the intra – departmental controversies. The Central Administrative
Tribunals Act in 1985 had initially provided that orders of the CAT may only be challenged in
the Supreme Court under Art.136 of the Constitution. After this, the High Court was empowered
to entertain appeals against orders of the CAT under Art.226 of the Constitution. The finality of
orders of the CAT may give rise to speedier disposal of cases. But this, while contradicting the
concept of Rule of Law, also violates the basic structure of the Constitution.

The modern Indian Republic was born as a Welfare State and thus the burden on the
government to provide a host of welfare services to the people were immense. The quasi-judicial
powers acquired by the administration led to a huge number of cases with respect to the manner
in which these administrative bodies arrived at their decisions. The Courts have held that these
bodies must maintain procedural safeguards while arriving at their decisions and observe
principles of natural justice and these opinions were substantiated by the 14th Law Commission
Report2. The vast number of welfare legislations coupled with the right to judicial review was
thought to be potentially burden the civil courts with more matters than they would be able to

1
A.I.R. 1963 S.C. 677
2
R. NAYAK, ADMINISTRATIVE JUSTICE IN INDIA 38 (1989)

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handle. Thus, various tribunals for income tax matters, railway rates, labour matters, and
company courts were given statutory legitimacy to function parallel to ordinary civil courts.

The tribunal system in India for Administrative matters derives its legitimacy from Article 323A
of the Constitution. Administrative dispute resolution through separate tribunals for service
matters came about through the 42nd Constitutional Amendment Act, 1976 to insert Article
323A, providing for adjudication of disputes relating to conditions of service of the public
services of the Union and of the States from the hands of the civil courts and the High Courts and
to place them in and Administrative Tribunal 3. Like the intentions behind the Conseil d’Etat, the
object of this experiment was to ease the burden of backlog of cases pending before the High
Courts and to provide an expert and expeditious forum for disposal of disputes of Government
servants relating to service matters4. The relation between this amendment and the common law
evolved Droit Administratif was observed as a positive change even by critics of the
Amendment5. The civil courts are gripped with strict rules of pleadings and evidence, which are
not necessary for the disposal of cases pertaining to the services 6. It has been held that the
constitution of Service Tribunals by State Governments with an apex Tribunal at the Centre,
which, in the generality of cases, should be the final arbiter of controversies relating to
conditions of service, including the vexed question of seniority, may save the courts from the
avalanche of writ petitions and appeals in service matters. The proceedings of such tribunals can
have the merit of informality and if they will not be tied down to strict rules of evidence, they
might be able to produce solutions which will satisfy many and displease only a few7.

Pursuant to the amendment of Article 323A, the enactment of the Administrative Tribunals Act
and the Central Administrative Tribunal Act in 1985 was accordingly enabled. And Section 28 of
the Administrative Tribunal Act, empowered through Article 323A(2)(d) of the Constitution,
effectively excluded judicial review of decisions of the CAT by the High Courts. But a party
aggrieved by the CAT order was left the option of challenging it in the Supreme Court only

3
DR. DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA 10,645 (8th ed., Lexis Nexis
Butterworths Wadhwa 2011)
4
See the Statement of Objects and Reasons, accompanying the Forty-fourth Amendment Bill (later renumbered as
the Forty-Second Amendment Act of the Constitution.)
5
Rajeev Dhavan, “Amending the Amendment: The Constitution (Forty-fifth Amendment) Bill, 1978”, 20 J.I.L.I.
(1978) 249-272 at p. 267
6
Vatchirkavu Village Panchayat v. Deekshithulu Nori Venketarama, 1991 Supp. (2) S.C.C. 228
7
Kamal Kanti Dutta v. Union of India, (1980) 4 SCC 38

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under Art.136 of the Constitution. Thus, a complete adaptation of Driot Administratif is
impossible in India because judicial review of tribunals’ orders cannot fully be removed. Any
law excluding the Supreme Court’s jurisdiction is a prima facie denial of the fundamental right
conferred under Art.32, and thus liable to be struck down.

The Supreme Court has taken the stand that the power of judicial review is an integral part of
our constitutional system, and without it the rule of law would become illusory, unless an
adequate alternative is brought forth8. However, a quasi-executive body could, to some extent be
granted the exclusion of judicial review by High Courts before the ratio in L. Chandra Kumar
case in 1997. The exclusion of the review of High Courts under Section 28 came up for
discussion in S.P. Sampath Kumar v. Union of India 9. Justice Bhagawati, echoing the decision of
the Constitutional Bench and concurring with Justice Ranganath Mishra expressed that “….the
basic and essential feature of judicial review cannot be dispensed with but it would be within the
competence of Parliament to amend the Constitution so as to substitute in place of the High
Court, another alternative institutional mechanism or arrangement for judicial review, provided it
is not less efficacious than the High Court”.

The Administrative Tribunal was thus seen to be an appellate authority along the lines of the
High Court but only for service matters on appeal from the SATs to the CAT. In this, the
Tribunals were held to have the same powers as the High Court under Articles 226 and 227 of
the Constitution. In addition to this, they have the same powers and follow the same procedures
as the Civil Courts, insofar as they can review their own decisions 10. However, while having such
powers, they are not bound by the procedural shackles of the Civil Courts11.

While holding that judicial review was an integral part of our Constitution under the Rule of
Law, the exclusion of the High Courts’ jurisdiction by way of Section 28 and Article 323A(2)(d)
was thus justified. Judicial review not wholly undone by holding this as the Supreme Court still
retained its jurisdiction. However, there was substantial consideration of the possibility of a body
set up as an executive authority and acting as a judge in its own matters, which challenges the
separation of powers under the Constitution. In this regard, both Justice Mishra and Justice

8
Minerva Mills Ltd. and Ors. v. Union of India and Ors, [1981] 1 S.C.R. 206
9
(1987) 1 S.C.C. 124
10
State of West Bengal v. Kamal Sengupta, (2008) 8 S.C.C. 612
11
Id.

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Bhagawati agreed that the possibility of preponderance of administrative members in the tribunal
must be attenuated and thus laid the following four conditions:

(i) the Tribunal shall have as its Chairman a legally trained person who is
equal to the Chief Justice of a High Court with respect to
qualifications;
(ii) the Tribunal has benches at the seat of all the High Courts;
(iii) a bench of the Tribunal should consist of at least one judicial member
and one administrative member;
(iv) the appointments to the Tribunal should be fair and objective so that
the impartiality of its Chairman, Vice-Chairman, and members is
assured.

Despite the holding in Sampath Kumar, the powers of Administrative Tribunal were still under
criticism. Firstly, in equating the powers of the Administrative tribunals to those of High Courts,
the judgement did not address whether the tribunal could strike down a law or statute as being
constitutionally invalid. This question came up in J.B.Chopra v. Union of India 12, where the
Supreme Court ruled that such a power was the direct and logical consequence of the reasoning
in Sampath Kumar. Secondly, that the Tribunal did not have the jurisdiction to decide on the
constitutionality of orders relating to service matters, such as orders issued by the President
under Article 309 of the Constitution13.

However in Union of India v. Parma Nanda14, the Supreme Court upheld the authority of the
Administrative Tribunals to decide the constitutionality of service rules. The Sampath Kumar
case also did not consider the possibility of statutory interference by a State Government in an
SAT order. This question was clarified in Sambamurthy and Ors. v. State of Andhra Pradesh and
Anr.,15 where the Supreme Court, while concurring with the ratio in Sampath Kumar held that
any interference by the administration in an administrative dispute is violative of the basic
structure and Rule of Law.

12
(1987) 1 S.C.C. 422
13
Dr M.L. Upadhyay, 'Administrative Tribunals : No Alternative Mechanism for Judicial Review', Central India
Law Quarterly, Vol. 2 (1989) 433
14
A.I.R. 1989 S.C. 1185
15
1987 S.C.R. (1) 879

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The equation of the Administrative tribunals with High Courts also raised the question of
whether the members of the tribunal were entitled to equal pay. This was later clarified in
M.B.Majumdar v. Union of India16. It was held that as regards pay and superannuation, the
equation of members of the Tribunal with judges of High Court was not justified; however, the
Administrative tribunals Act itself lays a basis for classification between the Chairman of the
Tribunal and the Vice-Chairman. Insofar as the statute itself lays a distinction, the standards for
the post of Chairman and Vice-Chairman of the Tribunal cannot be the same.

The First Law Commission in its 14th Report in 1958 had suggested the setting up of various
tribunals providing the advantages of speed and procedural simplicity. But at the same time, the
Commission warned that the Tribunal system should be supplementary to the ordinary courts and
should not supplant them. On the same grounds, the Eighteenth Law Commission in its 215th
report in 2008 suggested that the L.Chandra Kumar case be revisited by a larger bench of the
Supreme Court. The Report delves into the objectives of the Amendment as well as those of the
Administrative Tribunals Act. With reference to a number of previous reports of the
Commission, the report concludes by favoring the position as laid down in the Sampath Kumar
case and recommending reconsideration of the L.Chandra Kumar case, which in the
Commissions view undid the objectives of the Administrative Tribunals Act.

It is uncertain whether the Administrative Tribunals in India, if modelled along the French Droit
Administratif, would lead to more efficiency in disposal of cases. H.M. Seervai has expressed
reservations about adopting this system absolutely in India simply because it was seen to work
smoothly in France. While all praise for the system, he observes that the French Government was
prepared to pay the price of subjecting public administration to the rule of law by an independent
tribunal of its own officials17.

The conditions that were prevalent when the Conseil d’Etat was established in France do not
exist in India. A tribunal that is subject to its own unquestioned discretion would fail the basic
structure’s requirement of judicial review by the Supreme Court. The position today is that
orders of the CAT are subject to judicial scrutiny by a division bench of the High Courts. This, as

16
1990 S.C.R. (3) 946
17
H.M SEERVAI, CONSTITUTIONAL LAW OF INDIA 3059 (4th ed., Universal Law Publishing Co. 2008)

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has already been discussed, is contrary to the intentions of the 42nd Amendment which sought,
as much as possible, to espouse in principle the Droit Administratif. The Administrative Tribunal
is neither a completely judicial body nor a completely administrative body.

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 CONCLUSION

In the Delhi Bar Association 18 case, it was argued that the legislative competence of the
Parliament to create tribunals could not be questioned. The argument on the part of the Union of
India was that vesting jurisdiction with tribunals would leave the High Courts with no cases but
this was negated by the Court. Tribunals should not be seen as departments of ministries as part
of the administration nor must they seem to be so independent as to be excluded from
jurisdiction of ordinary courts. Thus the best way is the adoption of Droit Administratif system in
India. The jurisdiction of the Supreme Court can never be ousted. The High Courts’ jurisdiction
may be ousted without affecting the jurisdiction of the Supreme Court as held in Sampath Kumar
and suggested by the Law Commission, but must be accountable to an independent body which
is neither an arm of the administration nor an ordinary court. The Supreme Court too must be
cautious in admitting appeals from order of tribunals to ensure the efficacy of this system. A
partial adoption of the Droit Administratif, coupled with an overlooking independent nodal
agency, both free from over-interference from the administration or the ordinary courts is one
way by which the present ills of the system may be removed.

18
Union of India v. Delhi bar Association, (2002) 4 S.C.C. 275

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 BIBLIOGRAPHY

 C.K Takwani, Lectures on Administrative Law, 4th Edition, Eastern Book Company,
Lucknow,2010.
 DR. Durga Das Basu, Commentary on The Constitution of India,8th Edition., Lexis Nexis,
2011.
 H.M SeervaI, Constitutional Law of India, 4th Edition., Universal Law Publishing Co.,
2008.
 Dr M.L. Upadhyay, 'Administrative Tribunals : No Alternative Mechanism for Judicial
Review', Central India Law Quarterly, Vol. 2 (1989).

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