Droit Administrative : Administrative Law Notes
Droit Administratif : Administrative Law Notes
What is Droit Administratif
Droit Administratif can be defined as a body of rules which determines the organization and the duties of public administration and which regulate the relations of administration with the citizens of the State.
Meaning of Droit administratif: 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 Administratif 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 administratif. 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 administratif:
- the power of administration to act suo motu and impose directly on the subject the duty to obey its decision;
- 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;
- 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 liberally.
Main characteristic features of droit administratif.
The following characteristic features are of the Droit Administratif in France:-
- Those matters concerning the State and administrative litigation falls within the jurisdiction of administrative courts and cannot be decided by the land of the ordinary courts.
- Those deciding matters concerning the State and administrative litigation, rules as developed by the administrative courts are applied.
- If there is any conflict of jurisdiction between ordinary courts and administrative court, it is decided by the tribunal des conflicts. Conseil d’Etat is the highest administrative court.
Prof. Brown and Prof. J.P. Garner have attributed to a combination of following factors as responsible for its success
- The composition and functions of the Conseil d’Etat itself;
- The flexibility of its case-law;
- The simplicity of the remedies available before the administrative courts;
- The special procedure evolved by those courts; and
- The character of the substantive law, which they apply.
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.
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 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 neighbor.
- 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 stillexcels its counterpart in the common law countries of the world.
CLASSIFICATION OF ADMINISTRATIVE ACTION
Administrative action is a comprehensive term and defies exact definition. In modern times the administrative process is a by-product of intensive form of government and cuts across the traditional classification of governmental powers and combines into one all the powers, which were traditionally exercised by three different organs of the State. Therefore, there is general agreement among the writers on administrative law that any attempt of classifying administrative functions or any conceptual basis is not only impossible but also futile.
Even then a student of administrative law is compelled to delve into field of classification because the present-day law especially relating to judicial review freely employs conceptual classification of administrative action. Thus, speaking generally, an administrative action can be classified into four categories:
- Rule-making action or quasi-legislative action.
- Rule-decision action or quasi-judicial action.
- Rule-application action or administrative action.
- Ministerial action
1. Rule-making action or quasi-legislative action
Legislature is the law-making organ of any state. In some written constitutions, like the American and Australian Constitutions, the law making power is expressly vested in the legislature. However, in the Indian Constitution though this power is not so expressly vested in the legislature, yet the combined effect of Articles 107 to III and 196 to 201 is that the law making power can be exercised for the Union by Parliament and for the States by the respective State legislatures. It is the intention of the Constitution-makers that those bodies alone must exercise this law-making power in which this power is vested.
But in the twentieth Century today these legislative bodies cannot give that quality and quantity of laws, which are required for the efficient functioning of a modern intensive form of government. Therefore, the delegation of law-making power to the administration is a compulsive necessity.
When any administrative authority exercises the law-making power delegated to it by the legislature, it is known as the rule-making power delegated to it by the legislature, it is known as the rule-making action of the administration or quasi-legislative action and commonly known as delegated legislation. Rule-making action of the administration partakes all the characteristics, which a normal legislative action possesses.
Such characteristics may be generality, prospectivity and a behaviour that bases action on policy consideration and gives a right or a disability. These characteristics are not without exception. In some cases, administrative rule-making action may be particularised, retroactive and based on evidence.
2. Rule-decision action or quasi-judicial action
Today the bulk of the decisions which affect a private individual come not from courts but from administrative agencies exercising ad judicatory powers. The reason seems to be that since administrative decision-making is also a by-product of the intensive form of government, the traditional judicial system cannot give to the people that quantity of justice, which is required in a welfare State.
Administrative decision-making may be defined, as a power to perform acts administrative in character, but requiring incidentally some characteristics of judicial traditions. On the basis of this definition, the following functions of the administration have been held to be quasi-judicial functions:
- Disciplinary proceedings against students.
- Disciplinary proceedings against an employee for misconduct.
- Confiscation of goods under the sea Customs Act, 1878.
- Cancellation, suspension, revocation or refusal to renew license or permit by licensing authority.
- Determination of citizenship.
- Determination of statutory disputes.
- Power to continue the detention or seizure of goods beyond a particular period.
- Refusal to grant ‘no objection certificate’ under the Bombay Cinemas (Regulations) Act, 1953.
- Forfeiture of pensions and gratuity.
- Authority granting or refusing permission for retrenchment.
- Grant of permit by Regional Transport Authority. Attributes of administrative decision making action or quasi-judicial action and the distinction between judicial, quasi-judicial and administrative action.
3. Rule-application action or administrative action
Though the distinction between quasi- judicial and administrative action has become blurred, yet it does not mean that there is no distinction between the two. If two persons are wearing a similar coat, it does not mean that there is no difference between them. The difference between quasi judicial and administrative action may not be of much practical consequence today but it may still be relevant in determining the measure of natural justice applicable in a given situation.
In A.K. Kraipak v. Union of India, the Court was of the view that in order to determine whether the action of the administrative authority is quasi-judicial or administrative, one has to see the nature of power conferred, to whom power is given, the framework within which power is conferred and the consequences.
Therefore, administrative action is the residuary action which is neither legislative nor judicial. It is concerned with the treatment of a particular situation and is devoid of generality. It has no procedural obligations of collecting evidence and weighing argument. It is based on subjective satisfaction where decision is based on policy and expediency. It does not decide a right though it may affect a right.
However, it does not mean that the principles of natural justice can be ignored completely when the authority is exercising “administrative powers”. Unless the statute provides otherwise, a minimum of the principles of natural justice must always be observed depending on the fact situation of each case. No exhaustive list of such actions may be drawn; however, a few may be noted for the sake of clarity:
- Making a reference to a tribunal for adjudication under the Industrial Disputes Act.
- Functions of a selection committee.
Administrative action may be statutory, having the force of law, or non statutory, devoid of such legal force. The bulk of the administrative action is statutory because a statute or the Constitution gives it a legal force but in some cases it may be non-statutory, such as issuing directions to subordinates not having the force of law, but its violation may be visited with disciplinary action. Though by and large administrative action is discretionary and is based on subjective satisfaction, however, the administrative authority must act fairly, impartially and reasonable.
Therefore, at this stage it becomes very important for us to know what exactly is the difference between Administrative and quasi-judicial Acts. Thus broadly speaking, acts, which are required to be done on the subjective satisfaction of the administrative authority, are called ‘administrative’ acts, while acts, which are required to be done on objective satisfaction of the administrative authority, can be termed as quasi-judicial acts. Administrative decisions, which are founded on pre-determined standards, are called objective decisions whereas decisions which involve a choice as there is no fixed standard to be applied are so called subjective decisions. The former is quasi judicial decision while the latter is administrative decision.
In case of the administrative decision there is no legal obligation upon the person charged with the duty of reaching the decision to consider and weigh, submissions and arguments or to collate any evidence. The grounds upon which he acts and the means, which he takes to inform himself before acting, are left entirely to his discretion. The Supreme Court observed, “It is well settled that the old distinction between a judicial act and administrative act has withered away and we have been liberated from the pestilent incantation of administrative action.
4. Ministerial action
A further distillate of administrative action is ministerial action. Ministerial action is that action of the administrative agency, which is taken as matter of duty imposed upon it by the law devoid of any discretion or judgment. Therefore, a ministerial action involves the performance of a definitive duty in respect of which there is no choice. Collection of revenue may be one such ministerial action.
- Notes and administrative instruction issued in the absence of any If administrative instructions are not referable to any statutory authority they cannot have the
- effect of taking away rights vested in the person governed by the Act.
Recommended Books for Administrative Law