This Article is written by Arushi Chopra ( A law student at Symbiosis Law School)
Administrative law has been an important facet of every legal system irrespective of its political philosophy. Governing relationship between administration and individuals becomes important especially in a welfare state like India where the state is expected to act as the parent of its citizens. Droit Administratif is the French administrative system that is partially based on the green light approach to administrative law. France has set up administrative courts which run parallel to and are distinct from the civil courts. The civil courts do not have the jurisdiction to try matters involving conflict between states and subjects. The administrative courts, which comprises the executive is given the complete autonomy to preside over these matters. Droit Administratif is essentially the rules and principles formed by this court to govern the relationship between the state and the citizens.
Though this system was criticised by prominent jurists like AV Dicey for having the potential to result in complete subversion of rights of the citizens and the courts being biased to the administrative agencies, the experience has been quite the opposite. This paper aims to understand the concept of Droit administratif and the applicability of the same in India.
Droit administratif in France can be defined as the set of rules which determines a separate organisation and the duties of that organisation vis maintaining the relationship between the administration and its subjects. Following this, the Counseil d’Etat was formed as an administrative court that had jurisdiction on matters relating to the state and citizens. The civil court was kept distinct and it did not have any jurisdiction to entertain the subject matters.
Thus, for a dispute between two individuals a civil court had the power to adjudicate, but the power to try matters involving state on one side and one or more citizens on the other was left to the Counseil d’Estat. These administrative courts developed some principles and rules and these were represented by the phrase Droit Administratif. Thus, Droit administratif rules are not made by the French parliament but the administrative courts.
The rules framed under the Droit administratif can be categorised into three heads. First, it deals with rules dealing with administrative authorities and its officials which principally include all matters relating to appointment, salaries and the like. The next set of rules deal with the public services which are essential to meet the needs of the citizens which become essential in a welfare state.
Lastly, the rules deal with administrative adjudication i.e. the principles developed to be used while adjudicating a matter between the state and an individual. This system of separate courts for the adjudication of administrative matters was made looking at the history of France were the judges, using the power of judicial review, would often intrude on the business of the administrative organisations. Furthermore, Tribunal des conflict was established and given exclusive power to adjudicate on matters of conflict regarding jurisdiction between administrative courts and civil courts.
The basic premise on which the need to make a separate court and make a system of administrative law distinct from other countries was that it was recognised that the nature of dealing with a state with that of its citizens is not of the same nature as that between two citizens of the state. Thus, there was a need for a separate set of laws for these two dealings. Also, historically, Counseil du Roi, though formed for dealing with only certain matters, eventually started taking cognisance of all the administrative matters in which the government was interested. The separate administrative court was thus a result of the excessive powers given to the courts which were hindering the governance. This system was thus formed to ensure that the administrative authorities are independent in their functioning while also maintaining the checks and balances needed for good governance.
The system of Droit administratif in France was in contradistinction with the rule of law in England according to AV Dicey. The rule of law essentially stated that law is supreme and thus there must be equality before the law. Each and every citizen irrespective of his status and position should be governed by the same laws. However, the Droit administratif system made special rules to be applicable to administrative agencies and officials and a special court to deal with such matters. AV Dicey criticised the system as it seemed futile to seek a remedy against actions of administrative agencies and officials from the Counseil d’Etat which was more of an administrative body than a judicial body. He observed that the system was not capable to do any justice to the citizens and the rights of individuals would never be enforced as the administrative court would be biased towards the administrative agencies. Moreover, there is no further appeal that can be made if an individual is not satisfied with the decision of the administrative court. Thus, the citizens would have no option but to comply with the decision made by the administrative court which may make a biased decision being an administrative body in itself. It was also contended that the system does not follow the doctrine of separation of power in so far as the administrative courts which are the executive body have been provided with the power to adjudicate. All these reasons combined would lead to this system being ineffective and against the common law principles of justice, equity and good conscience.
Opposite to these criticisms, the French administrative system has become the most effective system to govern the relationship between the state and its citizens. The system has been able to uphold the rights of citizens and provide appropriate remedies to the citizens who have suffered some loss owing to executive actions. The Counseil d’Etat has been referred to as the “bulwark of civil liberties” and “guardian of administrative morality”. Professor Brown and Professor J.P. Garner have linked the success of the droitAdministratif system to the functioning, principles and procedure developed by the administrative courts for adjudication of matters.
A judge of the Counseil d’Etat has administrative experience and is able to give better decisions in respect to these matters when compared to the civil court judges. The administrative courts have provided inexpensive relief to the private individuals better than common law countries by recognising the absolute liability of the states. In common law countries, relief is given on the basis of the element of fault. While this is true for civil court cases in France, it is not applied in the same manner in administrative court cases.
The person gets relief in all cases where damage has been caused due to executive actions even if the same was without any fault of the agency. In the Fortune case, the aggrieved citizen could have been able to get remedy by quashing the order of the minister by examining the confidential report. However, this could not be done in the rule of law system like in England as ministers can claim that the documents being sensitive in nature cannot be presented.
The success of the Droit administratif system has inspired other countries to incorporate some aspects of this system in their legal system. There are both central and state administrative tribunals established in India in line with the French administrative system. The tribunals derive their legitimacy from Article 323A of the Constitution of India. The constant upsurge in the number of tribunals since independence is indicative of the recognition of some facets of Droit administratif in the Indian legal system. Apart from this, India has also recognised legitimate expectation and proportionality as grounds for judicial review in line with Droit administratif system.
However, it must be noted that absolute adoption of Droit administratif is not possible. Judicial review of administrative action that is barred in the French administrative system cannot be stopped in India. This is because judicial review is recognised as the basic structure and cannot be done away with within India. The Supreme Court has held that judicial review in India is necessary given our condition and without the principle of judicial review, there would be no rule of law in existence.
To conclude, the Droit administratif or the French administrative system essentially separates civil law from administrative law and provides for different sets of courts to adjudicate on these different matters. Though the system was criticised at first by some scholars, its success in upholding the rights of people and providing justice has been noteworthy.
The administrative courts, instead of being biased towards administrative agencies, have duly recognised the important responsibility vested upon them and have given judgements according to the principles of justice, equity and good conscience. Certain principles of this system have also been incorporated in the Indian administrative law which has further improved dealing with the relationship of administrative agencies and citizens in India.
 Marks D. Walters (2015), “Public Law and Ordinary Legal Method: Revisiting Dicey’s Approach to Droit administratif”, University of Toronto Law Journal, 66, pp-53-82
NimishaJha (2018), “Droit Administratif: Adoption in India, UK, USA and France”, The Lex Warrior Online Law Journal, 7, pp- 316-337
 Sumner Lobingier (1942), “Administrative Law and Droit Administratif”, Penn Law Review, pp 36-58
Schiavone v. Fortune 477 U.S. 21 (1986)
Indira Gandhi v. Raj Narain, 1975 AIR 2299
Minerva Mills v. Union of India, (1981) 1 S.C.R. 206