Report No. 14
11. Their increase.-
The increasing tendency in England to invest administrative agencies with powers of adjudication has been thus explained: "The trend in recent years has been to subordinate individual rights to what is conceived to be the public welfare. Parliament seems to have been apprehensive lest its social policies might be nullified by decisions in the courts in protection of individuals whose rights are invaded. It is natural that the executive, charged with carrying out a social policy, should view with distrust any interference with that policy. Where, therefore, there may arise a dispute between, on the one hand, an individual whose property is taken or whose other rights have been invaded, and on the other those who are charged with executing that policy, such disputes have been increasingly withdrawn from the traditional courts and vested in administrative courts or bodies, or in Ministers executing quasi-judicial functions."1
1. Simon-Administrative Procedure and the Rule of Law, British Journal of Administrative Law, Vol. 1,
12. The reasons.-
The view of Prof. Robson, a noted authority on Administrative Law is not very different. He observes: "
This tendency is not the result of a well-thought out constitutional principle. Its growth was haphazard, sporadic and unsystematic. Yet it was not, on the other hand, due to a fit of absentmindedness. Parliament did not merely overlook the courts of law. But the possibility of setting up new organs of adjudication which would do the work more rapidly, more cheaply, more efficiently than the ordinary courts; which would possess greater "technical knowledge and fewer prejudices against government; which would give greater heed to the social interests involved and show less solicitude for private property rights;
which would decide disputes with a conscious effort at furthering the social policy embodied in the legislation; this prospect offered solid advantages which induced the legislature to extend, in one sphere after another, the administrative jurisdiction of government departments so as to include judicial functions affecting the social services. In doing so, Parliament was only repeating a process which has happened again and again in the history, not only of England but of many civilised countries."1
1. Justice and Administrative Law, 3rd Edn., pp. 442-443.
Dicey and several others following him entirely misunderstood the true nature of the Code of rules which ,constituted the droit administratif in France and thought that there existed no administrative tribunals or administrative law in England. He concluded: "It would be a grave mistake if the recognition of the growth of official law in England led any Englishman to suppose that there exists in England as yet any true administrative tribunals or any real administrative law."1
1. Dicey Law of the Constitution, 8th Edn. issued in 1914, Introduction xliv.
13. The position in England.-
It is true as Lord Hewart, then Lord Chief Justice of England stated in his address to the American Bar Association in September 1927 that the common law of England does not recognize any droit administratif 1 It is also true that in England there exists no system akin to the 1954-55, p. 14. French. But it does not follow that England is without a system of administrative law. This seems to have been later recognised by Dicey himself.2 It cannot be denied that today there exists in England a vast body of administrative law and numerous bodies other than courts of law exercising judicial or quasi-judicial functions.
The growth of administrative law is due to the expansion in the functions of government from one field to another and the progressive limitation of the rights of the individual in the interests of the community as a whole. Therefore at the present day there has arisen a need for "a technique of adjudication better fitted to respond to the social requirements of the time than the elaborate and costly system of decision provided by litigation in the courts of law."3
1. The Times, Sept. 2, 1927 and Sept. 30, 1927 cited by Robson Op. Cit., p. 32.
2. The Administrative Law in England-Developments by A.V. Dicey Law Quarterly Review, Vol. 31, p. 148.
3. Robson Op. Cit, p. 33.
14. The French system.-
As it has been asserted that the French system of administrative tribunals with the Conseil D'etat at its head can serve as a model for a system of administrative tribunals in our country, we propose to examine the French system in some detail.
No unfettered freedom to the executive.- The French system of administrative law-or the "Droit administratif' as it is commonly referred to, is clearly a form or branch of law which governs the dealings of State officials with private citizens. The popular conception that in France, the State officials in their official dealings with private citizens are above the law, or are a law unto themselves, is erroneous. The official transgressing the bounds of law or acting contrary to the rules of natural justice in his dealings with the citizen is subject to a greater and more effective control in France than in some Anglo-Saxon countries.
15. Its nature.-
The essential idea which underlies and gives meaning to "droit administratif' is that "the position and liabilities of State officials, and the rights and liabilities of private individuals in their dealings with officials as such, form a separate and distinct chapter of law, which depends upon principles different, indeed, from the principles of the ordinary law, but nevertheless legal principles. Nor is it that the rights and liabilities of private individuals in their dealings with officials as such are matters which are beyond or beneath the reach of established legal procedure. It is rather that for these matters a special procedure is provided which has its own Courts, its own cases, its own precedents, and its own methods".1
1. Hewart New Despotism, pp. 39 to 40.
The system has developed remarkably during the last century and that which was once administrative has become more and more judicial in character and in fact at no time was the judicial element absent. Thus, the droit administratif is a definite system of law with set rules and principles which, however, differ from the rules and principles of ordinary law.
The system is administered by a tribunal which applied judicial methods of procedure. To borrow the words of Lord Hewart, "droit administratif' is administered by real tribunals, known to the parties, and these tribunals apply definite rules and principles to the decision of disputes, and follow a regular course of procedure, though the rules and principles applied are different from those of the ordinary law governing the relations of private citizens as between themselves. Moreover, the tribunals give reasons for their decisions and publish them.
In a word, the 'administrative tribunals' of the Continent are real Courts, and what they administer is law, though a different law from the ordinary law. More than that, the 'droit administratif is a regular system of law, applicable not only to all matters pertaining to the public service, but also to all disputes between the Government or its servants on the one hand and private citizens on the other hand".1
1. Hewart New Despotism, p. 45.
16. The Conseil d'eta.- Its composition and functioning.-
The body known as the Conseil d'etat has supreme jurisdiction to correct the decisions of various administrative authorities. The council functions for all practical purposes like a judicial body, though the councillors occupy only an administrative position. Their position is in no way less independent than that of an ordinary Judge.1 The proceedings are conducted in public and the parties have the right to be represented by counsel. On matters decided, comprehensive judgments are delivered. These constitute valuable precedents for the future. The Council being the final judge regarding the appropriateness of the performance of an executive act, is rightly said to represent the "science and the moral conscience" of the administration.
Sieghart Government by Decree, 1950, 9. 247.
17. Powers and Jurisdiction.-
The Council exercises very wide powers over administrative tribunals. Where the Council is constituted as the final court of appeal from the administrative tribunals, it goes into the merits of questions of law as well as fact. In other cases, the Council will entertain an application in revision to test the legality and propriety of the impunged decision of the tribunal. Even in cases of revision, the council is not restricted to an examination of the error of law apparent on the face of the record.
In the French system, unless the judicial or quasi-judicial order has set out the appropriate reasons, it would be treated as ex facie bad and quashed. Even where the administrative authority is not required to function as a tribunal, whenever it appears to the council from the seriousness of the questions involved that it is appropriate to give a hearing to the person affected, it will insist upon such a procedure being followed. This is to prevent what it calls violation de la loi. This is a very broad concept which includes both procedural and substantive requirements.
The council requires an irreducible minimum of reasons for every administrative act or order being set out. First, there must be no detournement de pouvoir, a concept akin to the doctrine of mala fides. Secondly, facts set out in justification of the order must be true and the council will satisfy itself of their truth. It will also call for the administrative file and examine it. The citizen will be permitted to adduce external proofs. But it must be noted that the rules of evidence are not the same as those applied by civil courts. The jurisdiction exercised by the council prevents the administrative authority getting away with any discretionary act merely by referring to some damaging but false fact against a citizen.
Thirdly, the Council requires that the grounds on which the order proceeds must conform to what it considers to be in law the true scope and object of the legislation to which the order purports to give effect. Even where a statute uses words which prima facie appear to confer wide and unlimited powers on an administrative authority, the council confines the administration strictly to objects which are permitted by it. Even in cases where no grounds are stated upon the face of the order, the council, whenever it considers necessary, may require the authority concerned to furnish reasons and grounds for its acts.1
1. Hamson Executive Discretion and Judicial Control, London, 1954 pp. 194 seq.
18. Its utility.-
Professor Hamson has emphasised the great utility of the Council in its parent country in safeguarding the rights of the citizen and has contrasted the protection given by it to the citizen with the position obtaining in England. According to him, the French institution provides greater safeguards for the rights of citizens than the English courts of law, save in cases of false imprisonment. Its failure in such cases is due to the fact that the council has no concern with the ordinary administration of justice and has no control over the magistracy and the courts.
19. Instances of control of executive action.-
Certain examples of cases with which the council has dealt will illustrate this proposition.1 In what is popularly known as the Ecole case, the Council directed the Minister to allow three candidates to take the competitive examination for entry into Government service, when the Minister had banned their participation on the ground of their alleged communist leanings. Again when a Prefect had prevented a news vendor from plying his trade, the order was quashed by the Council. We may contrast these cases with the decision of the High Court in England in ex parte Parkar,2 in which the High Court expressed its inability to interfere with an order of the Commissioner of Police cancelling a cab driver's licence.
1. These illustrations and the comment of the French Commissaire du Government on the Liversidge case are based on Hamson, p. 24 and the following pages.
2. All England Law Reports, 1953, Vol. 2, p. 717.
The reaction of French administrative lawyers to the decision in Liversidge v. Anderson, 1942 AC 206. is particularly noteworthy. When the decision in that case upholding the doctrine of subjective satisfaction of the Minister in a case of preventive detention (also followed in India in the A.K. Gopalan v. State, 1950 SCR 88.) was explained to the French Commissaire du Government, that official was unable to comprehend the explanation of that case. According to the French officials of the Conseil d'etat, the actual decision in Liver sidge's case was one which must be unacceptable in any civilised country and more particularly in a country which after all had invented the term, the rule of law.
The position in France it seems would have been as follows:
If a French Minister is to be satisfied, he must as a Minister have reasonable grounds upon which his satisfaction is based and having such grounds he is automatically under a duty to disclose them to the competent administrative court, should the body so require it. Consequently the-court would be in a position to judge the adequacy of the ground on which a Minister's order of preventive detention is passed.
The Conseil d'etat has taken upon itself the task of inquiring into the propriety of the refusal on the part of a Minister to grant a passport. This according to Indian Law is entirely a matter for the discretion of the executive.1
1. V.G. Row v. State of Madras, AIR 1954 Mad 240.
20. The extent of its control.-
The jurisdiction which enables the council to quash executive decisions is based on the concept of ultra vires. By virtue of this jurisdiction, it has become possible for the council to control not merely the exercise of powers not warranted by law but also the exercise of a power for a purpose different from that for which it was granted. This brings within the purview of its control a vast field of administrative activities which, in the past, was within the field of discretionary acts. In substance, the council has thus virtually abolished the notion of the unfettered discretion of the administrative authorities.
As a well-known French authority has stated, "Just as there is no longer an act of State so there is no longer a discretionary act, an act that is to say of a sheerly discretionary character The Council of State can always take account of the purpose by which an act is determined and annul it if it thinks that the administration, however much within its formal competence, has pursued an end other than that which the law had in view when conferring the powers. Thus we have what is called abuse of power. At bottom this is-simply an ultra vires act. The official violates the enabling statute when he does something for an object he has no right to pursue. The phrase "abuse of power" is felicitous because it clearly shows the way in which the violation of the law becomes apparent".1
1. Duguit Law in the Modern State, 1919, pp. 185-186 quoted in Sieghait Government by Decree, p. 248.