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Report No. 14

41. Existing constitutional remedies not to be curtailed.-

It is of equal importance to remember that any measure we suggest and which we adopt should be supplementary and in addition to the constitutional remedies that are now open to the citizens. Their beneficial effect has, as noted elsewhere, been felt throughout the country and has kept even the highest executive constantly on the alert for fear of their action being quickly challenged in a court of law. It would be disastrous to remove this most salutary restraint on the administration. It is not surprising that suggestions for the modification of some of these constitutional remedies have been recently voiced by the executive. In our view, these suggestions must be sternly discountenanced.

If resort to these constitutional remedies results in delaying administrative action the remedy is to strengthen the Courts, for dealing expeditiously with these matters.

42. Summary of recommendations.-

We shall now summarize our recommendations:

(1) The existing jurisdiction of the Supreme Court and the High Courts which enables them to examine to a limited extent the action of administrative bodies should be maintained unimpaired.

(2) The creation of a general administrative body like the Conseil D'etat in France is not practicable in our country.

(3) Decisions should be demarcated into-

(a) judicial and quasi-judicial, and

(b) administrative.

(4) In the judicial and quasi-judicial decisions, an appeal on facts should lie to an independent tribunal presided over by a person qualified to be a Judge of a High Court. He may be assisted by a person or persons with administrative or technical knowledge. The tribunal must function with openness, fairness and impartiality as laid down by the Franks Committee.

(5) In the case of judicial or quasi-judicial decisions, an appeal or a revision on questions of law should lie to the High Court. Special machinery can, if necessary, be provided to assist the High Court Judge. The suggestions made by the Spens Committee may be adopted in this connection.

(6) In the case of administrative decisions, provision should be made that they should be accompanied by reasons. The reasons will make it possible to test the validity of these decisions by the machinery of appropriate writs.

(7) The tribunals delivering administrative judgments should conform to the principles of natural justice and should act with openness, fairness and impartiality.

(8) Legislation providing a simple procedure embodying the principles of natural justice for the functioning of tribunals may be passed. Such procedure will be applicable to the functioning of all tribunals in the absence of special provision or provisions in the statutes constituting them.

(9) Appropriate legislation will have to be enacted to provide for tribunals to operate in the manner indicated above for the discharge of quasi-judicial or judicial functions by administrative bodies or officers, which may be entrusted to them by any legislation.


The History of The Conseil D'etat

The origins of the Conseil d'etat founded by Napoleon can be traced back to pre­revolutionary France. It was modelled on the earlier Council D'-Roy. The members of the Council were a group of administrators designed to assist the Government in the formulation of policy and it was parallel to and distinct from the Council of Ministers. Originally no doubt, it was intended to act as a shield of the Government and was entrusted with the task of deciding questions of jurisdiction and preventing the ordinary courts from encroaching on the field of administration.

It, however, also began from early times to entertain certain actions against the Government and has throughout maintained a distinction between its advisory and judicial functions. In view of the value of the Council as an instrument of revising Government Bills and securing justice in certain cases, it survived the restoration of the Bourbons and was continued even under the Orleans monarchy. In 1831, an ordinance was passed reorganising the contentious or judicial business of the Council. Gradually, as the prestige of the Council increased, its decisions ceased to be advisory and in 1872, executory force was given to all its judgments.

At about the same time its power to decide is not unknown for ambitious men to seek a change. Younger members of the Conseil are occasionally encouraged to go on deputation for a time to the active administration or the foreign service for the time being and to return to their original position in the Conseil without gain or loss of seniority. The Council is not associated with active administration in the sense that it is not immediately responsible either for policy or the actual execution thereof but it serves to advise the administration generally on the formulation of policy and its execution. It is a dynamic body having in its personnel, people of varying ages.

Though the Council as a unit is primarily an administrative body yet its judicial business is strictly separated from the non-judicial. When the Council meets to transact its judicial business, all the members of the administrative sections excepting four, who are annually chosen to represent their administrative colleagues are excluded from its deliberations and take no part in making the final decision. The entire Council works as one unit and there is a strong esprit de corps among its members, though it is divided into sections for the sake of convenience. The members of the Council engaged in executive work accept the decisions of the sections contentieux (the Judicial section) as their own and support it in their dealings with the Ministries of Government.

In the case of an internal dispute, the views of the section contentieux finally prevail and instances are not unknown when that section has annulled orders of the Council acting as a whole in administrative matters. The section contentieux of the Conseil d'etat, the judicial organ, is only one of the five sections into which the Council divides itself for the purpose of conducting its business but it comprises more members than the other four put together. Thus in 1953, of the 149 members on the staff of the Council, more than 80 were members of that section. Alone of the five sections, the section du contentieux is divided into sub-sections, nine in number.

Of these, sections.-9 deal with matters of technical and lesser importance like tax cases, disputed elections and claims against the Government arising out of accidents in which Government vehicles are involved. The other four sections deal with the ordinary judicial business. It is very easy to invoke the jurisdiction of the Council. The intervention of an advocate is not necessary and the request or petition may be drafted with extreme informality. The inquisitorial process of the court will be to it that a substantially good case is not unduly prejudiced by the lack of an able advocate.

The procedure followed in the Council is as follows:-

As soon as a petition is received in court it is numbered and is allotted to a particular sub-section, otherwise known as a sous section. Once a case has been assigned to a sub-section, the President of that section assigns it to a rapporteur, usually a junior member of that section. It is the duty of this rapporteur to follow to the end the case assigned to him. He studies the papers and calls for such files and papers as he may find necessary. After gathering the necessary material, he submits a report w

hich summarises the pleadings of the parties, the evidence, the draft order which he proposes and the questions of law and fact which arise in the case. The first part is read out at the final public hearing and thereafter the parties may have their day in court. Counsel for both sides including the Government may address the court. The matter is then discussed between the members of the subsection incharge of the case and another sub-section and the Commissaire du Government is present at the discussion.

After the case has been discussed and the advocates of the parties have made their submissions, the Commissioner who acts as the embodied conscience of the court and is usually a civil servant in the middle rank of the hierarchy sums up the case in open court and sets out the points of law and fact involved, the contentions of the parties and finally suggests a draft order. This he does after the advocates of the parties have had their say. In effect, he charges the members of the court as a judge charges the jury. In view of the fact that the Council is not bound by his views even on questions of law, he might perhaps be more appropriately compared to the Judge-Advocate at a court martial.

Thereafter the sections discuss the matter among themselves and an order is prepared and is given effect to.

It should be noticed that apart from this public hearing, the Council has also resort to what may be called the inquisitorial procedure. Once it is satisfied that the complainant has made out a prima facie case, the court does not insist upon the adversary procedure being followed. It becomes rather the duty of the court to satisfy itself as to the truth of the matter. It carried on correspondence with the Government Department in question, to ascertain the reason for any particular decision which has been taken. Basically the procedure of the court is a written and secret one. All proceedings, except the final public session, take place in private but in the presence of the parties. The filing of documents and interrogatories normally takes the place of examination and cross-examination of witnesses.

As we have already seen, counsel are permitted to appear before the Conseil d'etat. The number so permitted is very small, being limited to 60 and they are the same body of men as those who practise before the court of cassation.

Under the procedure followed by the Council, no surprise is possible as in a witness action tried in the ordinary civil courts.

Normally, before the court renders judgment in a particular case, it takes time for consideration and normally a fortnight is necessary for this purpose. But it is very rarely that a judgment is delayed in any case beyond fifteen days.

The law of the Conseil d'etat is unlike the law of the French civil courts which is based upon the civil codes; instead it resembles the English Common Law and has developed from precedent to precedent. Attempts are made by parties to rely on precedents and to distinguish one case from another. The decisions of the Council are published and reported.

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