ACTIVE LEARNING

Title of the Subject:

Submitted by
URVI SHARMA
(SF0121062)
Third Year, B.A.LLB (Hons.)
(Sixth semester)

FACULTY IN-CHARGE- Ms. Kangkana Goswami

National Law University and Judicial Academy, Assam

Answer

INTRODUCTION

The fundamental tenet of the notion of separation of powers is that the roles performed by the
various branches of government are distinct from one another and do not overlap. The division
of responsibilities and powers between the legislative, executive, and judicial branches is
known as the "separation of powers." These three branches of the Indian government—the
legislative, the executive, and the judiciary—share authority and responsibility. This doctrine
ensures that authority does not combine.
The Rule of Law refers to the supremacy of the law in and of itself as well as the institutions
of the legal system within a governing framework. The transformational metamorphosis refers
to the evolution of governance systems from mere adherence to the rule of law towards the
institutionalization of the separation of powers.
The theory known as the concept of operation of power holds that the optimal conditions for a
government to function are those in which its powers are distributed among several parts rather
than being vested in a single authority. Many countries have accepted this idea, however, it is
not strictly adhered to. The United States was the first to embrace it. To understand the
transition of the rule of law to the doctrine of separation of power, we first need to understand
the development of the rule of law and then understand the emergence of separation of power
from that doctrine.

RULE OF LAW

The most fundamental need for the Rule of Law is that those in positions of authority should
not use their authority in an arbitrary, ad hoc, or discretionary manner based on their ideologies
or preferences, but rather within the restraints of established public standards. The government
must always behave within the bounds of the law and be held legally responsible if it is
suggested that people in positions of authority have taken action without authorization.
The concept of the Rule of Law has long been a cornerstone of our political heritage, spanning
millennia. To fully grasp and assess contemporary interpretations of this principle, it's essential
to delve into its rich historical lineage. This lineage can be traced back to ancient times,
beginning with Aristotle around 350 BC. Medieval scholars like Sir John Fortescue in 1471
contributed by delineating the distinctions between lawful and despotic forms of governance.
The discourse continued through the early modern period with the works of thinkers such as
John Locke in 1689, James Harrington in 1656, and even Niccolò Machiavelli in 1517. The
Enlightenment period further enriched this discourse, with seminal contributions from
Montesquieu in 1748 and others across Europe.1 In American constitutional thought, pivotal
texts like The Federalist Papers and the writings of their critics played a significant role. In
more recent times, British thinkers like A. V. Dicey in 1885, F.A. Hayek in 1944, 1960, and
1973, Michael Oakeshott in 1983, Joseph Raz in 1977, and John Finnis in 1980 have
contributed significantly. In the American context, scholars such as Lon Fuller in 1964, Ronald
Dworkin in 1985, and John Rawls in 1971 have also made notable contributions.

MONTESQUIEU

Montesquieu's contributions to the understanding of the Rule of Law are most renowned for
his advocacy of the separation of powers, notably emphasizing the need to separate judicial
authority from executive and legislative functions2. He argued that the judiciary must maintain
its independence to interpret and apply laws without undue influence from lawmakers and
policymakers.

In addition to his views on the separation of powers, Montesquieu expounded on the

1
Fowler , R. (2023) The Rule of Law: Origins, Meaning and Endangerment, TENNESSEE BAR ASSOCIATION.
Available at: https://www.tba.org/?pg=Articles (Accessed: 19 April 2024).

2
Waldron, J. (2016) The rule of law, Stanford Encyclopedia of Philosophy. Available at:
https://plato.stanford.edu/entries/rule-of-law/ (Accessed: 29 April 2024).
“When the legislative and executive powers are united in the same person, or in the same body
or magistrates, there can be no liberty. Again, there is no liberty if the judicial power is not
separated from the legislative and executive powers. Where it joined with the legislative power,
the life and liberty of the subject would be exposed to arbitrary control, for the Judge would
then be the legislator. Where it joined with the executive power, the Judge might behave with
violence and oppression. There would be an end of everything, were the same man or same
body, whether of the nobles or of the people, to exercise those three powers, that of enacting
laws, that of executing the public resolutions, and of trying the causes of individuals.”

Montesquieu also argued against conflating principles of civil law with principles of political
governance. He asserted that civil rights, particularly those about private law, are vital
safeguards for property rights. Neglecting civil rights in favour of political regulation can lead
to economic impoverishment as confidence erodes, and incentives for production diminishes.
In the modern era, echoes of Montesquieu's doctrines can be heard, particularly his assertion
that matters governed by civil law should not be subject to political interference Albert Venn
Dicey, writing in the late 19th century, lamented a perceived decline in respect for the Rule of
Law in England. He emphasized the principle of legal equality, asserting that no individual,
regardless of status, is exempt from the law's jurisdiction. Dicey viewed the Rule of Law as a
hallmark of English governance, distinguishing it from executive dominance seen in France
and the abstract constitutionalism found in other countries like Belgium.

“When the legislative and executive powers are united in the same person, or in the same body
or magistrates, there can be no liberty. Again, there is no liberty if the judicial power is not
separated from the legislative and executive powers. Where it joined with the legislative power,
the life and liberty of the subject would be exposed to arbitrary control, for the Judge would
then be the legislator. Where it joined with the executive power, the Judge might behave with
violence and oppression. There would be an end of everything, were the same man or same
body, whether of the nobles or of the people, to exercise those three powers, that of enacting
laws, that of executing the public resolutions, and of trying the causes of individuals.”
 CONCLUSION
In conclusion, the separation of powers among the three branches of government in India stands
as a cornerstone of its democratic framework, ensuring a system of checks and balances that
fosters accountability, transparency, and the protection of citizens' rights.

The legislative branch, represented by the Parliament at the national level and State
Legislatures at the state level, holds the authority to enact laws, scrutinize the executive's
actions, and represent the diverse interests of the populace. Through its bicameral structure and
robust parliamentary procedures, it acts as a forum for debate, consensus-building, and
lawmaking.

The executive branch, led by the President at the national level and the Governor at the state
level, is responsible for implementing and administering laws, managing public affairs, and
safeguarding national interests. While the Prime Minister and Chief Ministers wield
considerable executive powers, they are accountable to the legislature and subject to its
oversight.

The judicial branch, embodied by the Supreme Court at the apex and the High Courts at the
state level, serves as the guardian of the Constitution, ensuring its supremacy and interpreting
its provisions. Through the power of judicial review, courts have the authority to strike down
laws and government actions that violate constitutional principles, thus upholding the rule of
law and protecting individual rights.

Together, these three branches form a delicate equilibrium, preventing any single entity from
monopolizing power and acting arbitrarily. Their interdependence, coupled with the
mechanisms of checks and balances, serves as a bulwark against tyranny, promoting
democratic governance and the rule of law in India. As the nation continues to evolve, the
enduring commitment to the separation of powers remains essential in preserving the
democratic fabric and fostering inclusive progress for all its citizens.
QUESTION NO 2
Explain the interplay of checks and balances in droit administration and a detailed analysis
of its evolution.
Answer
INTRODUCTION

To answer the question, we need to understand the meaning and history of droit
administratif."Droit administratif" in French law refers to the body of law that governs the
organization, powers, and activities of administrative authorities, as well as the legal
relationships between these authorities and individuals or other entities. Its origins can be
traced back to the development of the administrative state in France during the 17th and 18th
centuries.

It encompasses the rules governing the organization, powers, and responsibilities of public
administration, as well as its interactions with citizens. Napoleon Bonaparte is credited as its
founder, establishing the Conseil d'État and limiting law courts' jurisdiction over administrative
matters through ordinances. Waline, a French jurist, delineated three fundamental principles of
droit administratif:
1. The administration's authority to act independently and enforce decisions directly on
individuals;
2. The authority must operate within legal boundaries safeguarding individual liberties
against administrative arbitrariness;
3. The existence of specialized administrative jurisdiction.
This framework ensures independent review of administrative actions. The Conseil d'État,
comprising distinguished civil servants, adjudicates various issues including claims for
damages against government officials, tax matters, pensions, election disputes, and civil
servants' claims against the State. It intervenes in administrative orders based on legal errors,
jurisdictional issues, procedural irregularities, and abuse of power. Its jurisdiction is exercised
liberally, promoting fairness and accountability in administrative affairs.
 HISTORY AND EVOLUTION

Droit administration, commonly known as a body of public law, delineates the responsibilities
of public administrative entities and helps regulate the administrative interactions between the
State and its citizens. The set of rules established by administrative courts is often associated
with Napoleon Bonaparte. The period surrounding the French Revolution of 1789 was marked
by conflict between traditionalist Bonapartists and reformist Parliaments. The former
advocated for executive supremacy, while the latter favoured the jurisdiction of ordinary courts
exclusively. The transition of authority from pre-revolutionary France to post-revolutionary
France saw the shift from the Conseil du Roi to the Conseil d'État. The Conseil du Roi,
originating from pre-revolutionary France, advised the King on legal and administrative
matters and also exercised judicial functions, including resolving disputes among the nation's
nobles. Over time, during the 16th century, the judiciary began to lose influence to the growing
power of the executive embodied by the Conseil du Roi. The autonomy of the Conseil du Roi
proved detrimental to ordinary courts, as its excessive executive power was gradually curtailed
with the changing atmosphere post-revolution in 1789. The transformative shift following the
revolution included the curtailment of executive power, a change overseen by the principle of
the separation of powers. This led to the dissolution of the Conseil du Roi during Napoleon
Bonaparte's administration, which championed reforms and greater administrative freedom.
This mindset birthed the Conseil d'État in 1799, aiming to streamline administrative
procedures. Over time, the Conseil d'État expanded its purview to include judicial matters.
Despite its intent to mitigate executive dominance over the judiciary, the executive's influence
persisted. Members of the Conseil d'État were appointed through executive decree, subject to
approval by the council of ministers, hindering the judiciary's autonomy. The Arrents Blanco
of 1873 solidified the Conseil d'État's jurisdiction as final in administrative affairs. Any
conflicts between ordinary and administrative courts were to be resolved by the Tribunal des
Conflits, overseen by the Ministry of Justice and comprised of an equal number of judges from
both courts. The evolution of the Conseil d'État was guided by its doctrines, aiming to regulate
excessive administrative actions against citizens.
 SEPARATION OF POWER IN FRANCE

In France, the constitution delineates a clear division of authority among the executive,
legislative, and judicial branches. Notably, the country maintains a distinct set of administrative
courts exclusively dedicated to handling administrative matters. Consequently, administrative
law evolves autonomously, distinct from the mainstream judicial framework. The judiciary
operates independently and adheres to a civil law tradition rooted in the Napoleonic codes. 3In
France, there is no legal process available for addressing complaints against the government.
This is the key area where the British or Common-law system of Administrative Law and the
Droit Administratif differ. However, the Administration's independence from court oversight
does not imply complete power. To oversee itself, the administration has been allowed to
establish its tribunals. Another distinctive aspect of Droit Administratif is the oversight of
administrative functions by administrative tribunals. Droit Administration aims to strike a
balance between the interests of private individuals and the public good. While it upholds and
empowers administrative authorities, it also establishes safeguards to protect individual rights
and civil liberties from potential encroachments by these authorities. Despite the extensive
powers granted to public entities, these powers are not absolute. To safeguard private citizens
from potential abuses by public bodies, administrative courts have implemented two key
limitations on their actions: they must adhere to the law, and they must provide compensation
for any harm they cause. This framework is now recognized for offering stronger protection to
individual rights against potential abuses of power by public administration compared to the
current state of affairs under the Common Law system.

Conseil d 'Etat
Although there are several administrative tribunals in France, the Conseil d'Etat is the most
important one. It is made up of judges with extensive professional backgrounds. A system of
local first-instance tribunals exists. Although this body may not appear to be as impartial and
independent as a regular court on the surface, in reality, the Conseil is rather independent in
practice due to the establishment of specific customs and traditions. The best members of the
French Civil Service make up the Conseil. This administrative tribunal is significant. It serves
as the administrative tribunals' court of appeal. The Conseil controls all tribunals, whether or

3
Vinita Choudhury, Separation Of Powers: A Comparative Study Of India, Usa, Uk And France,
VOL.I, NLIU LAW REVIEW (2010),P.99,(P.119-120)
not they are specialized, and it has the authority to examine administrative tribunal rulings on
legal issues. Due to its role as the primary appellate administrative tribunal, the Conseil has
played a key role in maintaining the coherence of Droit Administratif. This has resulted in a
level of cohesion and independence among tribunals in France that is not typically found in
common law countries, where various tribunals operate without a centralized administrative
appellate body. Additionally, the Conseil serves as the initial court for cases involving "recours
pour excès de pouvoir" against administrative decrees. To further shield administrative
tribunals from interference by ordinary courts, a separate Tribunal des Conflits has been
established. This tribunal determines whether a case should be heard by ordinary courts or
administrative tribunals, with judges and civil servants participating in equal numbers. The
Minister of Justice serves as the President, although they do not often preside over its
proceedings. The Conseil, acting as the primary appellate administrative tribunal, has been
instrumental in preserving the unity of Droit Administratif.

CONCLUSION
The administrative tribunals have outlined two primary restrictions on administrative bodies.
Firstly, these bodies are prohibited from acting contrary to the law. Secondly, they are obligated
to compensate individuals for any injuries they cause. If an administrative action exceeds its
legal authority, the tribunal can invalidate it upon a complaint from the affected individual.
This avenue of recourse is expansive and serves as the most effective means of safeguarding
citizens against abuses of power. The Conseil has the authority to oversee both the form and
substance of administrative decisions, as well as the reasons behind administrative actions.
Regarding claims for damages, individuals can receive compensation for injuries resulting
from administrative actions, regardless of whether the state is at fault. This provision offers
substantial protection to individuals against the injustices of public administration. The Conseil
d'État has been described as both the "defender of civil liberties" and the "guardian of
administrative integrity."