Administrative Law
6 Introduction
Remarkable technological and scientific progress has made the modern democratic State not a mere watch-dog or a police institution but an active participant interfering in almost every sphere of individual and corporate life in society in the changed role of a service state and a welfare state. The growing social consciousness of the age, the increasing complexities of administration and organization, and an incredible rise in the pace of life caused by the manifold application of science and technology to the habits of life, are the three major influences responsible for the growth and expansion of the administrative law, the administrative technique and the administrative process. The growth of the Executive Branch, which now wields vast power and touches almost every aspect of daily life, heightens the concern that it may slip from the Executive's control, and thus from that of the people.
6.1 Administrative Law–Meaning, Scope and significance
Administrative law involves the study of how those parts of our system of government which are neither legislatures nor courts make decisions. These entities are administrative agencies, which are usually located in the executive branch of government and charged with the day–to–day details of governing. These agencies are created and assigned specific tasks by the legislature. These tasks are carried out by the agencies by making decisions of various sorts and supervising the procedures by which the decisions are carried out. Administrative law is the contemporary expression of the tendency toward absolute power - toward consolidated power outside and above the law. An aim of most of these efforts has been to make the administrative state function in a matter more compatible with our democratic commitments. Administrative law has a dual purpose: to improve the quality, efficiency and effectiveness of government decision making generally; and to enable people to test the lawfulness and the merits of decisions that affect them. A person whose interests are affected by a government (or administrative) decision can challenge that decision in a court, an administrative tribunal, or through an investigatory agency/ Ombudsman. This provides a mechanism for achieving justice in individual cases by enabling people to test the lawfulness and the merits of decisions that affect them. Through the provision of feedback to decision makers, it improves the quality of government administration; and provides a mechanism for ensuring that the government acts within its lawful powers. It thus contributes to the accountability system for government decision making. Administrative law mechanisms benefit not only government but make for good corporate governance. For the systemic benefits that characterize it - individual justice, good governance, lawfulness and accountability are as critical for private corporations to demonstrate, as they are for government.
Administrative law is a by-product of intensive form of government. During the last century, the role of the government has changed from laissez-faire to paternalism and from paternalism to maternalism. Under the force of globalization, the role of governments is fast changing and a government is seen more as an enabler, facilitator and regulator than as mere provider. Today the expectation from the government is not only that it will protect its people from external aggression and internal disturbance, but also that it will take care of its citizens from the cradle to the grave. Therefore, the development of administrative process and the administrative law has become the cornerstone of modern political philosophy.
6.3 Administrative Law-Definition
The administrative law goes beyond legalism and represents a principled regulation of administrative space, whether domestic or global, which can be practically regulated for the expansion of human freedoms. Administrative law, therefore, becomes that body of reasonable limitations and affirmative action parameters which are developed and operationalised by the legislature and the courts to maintain and sustain a rule of law society. The basic purpose of administrative law is to check abuse of administrative power as power corrupts and absolute power corrupts absolutely; to protect citizens from unauthorized encroachment on their rights and interests and ensure that they get an impartial determination of their disputes by officials; and to make those who exercise public power accountable to the people.
Administrative law may as be defined that branch of public law which deals with the organization and powers of administrative and quasi-administrative agencies and prescribes principles and rules by which an official action is reached and reviewed in relation to individual liberty and freedom.
According to Jain and Jain, administrative law deals with the structure, powers, and functions of the organs of administration, the limits of these powers, the methods and procedures followed by them, and the methods by which their powers are controlled, including legal remedies available to those whose rights are infringed. It essentially covers how administrative bodies are organized, what they can do, how they do it, and how their actions can be challenged.
Administrative law deals with the powers and duties of administrative authorities, the manner in which the powers are exercised and the remedies which are available to the aggrieved persons, when those powers are abused by these authorities. For a variety of reasons, the administrative process has become a necessary evil in all progressive societies, especially in welfare states where the government prepares and oversees numerous programmes for the advancement of society.
It is not feasible to have a precise definition of administrative law which can cover the entire range of administrative process.
“Administrative Law is made up of all these legal rules whether formally expressed by statutes or implied in the prerogative which have as their ultimate object the fulfillment of public law. It touches, first the legislature, in that the formally expressed rules are usually laid down by that body; it touches judiciary, in that (a) there are rules which govern the judicial action that may be brought by or against administrative persons, (b) administrative bodies are sometimes permitted to exercise judicial powers; thirdly, it is of course essentially concerned with the practical application of the Law.”
Administrative law besides touching all branches of government, touches administrative and quasi-administrative agencies, i.e. Corporations, Commissions, Universities and sometimes even private organizations. Furthermore, administrative law is made up not only of legislative and executive rules and a large body of precedents but also of functional formulation, for every exercise of discretion forms a rule for future action.
6.4 Reasons for growth of Administrative Law
Due to phenomenal rise in the activities of the State, very wide powers are being exercised by the executive. Apart from pure administrative and executive functions, it is also exercising legislative functions by way of delegated legislation, and formulating a plethora of rules, regulations, bye-laws, notifications, etc. which are substantially affecting the rights of the public at large. Because of limitation of time, the technical nature of legislation, the need for flexibility, experimentation and quick action, the traditional legislative organs cannot pass that quality and quantity of laws which are required for the functioning of a modern government. It is said, perhaps rightly, that even if our Parliament sits all the twenty-four hours and all the 365 days in a year, it cannot possibly pass all the laws needed by the government today. Therefore, there has been inevitable growth of administrative legislative process.
Similarly, the administrative authorities are also exercising judicial powers for adjudication of disputes through a number of Administrative Tribunals. Provisions have been made in various statutes taking away jurisdiction of competent courts and virtually conferring blanket powers on these tribunals.
The inadequacy of the traditional type of courts and law-making organs to give that quality and quantity of performance which is required in the twentieth century for the functioning of a welfare and functional government is the biggest single reason which has led to the growth of administrative process and law. Furthermore, the traditional administration of justice is technical, expensive and dilatory. It is unworkable where the subject-matter is dynamic and requires not only adjudication but development also, as in the cases of industrial disputes. Therefore, in cases where the need is fair disposition and not merely disposition on file, administrative adjudicatory process seems to be the only answer.
Over and above quasi-legislative and quasi-judicial powers, administrative authorities also possess wide discretionary powers. Under various preventive detention laws, they have been empowered to detain and arrest, citizens and subjects even without trial depriving them of their freedom and liberty. It also cannot be disputed that there is a tendency of abuse and misuse of power on the part of the officers.
Taking into account these wide powers of the executive, Lord Denning rightly observed, “Properly exercised the new powers of the executive lead to the Welfare State; but abused they lead to the Totalitarian State.” If proper controls and safeguards are not provided, the public at large would be prejudicially affected. It is, therefore, necessary that administrative law should clearly define and demarcate powers of these authorities, lay down guidelines and principles for exercise of those powers, prescribe procedure for such exercise and provide remedies to the aggrieved parties. In other words, the main object of the study of administrative law is to find out the way in which these administrative authorities could be kept within their limits so that the discretionary powers may not be turned into arbitrary and un-channelized powers.
6.5 Dicey on Administrative Law
Rule of law is basically a principle of government. The phrase “Rule of Law”, has been derived from Latin phrase La Legalite, which connotes government on principles of law and not of men. A state where rule of law is “protected and promoted” is also taken to be a state where people are assured of their basic rights. On the other hand, by ignoring the Rule of Law, a nation acts arbitrarily, capriciously, and discriminatorily.
The doctrine of the rule of law forms the entire basis of administrative law. The doctrine was propounded by Sir Edward Coke CJ which was later developed by A. V. Dicey in his classic book The Law and the Constitution published in the year 1885. Dicey endorsed the following three meanings to the said doctrine:
1. Supremacy of law;
2. Equality before law; and
3. Judge-made Constitution.
By Supremacy of law, he meant the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power. It excludes the existence of arbitrariness or even of wide discretionary authority on the part of the government. The second principle means, equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary courts.
He criticized the French legal system of droit administrative in which there were separate Administrative Tribunals for deciding cases between the officials of the State and the citizens. According to him, providing the special tribunals for resolution of disputes of civil servants was the negation of equality.
Lastly, the general principles of the constitution are the result of judicial decisions of the courts. The Constitution is not the source but the outcome of the rights of the individuals. Dicey emphasized that the courts of law are guarantors of liberty. according to him rights would be better secured if they were enforceable in the courts of law and mere declaration of those rights in a document is not sufficient. In the latter case, they can be ignored, curtailed or trampled upon.
Notwithstanding the fact that rule of law had gained acceptance even prior to Dicey, there is denying the fact that it was only after Dicey that Rule of Law could become popular.
The broad principles of Dicey’s rule of law have been accepted in several legal systems as a “necessary constitutional safeguard”. But it has its own limitations as well. Firstly Dicey equated supremacy of law with absence of not only arbitrary powers but even of discretionary powers. He failed to distinguish between arbitrary power and discretionary power. No modern welfare state can work effectively without exercising discretionary powers. The arbitrary power is inconsistent with the concept of rule of law, but discretionary power is not, if it is exercised properly.
Dicey misunderstood the real nature of droit adminstratif and carried a wrong impression that these administrative tribunals conferred on government officials special rights, privileges and prerogatives as against private citizens. The French system has proved to be more effective in controlling abuse of administrative powers than the common-law system.
6.6 Delegated Legislation
In present times, in all democratic countries only a very small portion of the entire legislative output today comes directly from the legislature. Fast changing scenario of economic social order with scientific development spawns innumerable situations which the legislature possible could not foresee. These circumstances generate the need for more and more laws. Thus bulk of the legislation in present circumstances is promulgated by the executive and is known as Delegated or subordinate Legislation. Such legislation is made by a body by virtue of the powers conferred on it by a statute. Usually the legislature enacts a statute covering only the general principles and policies relating to the subject-matter in question, and confers rule-making powers on the government, or some other administrative agency, to fill in the details. Today the instrument of delegated or subordinate legislation is used as a major component of the method of modern government. Today so extensive is its use, that there is no statute enacted by the legislature which does not delegate some legislative power to the executive.
Delegated legislation has been defined by Salmond as “that which proceeds from any authority other than the sovereign power and is therefore dependent for its continued existence and validity on some superior or supreme authority”. The phrase "delegated legislation" can refer to either: (i) the exercise of legislative power delegated by the legislature by a subordinate agency (a delegate of the legislature); or (ii) the subsidiary rules themselves that are the direct result of the subordinate agency's exercise of the power described in (i). The term often used in India is ‘subordinate legislation’; it conveys the idea that the authority making the legislation is subordinate to the legislature and derives its powers from it.
Delegated legislation suffers from several defects as well. To some extent, it does entail the legislature giving up its role and the administration gaining more authority. It amounts to transfer of power from legislature to bureaucracy. The legislature cannot delegate its primary legislative functions of determining or laying down the legislative policy and of formally implementing that policy into a binding rule of conduct. What is permitted is the delegation of ancillary or subordinate legislative function, or, what is fictionally called, a power to fill up the details. Many a time, the legislature passes Acts in “skeleton” from containing only the barest of general principles and thus leaves to the executive the task of not only laying down “details” but even that of formulating and determining principles and policies. The legislature often uses wide, subjectively worded provisions, giving power to the delegate to make such rules as appear to it to be “necessary” or “expedient” for the purposes of the Act without specifying any criteria or standards to direct the delegate's judgement, and the delegate is given free reign to create any rules it desires.
In St. Johns Teachers Training Institute v. Regional Director, NCTE, (2003) 3 SCC 321, 331 (Para 10): AIR 2003 SC 1533, the Supreme Court has observed:
“The power to make subordinate legislation is derived from the enabling Act and it is fundamental that the delegate on whom such a power is conferred has to act within the limits of authority conferred by the Act. Rules cannot be made to supplant the provisions of the enabling Act but to supplement it. What is permitted is the delegation of ancillary or subordinate legislative functions, or, what is fictionally called, a power to fill up details. The legislature may, after laying sown the legislative policy confer discretion on an administrative agency as to the execution of the policy and leave it to the agency to work out the details within the framework of policy. The need for delegated legislation is that they are framed with care and minuteness when the statutory authority making the rule, after coming into force of the Act, is in a better position to adapt the Act to special circumstances. Delegated legislation permits utilization of experience and consultation with interests affected by the practical operation of statutes. Rules and regulations made by reason of the specific power conferred by the statues to make rules and regulations establish the pattern of conduct to be followed. Regulations are in aid of enforcement of the provisions of the statue. The process of legislation by departmental regulations saves time and is intended to deal with local variations and the power to legislate by statutory instrument in the form of rules and regulations is conferred by Parliament. The main justification for delegated legislation is that the legislature being overburdened and the needs of the modern-day society being complex, it cannot possible foresee every administrative difficulty that may arise after the statue has begun to operate. Delegated legislation fills those needs. The regulations made under power conferred by the statue and supporting legislation and have the force and effect, it validly made, as an Act passed by the competent legislature.”
6.7 Need for Administrative rule-making
1. In modern welfare and service State is not possible without the technique of delegation to give the quantity and quality of law required to govern the state. Even if the Parliament sits all the 365 days in a year and all the 24 hours, it may not be able to give the amount of rules required for the proper functioning of a modern government. Consequently, it is imperative that rule-making authority be delegated.
2. Technical nature of legislation -Today, legislation has become highly technical because of the complexities of a modern government. Legislators lack legal and technical skills; therefore, it is suitable for the legislature to lay down the policy and guidelines only, and leave the process of detailing to the experts in the field.
3. Ordinary legislative process lacks experimentation- A law passed by legislature has to be in force till the next session for any modification. Therefore, administrative rule-making is the only solution in situations which require frequent changes and experimentation.
4. Emergency situations- Emergency situations where immediate legislation is needed to meet crisis situations, administrative rule-making is a necessity as ordinary law-making process is hyper-technical and involves delay.
5. In some situations it is necessary that the law must not be known to anybody till it comes into operation. Secrecy needs to be maintained which can be achieved only through administrative action because the ordinary legislative process is always very open.
6. Administrative rule-making is a more convenient and effective way and provides direct participation by those who are governed.
6.8 Control over Delegated Legislation
The power of delegated legislation is in no way of less significance than the power of the legislature to legislate, for it affects the rights of the people just as vitally as legislation by a legislature. There is danger involved in enacting measures without public debate or consultation. It, therefore, becomes necessary to evolve proper safeguards to minimize the feeling of insecurity and distrust generated from an apprehension that the government may misuse its powers of delegated legislation, to ensure that the statutory powers are exercised and statutory functions performed properly and that the government is not able to capriciously injure private rights of person on property. As a result, the focus has now shifted from desirability of delegated legislation to that of its control and safeguards. The question to-day is not whether there should be delegated legislation, but subject to what safeguards, it should be resorted to.
The controls over delegated legislation operate at two levels. First, when the power to legislate is delegated by the legislature. This raises the question of how much authority the legislature should be permitted to delegate?. Should there be limitations on the legislature's ability to assign any legislative authority to the administration, or should it have unrestricted authority to delegate any amount of legislative power on the Administration? Secondly, control mechanism operates at the point of exercise of delegated legislative power by the Administration. The question here is subject to what limitations and safeguards should the delegate have while using the legislative authority that has been granted to them? What control mechanism ought to be in place to reduce the risks associated with the technique of delegated legislation?
6.9 Constitutionality of administrative rule-making or delegated legislation
‘Constitutionality of administrative rule-making’ means the permissible limits of the Constitution of any country within which the legislature, which as the sole repository of law-making power, can validly delegate rule-making power to other administrative agencies.
In re Delhi Laws Act, the Supreme Court has reached the following conclusions:
1. “The legislature must normally discharge its primary legislative function itself and not throw them on others.
2. Once it is established that it has sovereign powers within a certain sphere, it must follow as a corollary that it is free to legislate within that sphere in any way which appears to it to be the best way to give effect to its intention and policy in making a particular law, and that it may utilize any outside agency to any extent it finds necessary for doing things which it is unable to do itself or fins it inconvenient to do. In other words it can do everything which is ancillary to any necessary for the full and effective exercise of its power of legislation.
3. It cannot abdicate its legislative functions, and therefore while entrusting power to an outside agency, it must see that such agency, acts as a subordinate authority and does not become a parallel legislature.
4. The doctrine of separation of powers and the judicial interpretation is part of the American Constitution, enables the American Courts to check undue and excessive delegation. But the Courts of this country are not committed to that doctrine and cannot apply it in the same way as it has been applied in America. Therefore, there are only two main checks in this country on the power of the legislature to delegate, these being its good sense and the principle that it should not cross the line beyond which delegation amounts to ‘abdication and self-effacement’.”
The Delhi Laws Act case thus achieved two ends: (1) it validated delegation of legislative power by the legislature to administrative bodies; and (2) it imposed an outer limit on legislature's ability to delegate legislative authority.
6.10 Control over Delegated legislation
The control mechanism of administrative rule-making comprises three components, namely, parliamentary control, procedural control and judicial control.
(B) Parliamentary Control
The power is legislate is delegated by the Parliament. Thus, the administrative rule-making is subject to the supervision of Parliament. First Control is exercised at the time of passing the enabling Act. Second control is exercised at the time of scrutinising delegated legislation.
1. Direct general control
(a) Through debate discuss anything about delegation including necessity, extent, type of delegation and the authority to whom power is delegated;
(b) Through questions and notices. Ask questions on any aspect of delegation if dissatisfied can give notice for discussion under Rule 59 of the Procedure and Conduct of Business in Lok Sabha Rules;
(c) Moving resolutions and notices if the matter regarding delegation of power is urgent and immediate, and reply of the government is unsatisfactory;
(d) Vote on grant. Whenever the budget demands of a ministry are presented any member may propose a cut and thereby bring the exercise of rule-making power by that ministry under discussion;
(e) A private member’s Bill seeking modifications in the parent Act or through a debate at the time of discussion on the address by the President to the joint session of Parliament
2. Direct special control
Direct special control is exercised through the technique of ‘laying’ on the table of the House rules and regulations framed by the administrative authority. The purpose of laying to inform the legislature, which has delegated the power, the rules formulated in exercise of that power.
‘Laying’ may take various forms:
(a) Laying with no further direction or simple laying. - The rules and regulations in this sort of laying take effect immediately upon their laying. Its sole purpose is to apprise the House of the rules and regulations.
(b) Laying subject to negative resolution – In this process the rules come into effect as soon as they are placed on the table of the House but shall cease to have effect if annulled by a resolution of the House.
(c) Laying subject to affirmative resolution. – This technique may take two shapes:
(i) that the rules shall have no effect or force unless approved by a resolution of each House of Parliament;
(ii) that the rule shall cease to have effect unless approved by an affirmative resolution.
In both these processes, it is the duty of the government to move a resolution.
(d) Laying in draft subject to negative resolution. – This type of laying the draft rules shall be placed on the table of the House and shall come into force after specified days from the date of laying unless disapproved before that period.
(e) Laying in draft subject to an affirmative resolution. - ¬In this type of laying the instruments or draft rules shall have no effect unless approved by the House.
3. Indirect control
Parliament exercises this authority through its committees. To examine delegated legislation and bring to the notice of the House whether administrative rule-making has exceeded the intention of Parliament or has departed from it or has affected any fundamental norm or principle. On December 1, 1953, the Committee on Subordinate Legislation of the Lok Sabha was established. The Committee consists of 15 members nominated by the Speaker of a period of one year. The Speaker appoints the Chairman from among the members. If the Deputy Speaker happens to be a member then be shall act as Chairman. The Committee has the power to appoint sub-committees and may refer any matter for its consideration. There is also a similar Committee of the Rajya Sabha which was constituted in 1964. It discharges functions similar to the Lok Sabha Committee.
(2) Procedural control
It is acknowledged that parliamentary control over administrative rule-making is weak due to legislators’ lack of legal expertise. A constant search, therefore, is on for an alternative mechanism which, besides providing effective vigil over administrative rule –making, can guarantee effective people participation for better social communication, acceptance and affectivity of the rules.
Procedural control specific audit of rules by those for whose consumption they are made. Procedural control mechanism operates in three components:
1. Drafting.
2. Antenatal publicity
3. Consultation
4. Post-natal publicity
The drafting of delegated legislation by an expert draftsman who can advise whether the proposed rules and regulations are intra vires is a valuable safeguard. In India due to absence of this safeguard, poorly drafted rules, in many situations, create great hardship for the people by increasing avoidable litigation.
6.11 Antenatal publicity
In India there is no separate law governing the procedure of administrative rule-making, and the parent Act may or may not provide for procedural requirement. Nonetheless, the parent Acts have occasionally provided for antenatal publicity. Where it was provided that the rules must first be published in draft form to give an opportunity to the people to have their say in the rule-making.
2. Antenatal publicity required by the enabling Act attracts the application of Section 23 of the General Clauses Act, 1897 which requires:
(i) That the rules be published in draft form in the Gazette.
(ii) That objections and suggestions by invited by a specific date mentioned therein.
(iii) That those objections and suggestions be considered by the rule-making authority.
It may however be noted that the procedure prescribed in the General Clauses Act, 1897 applies only to rules, regulations and bye-laws and the administrative rule-making appearing under and other name is not governed by it.
3. Consultation- In India there is no general law which provides for prior consultation with affected persons before rules and regulations are framed by administrative authorities. However, occasionally the enabling Act itself includes the requirement of previous consultation. Such a provision if contained in the enabling Act is considered as mandatory and its violation is visited with the invalidity of rules. If the prior consultation has not been made mandatory by the parent Act, failure to consult will not affect the validity of the rules. Prior consultation shall be considered mandatory when some consequences are provided in the absence of such consultation.
4. Publication. It is always mandatory to publish the rules and regulations formulated by the executive to bring it to the notice of the public. In a landmark decision in the case of Harla vs State of Rajasthan AIR 1951 SC 467, the Supreme Court on the aspect of publication of laws, has held that a law cannot be validly enforced unless it's properly brought to the public's notice. In this case the Jaipur Opium Act, 1923, under which petitioner was convicted, was declared invalid as it was never promulgated or published.
Judicial Control- Independent judiciary has the power to declare delegated legislation intra vires or ultra vires depending on whether subordinate legislation is in line with the Constitution or the enabling Act or not.
Implied limitations- laying down policy and enacting that policy into a binding rule of conduct, as laid down in Re Delhi Laws Act case 1951 S.C. 332. act as an implied limitation on the power of legislature in the matter of delegation of legislative power.
Express limitations- Invalidity of the rules and regulations may also arise if the enabling Act violates the express limits prescribed by the Constitution. No legislature has competence to violate the scheme of distribution of power given in the Constitution, or to give its law extraterritorial applicability or violate the provision of the commerce clause, or violate the provisions of Part III of the Constitution.
The delegated legislation can be challenged on the ground of substantive ultra vires in the following circumstances:
▪ Where parent Act is unconstitutional;
▪ Where parent Act delegates essential legislative functions;
▪ Where delegated legislation is inconsistent with parent Act;
▪ Where delegated legislation is inconsistent with general law;
▪ Where delegated legislation is unconstitutional;
▪ Where delegated legislation is arbitrary;
▪ Where delegated legislation is unreasonable;
▪ Where delegated legislation is malafide;
▪ Where delegate further delegates (sub-delegation);
▪ Where delegated legislation excludes judicial review; and
▪ Where delegated legislation operates retrospectively.
6.12 Administrative Tribunals
Today bulk of decisions affecting private individuals is not coming from the courts but from administrative authorities exercising adjudicatory functions. Tribunals are bodies established for discharging judicial or quasi-judicial duties. An administrative tribunal is established through a statute and invested with judicial powers. The tribunals have power to decide disputes relating to special mattes which have been statutorily conferred. A tribunal possesses some of the trappings of a court. It is usually a part of the executive branch of the state, performing both executive and judicial functions.
6.13 Need for Tribunalisation
According to classic theory of separation of power, the function of resolving disputes is to be performed by the courts. However, rapid increase in governmental functions has led to increase in administrative adjudication. The traditional courts overloaded with cases are unable to give timely resolution of disputes. The traditional judicial system is costly, complex and formalistic. As it is already overburdened, speedy resolution of disputes could not be expected. The objective of creating quasi-judicial bodies is to reduce caseload of the judiciary and bring in subject expertise for technical matters. Tribunals seek to provide simple, speedier, cheaper and accessible justice than regular courts.
Courts strictly apply legal principles; however, in modern society there are complex questions which cannot be decided only on basis of legal principles. Courts are manned by personnel who are expert in law. But in administrative matters many a times expertise in specific field is also required. Tribunals are often manned by experts in their respective fields. This facilitates them to make informed decisions which require technical understanding in the relevant area, such as taxation, environmental law, or intellectual property. Many times there are situations which require quick and firm action, otherwise the interests of-the people may be at risk. These administrative authorities can take preventive measures and take steps to enforce these preventive measures like suspension, cancellation of licenses, etc. In many cases, these preventive measures are more effective than punishing a person. Tribunals are not bound by rigorous procedural requirements and follow principles of natural justice and summary procedure. They are not bound by the elaborate rules of evidence or procedures governing the ordinary courts. Thus there is less procedural delay; whereas the courts are bound by onerous procedures, causing delay and pendency.
6.14 Characteristics of a tribunal
An administrative tribunal is established through a statute, thus have a statutory origin. These are invested with judicial powers. The tribunals have power to decide disputes relating to special mattes which have been statutorily conferred. A tribunal possesses some of the trappings of a court. It is usually a part of the executive branch of the state, performing both executive and judicial functions. As these administrative tribunals are invested with judicial powers of the state, they perform the judicial and quasi-judicial functions. Thus they are bound to act judicially as distinguished from pure administrative or executive functions. They are not bound by strict rules of evidence and procedure. These tribunals are independent and are not subject to any administrative interference in discharge of their functions.
6.15 History of tribunalisation
Part XIVA of the Constitution was inserted through Section 46 of the Constitution (42nd Amendment) Act, 1976 with effect from March 1,1977. It inserted two provisions, Articles 323A and 323B in Indian Constitution. The objective was to create tribunals in the country in the interests of a more effective and expeditious method of delivery of justice. The purpose of insertion of Part XIV A in the Constitution was "to minimize the mounting arrears in High Courts and to ensure the speedy disposal of service matters, tax matters and certain other matters of special importance in the light of the socio-economic development. The amendment provided for exclusion of jurisdiction, powers and authority of all courts, except the Supreme Court under article 136, with respect to all or any of the matters falling within the jurisdiction of the proposed tribunals.
Article 323A(1) provides for adjudication or trial by administrative tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to the Public Service and posts in connection with the affairs of the Union or of any state, local or other authority within the territory of India or under the control of the Government of India or of any corporation owned or controlled by the government and for matters connected therewith or incidental thereto.
In exercise of the power conferred by Clause (1) of Article 323A of the Constitution, Parliament enacted the Administrative Tribunals Act, 1985. The Act was enacted because a large number of cases relating to service matters were pending before various Courts. It was expected that "the setting up of such Administrative Tribunals to deal exclusively with service matters would go a long way in not only reducing the burden of the various courts and thereby giving them more time to deal with other cases expeditiously but would also provide to the persons covered by the Administrative Tribunals speedy relief in respect of their grievances."
The Act thus gives practical shape to the provisions of Article 323A (2). The Act provides for the establishment of administrative tribunals namely Central Administrative Tribunal (CAT); State Administrative Tribunal (SAT) and Joint Administrative Tribunal (JAT) for two or more states if they so desire. The power to establish the SAT and JAT is given to the Central Government on receipt of the request by a state or states in this behalf. These tribunals do not constitute a hierarchy of administrative tribunals, and, therefore, no appeal would lie from SAT and/or JAT to the CAT. They are entrusted with different jurisdiction, powers and authority in recruitment and service matters. The CAT deals with All India Services while SAT and JAT have jurisdiction over state services only. There are 19 Benches and 19 Circuit Benches in the Central Administrative Tribunal all over India. Under section 14 (2) of the Administrative Tribunals Act, 1985, 215 organizations including Ministries and Departments of Central Government have been notified by Government of India, to bring them within the jurisdiction of the Central Administrative Tribunal.
The Constitutional validity of the Act was Challenged in S.P. Sampath Kumar v. Union of India, (1985)4SCC458
The Supreme Court in this case held that though judicial review is a basic feature of the Constitution, the vesting of the power of judicial review in an alternative institutional mechanism, after taking it away from the High Courts, would not do violence to the basic structure so long as it was ensured that the alternative mechanism was an effective and real substitute for the High Court. Using this theory of effective alternative institutional mechanisms as its foundation, the Court proceeded to analyse the provisions of the Act in order to ascertain whether they passed constitutional muster. The Court came to the conclusion that the Act, as it stood at that time, did not measure up to the requirements of an effective substitute and, to that end, suggested several amendments to the provisions governing the form and content of the Tribunal.
The suggested amendments were given the force of law by an amending Act of 1987 after the conclusion of the case.
Later in the case of L. Chandra Kumar v Union of India AIR 1997 SC 1125 a 7-judge bench of the Supreme Court concluded that, according to Articles 226 and 227, the right of the High Courts to exercise judicial superintendence over the judgments of all courts and tribunals is part of the constitution's basic structure. It also claimed that "all Tribunals ' decisions, whether created pursuant to Article 323A or Article 323B of the Constitution, shall be subject to the written jurisdiction of the High Court’s pursuant to Article 226 of the Constitution, before a High Court Division Bench under whose territorial jurisdiction the specific tribunal falls."
6.16 Endnotes
1. I.P. Massey, Administrative Law, 9th Edition, Eastern Book Company, Lucknow, 2017, p. 1-5
2. Jain M. P. and S.N. Jain, Principles of Administrative Law, 8th Edition, LexisNexis, Butterworth & Wadhwa and Company, Nagpur, 2017
3. P J Fitzgerald, Salmond on Jurisprudence, 17th Edn., p. 116
4. Statement of Object and Reasons, The Constitution (42nd Amendment) Act, 1976
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