CONSTITUTIONAL LAW

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Compulsions and Constraints of Administrative Justice Against the Backdrop of the Swaran Singh Committee Report
by I.P. Massey *

Cite as : (1976) 3 SCC (Jour) 9

The Swaran Singh Committee has very commendably completed its recommendatory exercises in the restructurization of the Constitution. Though the Committee covered a wide spectrum from the Preamble to Article 368 but for our limited purpose attention is focussed on those recommendations only of the Committee which relate to administrative justice.

The Committee recommends :

1. Administrative tribunals may be set up both at the State level and at the Centre to decide cases relating to service matters. These tribunals shall be constituted under a Central law.

2. Provision may be made for setting up an All-India Labour Appellate Tribunal to decide appeals from Labour Courts and Industrial Courts.

3. Disputes relating to the following matters shall be decided by tribunals :

(i) Any matter concerning revenue or concerning any act ordered or done in the collection thereof.

(ii) Any matter relating to land reforms, ceiling on urban property and procurement and distribution of foodgrains and other essential commodities.

In regard to the matters specified above the writ jurisdiction of the Supreme Court under Article 32 and of the High Court under Article 226 shall be excluded. The relevant statutes governing these matters will also make specific provisions excluding the jurisdiction of courts over such matters. However the right to apply for special leave of the Supreme Court under Article 136 shall remain.

4. No writ shall lie in relation to election matters.

5. Reference to tribunals in Article 227 should be omitted.

6. The words 'and for any other purpose' may be deleted from Article 226.

The logical conclusion from these recommendations is that administrative justice is on the anvil. Therefore, it is the proper time for preparing a balance sheet of the performance of the existing process of administrative justice in India and to consider its compulsions and constraints for the future. Though the recommendations of the Committee are the first step in the right direction in the opinion of any well-informed person, yet it may raise some apprehensions especially in the minds of workers, employers and government servants.

It cannot be denied that so far the performance of administrative justice has not been satisfactory and has failed to inspire confidence in the public. This may perhaps be the reason which prompted the Committee to specifically mention that the persons heading the tribunals must work with fairness and expedition in a manner which may 'inspire public confidence among all concerned'.

Whatever may be the constraints of administrative justice its compulsions are enormous and no progressive country can avoid it because it is an inevitable by-product of any intensive form of government. Our courts gave a very good account of themselves in the pre-independence era when demands on their resources were highly limited but after independence the whole system virtually seemed to be collapsing under the weight of fresh demands unleashed by new imperatives of political independence and consequential socialization of law. Hence, our courts failed to give that quality and quantity of justice which was needed in the changed socio-economic context. In their exercise of bare legalism and pure logic coupled with the traditional lack of sympathy with the positive aims of the government, the courts often missed the true moving spirit behind social and economic laws. Law has a social function to perform and therefore, some of the problems of social and economic restructurization must be solved with that end in view. Technicalities, lack of expertization, delay and expense have further aggravated the situation.

For the inadequacies of the traditional type of justice, administrative justice seems to be the only answer. However, in India administrative justice has so far grown in a haphazard manner and therefore, its problems require restatement at a time when we are at the threshold of a new era of administrative adjudication.

The development of administrative agencies with adjudicatory powers has not followed any set pattern. They have grown, to use Professor Wade's words, 'like mushrooms in the rainy season'. So far, the basic principle of their development has been 'ad hocism'. In matters of qualifications, composition and tenure, they have not followed any conventional pattern. Now when an era of administrative justice is going to be ushered in, it must develop as a 'system'. In this background the Committee has rightly recommended that the tribunals 'should not be single-member tribunals' and that the persons manning the tribunals must be highly qualified, 'possessing special knowledge and experience in the respective fields'. To add further, they must enjoy a status in terms of tenure and service so that they may function with fairness and independence which are necessary, to quote the Committee's words, to 'inspire public confidence among all concerned'.

In view of the fact that the administrative agencies are not bound by the technical rules of evidence and procedure there is a bewildering variety of procedures which these administrative agencies exercising adjudicatory powers follow. Sometimes the procedure is given in the Act itself under which the agency is established,1 and some other times the agency is left free to draw up its own procedure.2 In other cases they are only required to follow the principles of natural justice which are not fixed and their application depends on the facts and circumstances of each case.3 Therefore, in some places their procedure is in "stiff collars" and in others in "shirt sleeves". The whole process of administrative adjudication in India has become a patchwork of judicial decisions, statute law, rules and regulations and administrative directions.

The process starts with the notice. The requirement and content of notice is sometimes prescribed by the Act itself and sometimes it simply flows from the nature of functions performed by the agency. But in the latter case whether the failure to issue notice would vitiate the proceedings or not would depend on the fact-situation of every case.4 In the same manner, unless the statute requires otherwise, the only obligation of administrative agencies exercising adjudicatory powers is that they must hear the other party. But in what manner a person would be heard still remains uncertain. On the one hand, the courts are emphatic on the point that oral hearing is not a part of natural justice5 but on the other courts have held that in cases involving complex questions of law and fact or if its denial results in manifest injustice, oral hearing must be given. All of these are vague and uncertain expressions.6

Though the adversary process is the corner-stone of common law adjudications, however, in India the right to cross-examine a witness tendering oral or documentary evidence depends upon fact-situations of every case unless the statute requires otherwise. In cases of disciplinary actions against industrial workers7 and civil servants,8 the Supreme Court has insisted on the right to cross-examination as a requirement of the principle of natural justice but in other areas on various considerations9 this has not been insisted upon.

In the same manner the right to be represented through a lawyer has not been insisted upon as a necessary ingredient of the principles of natural justice unless the circumstances are such that its denial results in manifest injustice.10 The policy of the law has also not been uniform in this regard. Certain statutes like the Industrial Disputes Act bar legal representation but on the other hand statutes like the Income Tax Act allow legal representation. The common argument given against allowing legal representation is that it complicates and delays matters and gives an edge to the rich over the poor. Whatever may be the truth but it certainly reminds one of the words of Allen that it is a 'mistaken kindness to the poor'. Section 6(a) of the Administrative Procedure Act, 1946 provides for legal representation and para 87 of the Frank Committee Report lays down that the right to legal representation should be curtailed in most 'exceptional circumstances'. Therefore, it may be suggested that the right to legal representation may be curtailed only when it is clear that the interests of the parties would be better served by restriction and even in such cases legal aid must be provided by the agency itself.

Issuing 'directions' to administrative agencies exercising decision-making powers is another problem which arouses suspicion in the mind of a common man about the impartiality of these agencies. Such directions are issued by the government either under the Business Rules or under any statute11 making provision for the issue of such 'directions'. It may be suggested that the administrative agencies exercising adjudicatory powers must be left absolutely free to take decisions independently and impartially. However, general directions dealing with broad questions of policy may be permitted for the sake of uniformity.

Another glaring problem of administrative adjudication is that apart from the statute there is no obligation on administrative agencies exercising decision-making powers to give reasons for their decisions. It is admitted on all hands that in order to avoid arbitrariness, to facilitate review and to develop uniform principles of administrative law, 'reasons' are essential. It is gratifying that the Supreme Court has insisted that the administrative agencies exercising adjudicatory powers must give reasons though the question of sufficiency of reasons in a particular case remains still uncertain.12 If the courts of law are to be replaced by administrative authorities and tribunals as indeed, in some kinds of cases, with the proliferation of administrative laws, they may have to be so replaced, it is essential that administrative authorities and tribunals should accord fair and proper hearing and give sufficiently clear and explicit reasons in support of their orders. Then alone administrative authorities and tribunals exercising quasi-judicial functions, will be able to justify their existence and carry credibility with the people by inspiring confidence in the administrative adjudicatory process. It is true that all the persons manning administrative agencies exercising adjudicatory powers are not judges, and therefore, are not expected to write lengthy judgments. However, it may be suggested that they must be brought under some legal obligation to include a statement of findings and conclusions as well as the reasons or basis thereof upon all material issues of fact, law and discretion presented on record whenever any party demands it. Administrative agencies exercising adjudicatory powers must also reinforce their findings with 'substantial evidences'. Substantial evidences here means such relevant evidences as a reasonable man might accept as adequate to support the conclusion. The 'no evidence rule' presently followed is not only illusory but also unjust.

Leaving aside tribunals, administrative agencies exercising adjudicatory powers discharge various other administrative and governmental functions. In many cases these agencies combine the functions of prosecutor and judge in one. In the interest of justice and for regaining the lost faith of the people in administrative justice some sort of separation of functions is necessary. Therefore, the institution of 'Hearing Officers' of U.S.A. or the institution of 'Inspectors' of England is worth considering. This may also help eliminate problems like 'departmental bias', 'plea bargaining', 'official perspective' and 'political interference' which are eating into the very marrow of the administrative justice.

Unforeseeability and unpredictability of decisions of administrative agencies exercising adjudicatory powers is another reason why these agencies do not carry credibility with the people. These agencies do not publish their decisions in the form of official reports and thereby their actions go beyond the pale of public criticism. This element of secrecy not only creates suspicion but the agencies are deprived of the benefit which healthy public criticism can confer. Administrative agencies also do not follow the theory of precedents, and therefore, their decisions become unpredictable. This not only offends the common man's sense of justice but is also against the concept of rule of law. No doubt individualization of justice demands freedom from precedents, yet these agencies must be very slow in overruling their own decisions. This will help in developing some sound principles of administrative law which are significantly lacking in India.

If substantive law is important, the procedural law cannot be in any way less significant, because unless the media is certain and trustworthy justice cannot be up to the mark and may result in arbitrary actions. Therefore, it may be suggested that the Central Government must appoint a Task Force Committee to go into various problems of administrative justice with special reference to its procedure and to draft a minimum procedure on the pattern of Administrative Procedure Code, 1946 and the Tribunals and Enquiries Act, 1958, laying down the minimum procedure which all the administrative agencies exercising adjudicatory powers must follow.

Another recommendation of the Swaran Singh Committee which relates to administrative justice is the deletion of the word 'tribunal' from Article 227(1) which gives High Courts the power of superintendence over all tribunals within its jurisdiction except those which are constituted under the law relating to the armed forces.13 This power was given to the High Courts to keep tribunals within bounds of their jurisdiction and authority and not for correcting errors of law and fact. High Courts usually intervened in cases of non-use or misuse14 of powers by the tribunals and for this purpose exercised authority to ask for returns, prescribe rules and forms for practice and procedure and issue direction. If this power of superintendence of the High Courts is to be abolished, it may be suggested that some other administrative machinery may be established on the pattern of 'Council on Tribunals' in England to supervise and to consolidate the working of administrative tribunals into a unified system. In India such a council should consist of legal and technical persons appointed by Parliament. It may exercise the functions of identifying areas in which tribunals may be established and to keep under review the constitution and procedure of the existing tribunals. It must exercise only advisory jurisdiction and must make a report to the Parliament on the working of administrative justice by the tribunals and other administrative agencies.

The abolition of the power of superintendence by the High Courts if read along with the recommendation of the Committee for deleting the words 'for any other purpose' from Article 226 would certainly leave a person with diminished remedy against the excesses of administrative agencies exercising adjudicatory powers. However, this should not be a cause of any apprehension because other efficacious remedies are still available for the vindication of civil or fundamental rights. The Committee has not touched the jurisdiction of the High Courts for the enforcement of the fundamental rights. Furthermore, the jurisdiction of the Supreme Court under Article 136 has also not been scuttled. Under Article 136 the Supreme Court has power to grant, in its discretion, special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal except the armed forces tribunal. The term 'tribunal' has been interpreted by the Supreme Court to mean not only tribunal in the ordinary sense of the term but also any administrative agency exercising the inherent judicial powers of the State.15 Though the power of the Court to review actions of the tribunals is discretionary and extraordinary yet the Supreme Court has not declined jurisdiction in cases of non-use and misuse of powers by the tribunals if the applicant was able to show the presence of special circumstances.16 Therefore, there is no room for apprehension in the mind of any person that the proposed constitutional strategy of administrative justice would leave us unprotected against administrative adjudicatory excesses because the Committee has left the apex of the administration of justice untouched which will continue to be the sentinel on the qui vive both of administrative freedom and justice to the people.

* LL.M. (Luck.), LL.M. (Calif., Berkeley), Associate Professor of Law, Himachal Pradesh University, Simla. Return to Text

1. For example Section 5(a), Land Acquisition Act. Return to Text
2. Section 33, Indian Medical Council Act. Return to Text
3. Kesava Mills v. Union of India, (1973) 1 SCC 198. Return to Text
4. Kesava Mills v. Union of India, (1973) 8 SCC 198. Return to Text
5. Union of India v. J.P. Mitter, (1971) 1 SCC 396. Return to Text
6. Travancore Rayons v. Union of India, (1969) 3 SCC 868. Return to Text
7. Meenglaas Tea Estate v. Workmen, AIR 1963 SC 1719 : (1964) 2 SCR 165. Return to Text
8. Khem Chand v. Union of India, AIR 1958 SC 300 : 1958 SCR 1080; Kapoor Singh v. Union of India, AIR 1960 SC 493 : (1960) 2 SCR 569. Return to Text
9. Kanungo & Co. v. Collector of Customs, (1973) 2 SCC 438 ; Hari v. Dy. Commr. of Police, AIR 1956 SC 559 : 1956 SCR 506. Return to Text
10. Kalindi v. Tata Locomotive & Engg. Co., AIR 1960 SC 914 : (1960) 3 SCR 407. Return to Text
11. For example Indian Income Tax Act, 1961 and Motor Vehicles Act, 1939 contain such provisions. Return to Text
12. Bhagat Raja v. Union of India, AIR 1967 SC 1606 : (1967) 3 SCR 302. Return to Text
13. Article 227(4). Return to Text
14. Dahya Lal v. Rasul Mohd., AIR 1964 SC 1320 : (1963) 3 SCR1 ; Santosh v. Mool Singh, AIR 1958 SC 321 : 1958 SCR 1211; N. Chandra v. Mahendra Nath, AIR 1963 SC 1895 : 1963 Supp 2 SCR 570. Return to Text
15. A.C.C. v. P.N. Sharma, AIR 1965 SC 1595 : (1965) 2 SCR 366. Return to Text
16. Dhakeshwari Cotton Mills v. C.I.T., AIR 1955 SC 65 : (1955) 1 SCR 941. Return to Text