This article is written by G.S. Sreenidhi and pursuing Vth Year B.A.LL.B(Hons.) from Maharashtra National Law University Mumbai.

Introduction

The process of administration of justice in India has evolved over the years. The judiciary in India is similar to the set up in many common law countries. The development of administrative law is another area whose roots can be linked to the English Jurisprudence. While several authors and renowned jurists have opined and given definitions of Administrative Law, a similarity and the crux of all these definitions is that administrative law relates to the actions of administrative authorities along with their powers. 

Administrative bodies have a variety of powers including rule making, forming regulations and quasi judicial powers. The judicial power of Administrative Authorities is usually by way of tribunals set up under various legislations. Through the course of various cases and evolution of principles, there is a reasonably clear classification of ‘Administrative Tribunals’ along with a general definition of an ‘Administrative Adjudicator’. By way of landmark decisions, the Supreme Court has laid down the criteria for administrative adjudicators. The essential condition being a decision being made and this action leads to taking away a right or imposing a liability on an individual or group of individuals or a legal entity. While these adjudicators are not part of the judiciary per se, they are still subject to judicial review. The decisions and exercise of discretionary powers by administrative adjudicators falls within the jurisdiction of the Judiciary. 

With that in mind, this paper deals with the aspect of ‘errors in law’ and ‘error apparent on the face of record’ by decisions of administrative adjudicators. The paper will elaborate on who constitutes Administrative Adjudicators and the power of the judiciary to review these orders of tribunals, particularly by way of issue of writ of certiorari. Further, the paper will analyse various decisions made with regard to the nature of error and remedy available while also tracing the blurring distinction between error of law and error apparent on the face of record.

Administrative Adjudicators

Administrative Adjudicators form a part of Administrative Tribunals. These tribunals are creations of law through different legislatures that clearly lay down the authority of the law and the procedure for functioning of these tribunals. These tribunals generally adjudicate on complaints, trials and disputes through adversarial proceedings. The basic need and a major characteristic of these tribunals is the quick disposal of numerous cases along with a cost effective mode which also includes a flexibility in the procedures. Unlike courts, these tribunals focus on functionalities and not on technicalities. By taking the focus away from a legalistic view and approach, these tribunals are better accessible to the common people and less intimidating due to the relative simplicity and informality in the proceedings. These tribunals have become an indispensable part of any welfare state and facilitate in easing the plethora of pending cases before the Courts of a Country.

In India, after various recommendations by Law Commission Reports, in particular the 14th Law Commission Report, that stressed the importance of not linking Administrative Tribunal to the High Courts, the Parliament passed the Administrative Tribunals Act, 1985. This Act laid down the powers and jurisdiction of tribunals and specified bodies that would be classified as tribunals and set out the powers and procedures for these tribunals. 

While there have been many discussions and debates on the advantages and disadvantages of such tribunals, there have also been cases that have crystallised the power of judicial review and there have been continuous attempts by the Courts to curtail arbitrary decisions and abuse of discretionary power by the administrative authorities. In this regard, while the Act lays down the Administrative Tribunals, through these years, it has been an established principle that for an adjudication to be termed as an ‘Administrative Adjudication’, there need not be a clear classification of the adjudicating authority as a ‘Tribunal’. Even if the authority is not formally defined under the scope of any law, the test of deciding if an act amounts to adjudication is two fold:

• A decision is taken by an authority that prompts action.
• This action in turn leads to imposition of a liability or taking away the rights of a legal entity.

In light of this, we can see that the scope of administrative adjudication is expanded and made inclusive which in turn brings a larger number of bodies under the scope of judicial review. 

Writ of Certiorari 

Black’s Law Dictionary defines certiorari as follows:

“A writ issued by a superior court directing an inferior court to send up to the former some pending proceeding, or all the record and proceedings in a cause before verdict, with its certificate to the correctness and completeness of the record, for review or trial; or it may serve to bring up the record of a case already terminated below, if the inferior court is one not of record, or in cases where the procedure is not according to the course of the common law.”

Lord Chancellor Viscount Simon opined the following about Certiorari in the case of Ryots of Garabandho and other Villages v. Zamindar of Parlakimedi and Anr:

“The ancient writ of certiorari in England is an original writ which may issue out of a superior Court requiring that the record of the proceedings in some cause or matter pending before an inferior Court should be transmitted into the superior Court to be there dealt with. The writ is so named because, in its original Latin form, it required that the King should “be certified” of the proceedings to be investigated, and the object is to secure by the exercise of the authority of a superior Court, that the jurisdiction of the inferior tribunal should be properly exercised. This writ does not issue to correct purely executive acts, but, on the other hand, its application is not narrowly limited to inferior “Courts” in the strictest sense. Broadly speaking, it may be said that if the act done by the inferior body is a judicial act, as distinguished from being a ministerial act, certiorari will lie. The remedy, in point of principle, is derived from the superintending authority which the Sovereign’s Superior Courts, and in particular the Court of King’s Bench, possess and exercise over inferior jurisdictions. This principle has been transplanted to other parts of the King’s dominions, and operates, within certain limits, in British India.”

The principles and grounds for certiorari are well established. The power of the Supreme Court and the High Courts to issue writs is contained under Art. 32 and 226 of the Indian Constitution Respectively. The Supreme Court laid down the propositions for issuing certiorari in the case of Hari Vishnu Kamath v. Ahmad Ishaque:

“(1) Certiorari will be issued for correcting errors of jurisdiction;

(2) Certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice;

(3) The court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the court will not review findings of fact reached by the inferior court or tribunal, even if they be erroneous.

(4) An error in the decision or determination itself may also be amenable to a writ of certiorari if it is a manifest error apparent on the face of the proceedings, e.g., when it is based on clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be corrected by certiorari but not a mere wrong decision.”

Among these grounds, a popular aspect is the ‘error apparent on the face of record’. The remedy available to people against a decision based on an error so patent that addressing the error will definitely change the outcome of the decision. This error may be an error of law or an error of fact apparent on the face of record. The next chapter deals with this aspect in detail.

Error of Law Apparent on the Face of Record 

There are different types of errors that may occur in a in a judicial process or an administrative adjudication. These are errors of jurisdiction, error of law and error apparent on the face of record. There is a clear distinction between an error of law and a jurisdictional error. 

A jurisdictional error occurs when a complaint or grievance is wrongfully addressed by a court without the authority to do so. If the court or tribunal has gone wrong in law, this error can be addressed by issuing a writ of certiorari.

Trend in India

The difference between an error of law and error of jurisdiction is minute. Since questions of jurisdiction are connected with questions of law and questions of jurisdiction can often be questions of law. This has led to a blur between an error of fact and a jurisdictional error. This blurring of distinction may be extended to error of law and error of law apparent on the face of record. Principally this distinction may be drawn by looking at the error committed to see if it is manifest, patent and self evident or apparent on the face of record in which case it amounts to error apparent on the face of record. In case the error is latent and can be established by lengthy and complicated arguments, such an error will be an error of law. This distinction was laid down in the Hari Vishnu Kamath case cited earlier. This distinction is necessary and important as the writ of certiorari may be issued when the error is apparent on the face of record and not for a mere error of law. The writ is not issued for a mere wrong decision but for an error so glaring and obvious. This has been upheld by the apex court in numerous decisions such as G Veerappa Pillai v. Raman & Raman Ltd, T C Basappa v. T Nagappa, Hari Vishnu Kamath v. Ahmad Ishaque and Satyanarayanan Lakshminarayanan Hegde v. Mallikarjun Bhavanappa Tirumale. 

By various cases, the Supreme Court has held in various cases including the famous case of Ujjam Bai v. State of UP that a writ of certiorari may also be issued if there is an error of law, which is apparent on the face of the record, a decision of an inferior court or a tribunal. Certiorari may however not be issued on the mere error of law. In Ujjam Bai the question was one of interpretation of the notification where the Supreme Court refused to interfere under Art. 32 and observed that: 

“Where a quasi-judicial authority has jurisdiction to decide a matter, it does not lose its jurisdiction by count to a wrong conclusion, whether it is wrong in law or in fact.” 

While this decision has been questioned and criticised, subsequently, while elaborating on the distinction between these two kinds of errors and acknowledging the overlap, the Supreme Court held the following in the case of Syed Yakoob v. K S Radhakrishnan:

“The impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in hiding that the said error of law is apparent on the face of record.”

Further elaborating, the court has held in the case of Prem v. Deputy Custodian General that for an order of a tribunal to be amenable to judicial review on the ground of ‘error of law apparent on the face of record’ it should be a speaking order, i.e., it should set out the reasons for the decision and should show a clear ignorance or disregard of the provisions of law.

This principle was adopted in India from the English law. This has caused some confusion due to the technical intricacies in differentiating patent and latent errors. Though scholars and judges have tried to draw a distinction, there are several jurists who are opposed to the idea of such a demarcation. Lord Denning remained unconvinced about the distinction between such errors for two major reasons:

“First, he considered a distinction could not be drawn in any principled fashion, and in reality courts are manipulated for instrumental purposes. 

Second, consistency requires same meaning be attributed to legal provisions by all decision-makers and to this end, Court should be able to furnish conclusive interpretations of legislation.”

In the case of Shanmugam v. S.R.V.S the court held that if an authority ignores relevant considerations or takes into account irrelevant considerations in reaching its decisions, it amounts to a patent error of law. If the principle in the Anisminic Case were to be applied, such errors can be construed as jurisdictional errors which will fall well within the scope of certiorari thereby granting a stronger protection. 

Having looked at all these cases and traced the evolution of the principles, the position in law in India in this regard can be summarised in the following judgement by Gajendragadkar J in the case of Syed Yakoob v. K.S. Radhakrishnan:

“It is neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. Whether or not an impugned error is an error of law and an error of law which is apparent on the face of record, must always depend upon the facts and circumstances of each case and upon the nature and scope of the legal provision which is alleged to have been misconstrued or contravened.”

This decision has been the major precedent in cases regarding error of law and subsequent cases have largely followed the principle laid down in this case. This decision has further been upheld in cases involving inference of facts such as Rohtas Industries v. R.I.S.U.

In the case of Dr. Chetkar Jha v. Vishwanath Prasad Verma, the Supreme Court held that in a writ petition for certiorari a superior court would not interfere on the mere ground of an error of fact or even of law, but if the error of law is apparent on the face of record, or it consists of a misconstruction of a law or that assumption of jurisdiction is made which otherwise does not exist, a certiorari can be issued. 

While the earlier position in England was in favour of distinction which was carried over to India, in the USA the courts decide on all errors and relevant questions in law. The Courts also have the authority to interpret constitutional and statutory provisions under the American Administrative Procedure Act, 1946.

Anisminic Case

While courts tried to draw a distinction between an error of law and an error apparent on the face of record, a historic and highly contested decision by the House of Lords in1968 in the case of Anisminic Ltd. v. Foreign Compensation Commission. This case established the doctrine of collateral fact which holds that any error of law that is committed by a public body will automatically make its decision a nullity. The doctrine asserts that “It asserts that in judicial review cases a distinction can be made between misconstruction of an enabling statute for the kind of case meant to be dealt which is a jurisdictional error and misconstruction of the statutory description of the situation which would be an error within jurisdiction.” The practical applicability and the impossibility of drawing such a distinction has been pointed out by scholars and jurists alike. 

Post Anisminic Trend: United Kingdom

In the case of R v. Lord President of the Privy Council, ex parte Page, Lord Browne-Wilkinson interpreted the Anisminic Case as the decision rendering the distinction between ‘jurisdictional error of law on the face of record’ and other ‘errors of law’ obsolete by extending the doctrine of ultra vires.

Following such a view, Lord Denning in the case of Pearlman v. Harrow School Governors noted that the distinction is now a mere matter of words and observed that:

“I would suggest that this distinction should now be discarded…The way to get things right is to hold thus: no court or tribunal has any jurisdiction to make an error of law on which the decision of the case depends. If it makes such an error, it goes outside its jurisdiction and certiorari will lie to correct it.”

The dissenting judge in the Pearlman case, Geoffrey Lane pointed out that the House of Lords in the Anisminic case intended to maintain the established distinction between error of law within jurisdiction and error of law outside jurisdiction. This view of lord Lane was preferred over that of Lord Denning in a Privy Council case from Malaysia of South Ease Asia Fire Bricks Sdn. Bhd. v. Non-Metallic Mineral Products Manufacturing Employees Union and also by the High Court of Australia in the case of Houssein v. Under Secretary, Department of Industrial Relations.

While pondering at the distinction between law and fact, Christopher Forsyth has opined that the distinction between a question of law and question of fact is not so self evident and the boundary between the two is often elusive. He proceeds to cite a case of the Supreme Court of the UK. In the case of Jones v. First Tier Tribunal and amor, Lord Hope in his judgement held that: 

“it is primarily for the tribunals, not the appellate courts, to develop a consistent approach to these issues of law and fact, berating in mind that they are peculiarly well fitted to determine them. A pragmatic approach should be taken to the dividing line between law and fact, so that the expertise of tribunals at the first tier and that of the Upper Tribunal can be used to best effect. An appeal court should not venture too readily into this area by classifying issues of law which are really best left for determination by specialist appellate tribunals.”

This view is a pragmatic approach which is contrary to the objective limit sought to be placed on the powers. This case also takes the view that questions of fact are for the primary decision maker which is once again contrary to the growing trend post Anisminic case that the cases of error of material fact may also be a ground for judicial review.

Summarising the Shift

The trend in the UK and also India following Anisminic is of an expanding system struggling to free itself from the doctrines laid down in the past. However, this does not render these doctrines wholly obsolete as they are still quite relevant in jurisprudence and interpretation today. To summarise the shift from the older rules to the simpler and broader practices which have superseded them can be said of error of fact and error of law as follows: 

Conclusion

With India’s present population and its continued growth, it naturally follows that there will be increased disputes that will further accumulate in the various courts in the Country. Faster mechanisms and alternative methods for dispute resolutions are undoubtedly and undeniably the need of the hour. 

Establishing Administrative Tribunals is a necessary step in this regard. Apart from diluting the load of cases in courts, such specialised tribunals also have experts in the fields and trained personnel as the adjudicating authorities. This ensures that the authority is well-versed with the subject matter and is in a better position to understand the intricacies of the disputes before than as opposed to judges in ordinary courts. However, the mere fact that the adjudicating authority is well-versed in the field does not give rise to a premise for their decisions to be outside the scope of judicial review. Tribunals and Adjudicating Authorities are granted strong discretionary powers and there needs to be a check and control mechanism in place in order to prevent misuse and abuse of such a power. Courts have continued to track and monitor the misuse of such powers and have been persistent in their efforts to curtail arbitrariness while also recognising the importance and respecting the discretion conferred on these authorities.

While the authorities may be experts in the field, this expertise does not make them immune to error. Judicial review provides an avenue to address such grave errors in decisions by both tribunals and courts. The early trends of Courts when dealing with errors was to distinguish between latent and patent errors and excluding latent errors from directly being subject to review, thereby limiting the scope of judicial review. However, later developments have clearly indicated and acknowledged the overlap and blurring of these errors and the there is a realisation of the need to do away with these distinctions and bring all errors in law within the scope of judicial review. While on the one hand, it may be seen as increasing the burden on the courts, on the other hand, it imposes a better control on the arbitrary exercise of power by administrative authorities and while weighing the costs and benefits to the society, and taking into consideration the fact that there is an inherent faith in the judiciary among the people, widening the ambit of judicial review of errors in law is a step in the right direction.

References

Articles

• Walsh, David. Judicial Review, Competence and Rational Basis Theory. Student Law Journal. February 2005

Books

• Basu DD, Sen Gupta SP. Administrative Law. 7th Edn. Kamal Law House. 2016
• Byse. The Federal Administrative Procedure Act, 1 JILI 89 (1958)
• Elliot Mark, Beatson Jack, Matthews Martin. Administrative Law. 3rd End. Oxford University Press, 2005. Pp 46-49
• Jain MC Kagzi. The Indian Administrative Law (4th ed) New Delhi: Methodology Book Co. 30p 
• Jain MP, Jain SN. Principles of Administrative Law. 7th Edn. Lexis Nexis, 2017. pp 653-655
• Kesari, U P D, Kesari, Aditya. Lectures on Administrative Law. 20th Edn. Central Law Publications, New Delhi, 2014. pp 485-486
• Seervai HM, Constitutional Law of India: A Critical Commentary. Vol II. 4th Edn. Universal Law Publishing. 2015
• Thakker, CK, Thakker, M.C. Administrative Law. 2nd End. Eastern Book Company, Lucknow, 2012. pp 1008-1012
• Wade, William, Forsyth Christopher. Administrative Law. 10th Edn. Oxford University Press. 2014

Cases

United Kingdom

• Anisminic Ltd. v. Foreign Compensation Commission, [1969] 2 AC 147
• Houssein v. Under Secretary, Department of Industrial Relations, (1982) 38 ALR 577
• Jones v. First Tier Tribunal and anor, [2013] UKSC 49
• Pearlman v. Harrow School Governors, [1979] QB 56
• R v. Lord President of the Privy Council, ex parte Page, [1993] AC 682
• South Ease Asia Fire Bricks Sdn. Bhd. v. Non-Metallic Mineral Products Manufacturing Employees Union, [1981] AC 363

India

• Dr. Chetkar Jha v. Vishwanath Prasad Verma, AIR 1970 SC 832
• G Veerappa Pillai v. Raman & Raman Ltd, AIR 1952 SC 192
• Hari Vishnu Kamath v. Ahmad Ishaque, AIR 1955 SC 233
• Prem v. Deputy Custodian General, 1958 SCJ 29
• Ryots of Garabandho and other Villages v. Zamindar of Parlakimedi and Anr, AIR 1943 PC 164
• Satyanarayanan Lakshminarayanan Hegde v. Mallikarjun Bhavanappa Tirumale, AIR 1960 SC 137
• Shanmugam v. S.R.V.S, AIR 1963 SC 1626
• Syed Yakoob v. K.S. Radhakrishnan, AIR 1964 SC 477
• Ujjam Bai v. State of UP, AIR 1962 SC 1621
• T C Basappa v. T Nagappa, AIR 1954 SC 440

Statutes

• Administrative Tribunals Act, 1985
• American Administrative Procedure Act, 1946
• Constitution of India, 1949

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