This article is written by Shobhna Aggarwal, from Banasthali Vidyapith. This article highlights the development or we can say the betterments introduced in administrative law and all the things covered in this article are analysis of Upendra Bakshi’s study.
Administrative law is judge-made law. Courts always develop new principles and rules so that the law runs close to the lifeline of the people. During the last few years, major developments in the field of administrative law have taken place, especially in the area of public accountability. The absence of good governance has been the main problem from which people suffered the most. Thus, arbitrary exercise of administrative discretion, corruption, and misfeasance of all sorts in public office by public authority engaged the court’s attention. Substantial grounds have also been covered in the area of natural justice, subordinate legislation, and judicial review. During the period under survey, the apex court has developed some of the finest principles of administrative laws which will go a long way in making administrative authorities more responsive and responsible to the needs and aspirations of the people. Certainly, administrative law is basically about good governance. According to Upendra Baxi (presently a Research Professor of Law and Distinguished Scholar in Public Law and Jurisprudence at the Jindal Global Law School, OP Jindal Global University), administrative law is a study of the pathology of power, especially in a developing society.
Rule of law notion as ground norms of administrative law
The concept of “rule of law” is the main source of the principles of administrative law. Over a while, the concept has been operationalized as implying the absence, or at any rate diminution of arbitrariness in the exercise of public power. The constitution embodies many facets of this concept in several of its provisions, including those of Part III of The Constitution of India which guarantees fundamental rights. In the Kesavananda Bharati case, there occurred a refreshing dialogue on the issue of whether the concept of the rule of law was itself an aspect of the doctrine of the basic structure of the Constitution, which even the plenary power of parliament cannot reach to amend. This dialogue continued among justices of the Supreme Court during the internal emergency of 1955-77.
In the Raj Narain case, an amendment to the Constitution was invalidated by Justice Khanna and Y V Chandrachud on the ground that it violated the concept of the rule of law which was an aspect of the basic structure. Other Justices did not take this route to invalidation complaining in essence that the concept cannot possess a “brooding omnipresence” over the specific provisions of the Constitution. In the Habeas Corpus case (S.K. Shukla v UOI), the argument was pressed that the executive cannot even in times of an emergency, entailing suspension of the bill of rights act in violation of the concept of the rule of law as the “obligation to act following the rule of law is a central feature of our constitutional system and is a basic feature of the constitution.”
Although there was some confusion as to the status of the concept during the period of the emergency and some justices went so far as to suggest that the emergency provisions themselves constitute the rule of law during such a regime, the options closely read do suggest the conclusion that the contention of the petitioners was accepted in the reasoning of all the five opinions though unfortunately not in result. The result was a carelessly drafted order as the court was itself too late to characterize, which left us with no remedy against any arbitrary exercise of authority. But despite this distortion, whose severe consequences were tragically documented in a denial of all judicial relief even as regards the conditions of detention the Kesavananda Bharati, Indira Gandhi, and the Habeas Corpus cases provide a distillation of Indian judicial thought on the conceptions of the rule of law which has evolved well over a quarter-century. References to western theories and thinkers from Dicey onwards abound in these opinions but these occur by way of rhetorical flourishes masking the typically Indian approaches.
Rule of law in India
When one reflects upon decisional law in this area, one finds that the concept of the rule of law thus developed has several components. One is that power should not be exercised arbitrarily. This has meant that it should be exercised for the purposes for which it has been conferred. It also means that power should be exercised within the statutory ambit and purported exercise of it would not just be ultra vires but in a true sense of the term arbitrary. The simple negation of arbitrariness is however not enough to preserve the rule of law values, Indian courts have gone further to insist on specific positive content of the rule of law obligations. These include the rule of natural justice which has to be followed not just in quasi-judicial action but often also in purely administrative actions. The scope and content of the requirements of natural justice have varied from time to time according to the judicial interpretation but the broad insistence remains. Also, access to information as to the grounds of decision has remained an important preoccupation of the Indian judiciary as any impedance to it tends to obstruct judicial review of administrative action. This means that the courts have from time to time insisted that the exercise of administrative power be accompanied by reasons although that exact status of the obligation to give reasons is as yet intermediate.
The rule of law notion has been also consistently extended to secure for the individual fair dealing by the state in its economic activities. In matters involving government contracts, the courts have been increasingly keen to insist that the ambit of fair play is not lessened because of the dominating capacity of the state over the individuals. In the area of losses and injury arising out of the state economic entrepreneurial function courts have tended to restrict the scope of the defence of sovereign immunity in favour of the affected individuals. The rule of law concept was evolved by the Indian judiciary not just to provide a framework of negative constraints on governmental action but also to impose specific fairness duties on the state.
In quite a few respects then the Indian administrative law transcends the inspiration and models of judicial intervention found in cosmopolitan jurisprudence of Anglo-American decisional law, although judicial discourse remains suffused with quite deceptive reliance on these very sources.
The separation of powers
The separation of powers doctrine, as an emanation of the rule of law values, has been a discrete area for judicial pronouncements in India. Apart from the directive principles embodied in Article 50 which enjoins separation of judiciary from the executive, the constitutional scheme does not tolerate any dogmatic division of powers. When the doctrine of separation of power was urged in the fifties as denying, or in the alternative substantively restraining, wide grants of delegated legislative powers to the executive, the Supreme Court upheld such delegation, subject to certain limitations, but in essence denying the existence of the doctrine in the Indian Constitutional scheme.
Apart from the difficulties in contemplating and maintaining any rigid doctrine of separation of powers in contemporary conditions, with the declining role of legislative institutions in the domain of law-making and the progressively increasing domination in all spheres by the executive, there is also the inherent difficulty in defining numerous workable terms, the division of powers into legislative, executive and judicial. Experience has shown that even if the doctrine of separation of powers were to be grasped as merely involving division of functions, demarcating lines among the various functions of the government are equally difficult to draw. The Supreme Court has made recently one valiant attempt to identify the essential feature of judicial power namely adjudication of specific disputes which is denied to the constituent body, that is Parliament acting under the amending powers of the Constitution under Article 368. But this effort, problematic as it is at its intrinsic level, is not of decisive relevance for the development of administrative law though it may be so for the exercise of constituent power itself in the future.
The important issue concerning the constitutionality of delegated legislation arose soon upon independence in the Supreme Court’s advisory opinion in the Delhi laws case. Before independence, the doctrine of conditional legislation held away under the landmark ruling of the privy council in queen v. burah. Conditional legislation granting the executive many powers- for example to extend the life of the act by a period or to bring into force an act duly passed or to extend the pecuniary jurisdiction of civil courts to a precise maximum amount- was upheld although with circumspection.
Upon the adoption of the Constitution, the question of the constitutional validity of delegated legislation was argued at great length in advisory proceedings in Delhi laws. The central government was not merely authorized to extend to the union territory of Delhi laws or to be made in the future by any state but if necessary to adapt and modify these. The authorization extended beyond extensive modifications of such laws to the repeal of any existing laws in force in the territory of their substitution by other laws from time to time. The scope of delegated legislation thus entailed was very wide indeed.
Need for delegated legislation
In a complex set of opinions, the Supreme Court negated the contention that the doctrine of separation of powers forbade delegation of legislative authority. The argument that the legislature was an agent of the people and cannot further delegate its lawmaking powers was explicitly rejected. If the delegation of power to the executive was not per se invalid was there no limit to the powers that can be delegated? The court formulated the general limit of delegation in terms of a broad formula; what cannot be delegated it said is the essential legislative function. This function consisted in the determination of legislative policy and its formulation as a rule of conduct. Excessive delegation would arise when the legislature left the executive to perform even these tasks. But the application of this general test was no easy affair even in the very case in which it was formulated. The power to extend without modification central and provincial acts both present and future was upheld by five votes to two. The authority to apply existing and future legislation with alteration and modifications was also similarly upheld. The power to repeal existing laws and to substitute new ones was held ultra vires by a narrow margin in a four to three vote. Three justices formulated limits of the delegation of legislative power more generously at effacement or abdication. Parliament may not destroy its legislative powers of delegation; it may not abandon its control over the delegate; nor may it create new legislative power not contemplated in the constitution. In each of the three situations, the charge of excessive delegation would be attracted. Neither the test of abdication nor that of essential legislative function helped the court to arrive at a unanimity of outcome in any of the categories presented to it in this reference.
A large number of subsequent decisions have shown that it is difficult, in practice, for anyone to sustain the charge of excessive delegation. Whether the legislature has performed the task of formulating the legislative policy while making the grant of wide delegated powers of rulemaking to the executive is a question which the courts have answered again and again by discovering and imputing policy to legislations which ex facie did not disclose these. All too often even the vaguest declarations of policy intent and objective in the preambulatory recitals have been considered sufficient for sustaining delegated legislations. Rarely has a judge taken pains to declare that the essential legislative function cannot be performed by a vague and general declaration of policy but that it required a definite policy controlling and regulating the powers conferred on the executive for carrying into effect that policy. The absence of legal services programs is another aspect of the access problem, which gets aggravated especially when executive legislation occurs in the area of redistributive equities. The inability to devise appropriate controls over this is an aspect of the current crisis of the Indian legal system.
With very wide powers of delegated legislation also marches conferral of vast discretionary powers in the administration. The administration does not merely have the rulemaking power it also has the power through subordinate legislation to confer further discretionary powers upon itself through such rulemaking. Often the legislature itself indeed provides for wide discretion for specific authorities. But it is the former method of creating and extending discretion that has come often before the Indian courts.
The courts have however almost consistently repelled challenges to the conferral of vast and even unbridled discretionary power on the administration. These challenges have usually been made on the ground that such conferral violates either the provision of equality before the law guaranteed by Article 14 or reasonableness of restriction on the seven freedoms guaranteed by Article 19 or the residuary rights of detenues articulated by Article 22 of the constitution. As with the challenges to the plea of excessive legislation the Indian courts have by and large found that the conferral of vast discretionary power is usually accompanied by a statement of policy or guidance whether in its preamble or general purposes. No precise delimitation of policy or guidance is usually insisted upon even if the most general indicators are held sufficient.
This is not to say that Indian courts have never invalidated what appeared to them to be genuinely arbitrary conferrals of discretionary power. But they have done so only where the arbitrariness of the conferral is writ large on the face of the provision. discretionary power given to an authority to declare an association unlawful on its subjective satisfaction and precluding judicial review was held to be a violation of the fundamental rights to form an association under Articles 19(1) (c) and (d). where a commissioner of police was authorized to permit prosecutions in public places and the permission was mandatory on the professionals, the unfettered power to refuse permission without procedural safeguards and scope for review was held bad against the guaranteed right to assemble under Article 19 (1) (b).
Delegation of authority by Central Government
The central government has delegated the power to determine and proceed with the appointment of the investigators if necessary to the company law board. The majority held that the circumstances suggesting any of the three possibilities must objectively exist was a prerequisite of the formation of subjective opinion and the exercise of discretionary power.
We thus find that while the courts do not merely sustain wide conferrals of discretionary power they also disable themselves in a variety of ways from exercising effective supervision over their exercise. They follow self-denying ordinance in matters of the merits of the discretionary policies or actions and in securing greater access to facts and grounds of administrative decisions. His caste-based view associates hierarchic eminence with the responsible exercise of powers despite significant empirical evidence to the contrary also limits the range of effective judicial invigilation. In the circumstances, it is quite accurate to say that judicial review in this area is still only peripheral, and even where it is available it is not easy to get the relief sought.
The phenomenon of intra and inter-departmental directions or instructions provides an additional weapon in the arsenal of the administrative State. Wide powers of delegation and sub-delegation and conferral of enormous discretionary powers on the executive thus stand reinforced by the institution of directions. Prima facie, such directions bind only the administrators; they do not create changes in individuals’ rights or status. Directions do not have any statutory force as compared with rules and regulations under statutory powers. But courts have not always found it easy to provide crystal-clear points of distinction between discrepancies and rule.
The government cannot issue directions to quasi-judicial authorities performing tasks of administrative jurisdiction. Even a body performing executive or legislative functions, may not be subjected to executive directions if the statute does not explicitly authorize this. In one case at least, as a result of a negative judicial verdict, a statute had to be amended to authorize the issue of governmental directions. But generally, statutes are expensive.
From a victim-oriented perspective of administrative law, one may wonder whether extensive powers to issue directions to administrative authorities are justified. This question arises because directions can often effectively impinge on rights and create obligations for individuals. No doubt these can be questioned and rendered unenforceable by proper mitigation strategies. Such strategies have to cope with the problems of identification of governmental directions, a problem for which there are no determinate judicial guidelines. There is also an additional problem of access to information as the multitude of directions issued in a wide variety of statutory contexts are rarely available in a published form. Publication of directions is itself a discretionary function of the executive. The problem of identification of directions and that of continuing access to them poses difficulties for devising successful litigation strategies.
Therefore, while notionally directions cannot be enforced through courts, they do operate, in quite a few sectors, as vehicles of administrative action, and even domination, in addition to the vast powers of delegated legislation and discretion already heavily vested in the administration. One hopes that the new ferment in the Indian administrative jurisprudence since 1977 will extend to this problem of directions by devising more stringent patterns of accountability in administrative action.
Problems of limits to fairness discipline
There has been a steady expansion in contemporary India of justice by tribunals whose nature, scope, personnel, and structure vary enormously. Legislatures creating these tribunals attempt to impose certain fairness discipline favouring the victim of administrative deviance by providing many a procedural safeguard expressed through the rolled-up phrase rules of natural justice. They also provide for relative autonomy for tribunals at the same time the scope of linkages between tribunals and courts is also structured through statutes. Some tribunals are given the discretion to refer complex matters of law to high courts through the case-stated procedure. Statutes also provide for the exclusion of judicial intervention by the ouster clauses. but this kind of structuring has often proved fragile because of the overarching powers of the supreme court under Articles 32 and 136 of the Constitution and that of the high court under Articles 226 and 227. The attempt made by the emergency 42nd Amendment to the Constitution to immunize tribunals from often excessive and sometimes wayward invigilation by high courts through limiting their Article 226 jurisdiction was cancelled by a nullifying amendment after the emergency.
The result is that while India has a flourishing range of adjudicative tribunals it does not have an integrated system of tribunals nor any jurisprudential theory for the place or status of tribunals in the legal system. Both the higher court as well as the legislature continue competing, to impose their standards of fairness or tribunals. The rate of success in their enterprise is another matter. Thus, the self-same decisional process may differentially attract the onus of fairness obligations. In the case of The Bharat Bank Ltd., Delhi vs. The employees of the Bharat bank, the Supreme Court has held that the decision to raise the allowances of the workmen which tended to disturb the industrial settlement required some kind of consultations with affected interests although the action was administrative.
Audi alteram partem
The principle of audi alteram partem (fair hearing) is a basic concept in relation to the principle of natural justice. In Sarat Kumar Dash vs. Biswajit Patnaik, the court observed that the omnipotence inherent in the principle is that no one should be condemned without being heard. In the field of administrative law, this principle is applied to ensure fair play and justice to the affected person. However, it cannot be considered to be a cure for all the ills of the administrative process. Its application is intended to prove administrative efficiency and expediency and to meet the ends of justice. Thus, the principle of audi alteram partem only insists that the procedure adopted by the administrative authority must be just, fair and reasonable. Pre-decisional hearing is the normal rule. However, an administrative authority may provide for a post-decisional hearing in exceptional circumstances, if the administrative authority so decides to keep in view e particulars of each case. This is a deviation from the earlier stand of the court that if in given situation principles of natural justice are attracted then the post-decisional hearing would not be a substitute for a pre-decisional hearing.
Though the principles of natural justice can be excluded by law as they supplement law yet law which excludes the application of these principles can be questioned in a court of law under Articles 14 and 21 of the Constitution of India. However, where the instincts of law are silent, that silence may be filled with the principles of natural justice if the person has suffered prejudice. Thus, the Supreme court in the State of UP vs. Vijay Kumar Tripathi held that where a provision in the rules enables the authority to pass a censure entry without framing formal charges or calling for an explanation, principles of natural justice should be read into such a provision because censure is certainly a penalty with adverse consequences. In the same manner in the State of Haryana vs. Jagdish Chander where rules provided for discharge of a constable, who was found unlikely to prove an efficient police officer without the opportunity of being heard, it was held bad in law because discharge from service has adverse consequences for the person as it disentitles him from future employment.
Indian courts have generally followed the classification of bias situations as violative of inomo judex rule into three categories:
- Pecuniary, and
- Official or Departmental.
The test formulated in respect of all the three types for proof of bias is the test of a reasonable likelihood of a biased exercise of decision-making power or discretion. This formulation demands a substantial demonstration of the possibility of bias. There are however instances when the supreme court has considered even suspicion about bias as discharging the burden of proof for the allegation of personal bias as discharging the burden of proof for the allegation of personal bias. One situation in which suspicion of bias was accepted as a ground for invalidating proceedings involved the question of professional standards in the practice of law. A person who had alleged professional misconduct against an advocate was once a client of the chairman of the inquiry committee. The Supreme Court was clear that the chairman has no personal contact with the complainant and that there was no reasonable likelihood of a biased decision favouring the complaint because of the previous professional association. And yet it held that the chairman was disqualified not because he was likely to be biased but because justice must not only be done but seen to be done to the litigating public. The suspicion bias test rests on an inference of apprehension of unfairness in the mind of the affected individual; and in that sense, it is individual or victim-oriented as against the reasonable likelihood test of bias which is authority or institution oriented. The latter however appears to be the dominant test.
Many road transport nationalization statutes confer power on the secretaries and ministers concerned with the subject to approve schemes of nationalization prepared by the statutory transport authorities under statutes that provide for one or the other mix of requirements of natural justice. When disputes arise between operators under the treaty of nationalization and the state the supreme court has clearly held that proceedings to determine the disputes as quasi-judicial. This characterization immediately brings determinations under judicial review on the ground inter alia of bias. The court invalidated the determination by the secretary of the transport department who heard the transport operators’ objections to nationalization on the ground of bias. But when instead of the transport secretary the minister in charge of transport himself heard the objections the court held that allegations of official bias against the secretary upheld by it as valid cannot be extended to a minister who was the head of the department. The minister was held not so closely identified with the departmental policies as the secretary of a department. But the court was to later qualify this posture. It clarified that the doctrine of bias is qualified by the extent of statutory authorization.
Thus given the overall judicial posture the doctrine of official bias is not an important strategy for securing administrative accountability through the exercise of judicial power. The balancing of interests in this area may be more aptly described as a process of accommodation and legitimation of the rather substantial executive powers in the hands of the administration. The judicial insistence on accountability then shifts to other aspects of natural justice requirements including the audi alteram partem rule.
The Indian state continues to be a significant economic entrepreneur engaged in a vast variety of transactions with individuals and groups. The Indian constitution envisaged an increasing role for the state’s economic and trading activities and has provided specifically in Article 299 for government contracts. The government contracts must be expressed in the name of the president of India or the governors of states. All contracts and assurances of property are to be executed on behalf of these heads of state who have to authorize the manner of their execution. Personal liability for government contracts for the heads of state or for any official of the state is explicitly foreclosed.
The judiciary has taken the view that Article 299 is an important provision safeguarding the functioning of the state as an economic agent from undue liability. Judges have therefore tended to approach the requirements of the article somewhat strictly. There are decisions holding that if the contract is not in writing or it is not expressed on behalf of the head of the state or is not in accordance with the procedure and form prescribed under Article 199 no legal action against the government will lie. Such contracts may be unenforceable even through commercial arbitration.
The Indian judiciary has made very worthwhile contributions to administrative jurisprudence. The same may be said despite the wayward pattern of judicial responses concerning the problems of tortious liability of the government, an aspect to which we now turn.
Governmental liability in tort
After more than seventy years of independence, not merely has any legislative solution been attempted to solve the problem of compensation for injuries caused to Indian citizens out of the routine activities of governmental agencies, but also the government has usually put forth the defence of sovereign immunity whenever compensation claims have been pressed as if the directive principles and the preamble to the Constitution did not exist. The courts too have confronted a decision made by the Calcutta Supreme Court in 1861. Under the ruling “there is a clear distinction between acts done in the exercise of sovereign power, and acts done in the conduct of undertakings which might be carried on by private individuals without such powers delegated to them.” Indian courts have yet to repudiate this distinction although they have bypassed it or manipulated it in a large number of cases in favour of the victim of injuries caused by State operations.
The responsibility of officers
In 1962, deciding the question of the liability of the government for the reckless and negligent driver of a government vehicle while fatally injured a pedestrian, the Supreme court ruled that in a “Republican form of government” with an avowed socialistic Constitution “there is no justification, in principle, or in the public interest, that the state should not be held liable vicariously for the tortious acts of its servants.”
The promise of this decision was somewhat dissipated in 1965 when the court held that the theft of gold kept in police custody on suspicion that it was stolen property did not establish a claim for tortious liability since under the 1861 “precedent” the state cannot be held liable, law and order activities being an aspect of the sovereign function. This decision has been rightly criticized by juristic writings and seems to have had a little adverse impact on the high courts, which have almost consistently denied attribution of sovereign function to diverse governmental activities such as the use of a military vehicle for carrying sporting teams of the Indian Air Force, or transportation of records and equipment or overflowing of a reservoir by the state. In a recent decision, the Supreme Court also negated the plea that famine relief was a sovereign function and therefore no compensation was due to the widow of a pedestrian run over by a defective truck in the relief operations.
What is striking in this situation is that the state should be contesting such matters as far as the supreme court of India and that the courts while giving relief should still be nominally adhering to rather than expressly repudiating the 1861 test distinguishing between sovereign and non-sovereign functions so contemporaneous today. The very first report of the Indian law commission in 1956 urged legislative abolition of this distinction and courts have repeatedly endorsed this recommendation. A bill introduced in 1965 lapsed in 1967; since then parliament has not found this item to be one deserving high priority on the legislative agenda. It is much to be hoped that the Supreme Court of India, without waiting for any further legislative action, bids farewell to this colonial doctrine, making it difficult for citizens of India to claim compensation for injuries they suffer as a result of the growing volume of state activity in all domains of Indian life.
The Indian state continues to be a significant economic entrepreneur engaged in a vast variety of transactions with individuals and groups. The Indian constitution envisaged an increasing role for the state’s economic and trading activities and has provided specifically in Article 299 for government contracts. Government contracts must be expressed in the name of the president of India or the governors of states. All contracts and assurances of property are to be executed on behalf of these heads of state who have to authorize the manner of their execution. Personal liability for government contracts for the heads of state or for any official of the state is explicitly foreclosed.
The judiciary has taken the view that Article 299 is an important provision safeguarding the functioning of the State as an economic agent from undue liability. Judges have therefore tended to approach the requirements of the article somewhat strictly. There are decisions holding that if the contract is not in writing or it is not expressed on behalf of the head of the State or is not in accordance with the procedure and form prescribed under Article 199, no legal action against the government can be taken. Such contracts may be unenforceable even through commercial arbitration.
The Indian judiciary has made very worthwhile contributions to administrative jurisprudence. The same may be said despite the wayward pattern of judicial responses concerning the problems of tortious liability of the government, an aspect to which we now turn.
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