This article is written by Yashaswini Gautam.
Table of Contents
Introduction
Finality clauses are provided by the statute to declare that the decision by any agency “shall be final”. This article analyses and traces the evolution of the finality clauses in India by examining the evolution of the role of the Judiciary. It traces how Indian courts initially inspired the English tradition of law that gave primacy to parliamentary sovereignty and the courts assume a modest role, despite the constitution having federal features. Therefore, when legislation authorized the preventive detention, it was challenged in the Supreme Court in the case of A.K. Gopalan v. State of Madras. The Supreme Court held a view that the Indian constitution does not incorporate within itself the concept of “due process” as in America. Supreme Court invoked the test of ‘pith and substance’ of the subject matter in this case and propounded that only legislative competence is concerned with the direct and the incidental effect of the legislation for the purpose of federal distribution of power and it does not brings forth the question of infringement of the fundamental rights secured by the constitution. In this context, it would have been relevant if the effect of the legislation was to abridge or take away the fundamental rights provided by the constitution.
The role of the Indian judiciary vis-a-vis the parliamentary sovereignty was evolving; with the courts changing their position from the initial one in the parliamentary privileges case whereby it was held that in matters of dispute relating to the houses of parliament the Indian courts were adjudicators, this view was held because the constitution of India, for the reason of it being federal in nature is fundamental and central to federalism and ensure that the federal or the state do not overstep their authority. The Constitution provides the High Courts and Supreme Court under Article 226 and 32 respectively to enforce the fundamental rights against the state. The article cites statutes by which the Indian legislature tried to block the judicial review power of the courts by the means of the finality clauses. It cites the case of Dhulabai v. State of Madhya Pradesh which propounds that the jurisdiction of the civil court can only be ousted if the statute provides for substantial remedies that a civil court would do. Thus upon establishment of appropriate forum the jurisdiction of the civil court can be assumed to be ousted. However to keep in check the discretion enjoyed by the administration is not arbitrary the courts can be said to have distinguish the arbitrary discretion of the administration into two categories, first being the “abuse of discretion” exceeding their authority and the second is “non-application of mind” where the administration omits to do what it was supposed to do. However, the judgments in the later cases including the Maneka Gandhi v. Union of India case, The Shankari Prasad case and The Sajjan Singh case, The Golaknath and the Keshavananda Bharti case exemplified the changes in the nature of the Indian Judiciary. Which established that the power of Judicial Review cannot be completely excluded.
Administrative Finality on Judicial Review
Finality clause are provided by the statute to declare that a decision by any agency “shall be final”. In the landmark judgement of R. v. Medical Appeal Tribunal, ex p. Gilmore the appeal court held that the decision made by administrative authorities if made final might lead to no corrections in the errors made by the inferior tribunals as it will be immune from the attack by superior courts by the means of certiorari. This case establishes a supervisory jurisdiction on the decision made by the administrative tribunals in finding of law. It further laid down that the decision of the inferior tribunals is not immune from the jurisdiction of the superior courts where it is expressed to be “final”. Lord Denning observed that the finality clause is included in the statute on the presumption that the tribunal will take the law into consideration while deciding a case. The decision given by the administrative tribunal can only be final upon finding of the facts and not the question of law. Thus, it was laid down that this clause can only be invoked and will only be effective when the question of fact is challenged. The courts are furthermore allowed to review the decision of the tribunals based on the excess of jurisdiction and when there is error on the face of record. However, if for instance there is a “mixed questions of law and facts” and the court cannot possibly separate the two and figure out where the question of law lies, in such cases, the decision given by the administrative tribunal should be taken as final and conclusive. The courts justify reviewing the question of law in the decision given by the administrative tribunal on the ground that such error in the implementation of law might lead to miscarriage of justice.
However, a person aggrieved by the decision of administrative tribunal can approach court when the decision given by the tribunal is ultra vires, meaning that the tribunal has exceeded its jurisdiction while exercising its authority. Therefore, the decision can be reviewed by the court on the ground of it being ultra vires, which is a question of law. In England the administrative finality has been attempted to be established by various statutes. However, by merely invoking a clause establishing finality of the decision by the tribunal does not bar the court from reviewing the decision on the ground of law although it does prevent the court from questioning or challenging it based on facts. Thus it can be concluded that the finality clause only makes the decision of the tribunal on the facts “final” and not the question the law.
Finality clauses in India
The Indian courts in the beginning took English rather than American tradition despite the constitution being federal in nature. According to which the role of the court is modest and the parliament is sovereign. Therefore, when legislation authorized the preventive detention, it was challenged in the Supreme Court in the case of A.K. Gopalan v. State of Madras. The Supreme Court held a view that the Indian constitution does not incorporate within itself the concept of “due process” as in America. Supreme Court invoked the test of ‘pith and substance’ of the subject matter in this case and propounded that only legislative competence is concerned with the direct and the incidental effect of the legislation for the purpose of federal distribution of power and it does not brings forth the question of infringement of the fundamental rights secured by the constitution. In this context it would have been relevant if the effect of the legislation was to abridge or take away the fundamental rights provided by the constitution.
This view, however, started changing with the decision in the parliamentary privilege case, the Supreme Court gave an advisory decision in this case upon being asked by the president of India. The facts of this case are that a citizen was booked for publishing a libel against a member of the state legislature by the state legislature. The facts of this case were similar to some English cases. The High Court further upon the citizen’s appeal released him upon habeas corpus and the judges were asked to summon before the house for its contempt, which was petitioned before the full judge bench in high court by the judges. Then the house issued warrant for the arrest of the judges to be produced before it to deal with the contempt. After which the president acting upon his powers conferred under the article 143 of the constitution referred the question concerning parliamentary privileges to the Supreme Court. The Supreme Court in response to that said in the matters of dispute relating to the houses of parliament and the high court, first the high court and then on appeal Supreme Court is conferred with the power to adjudicate upon the matter and is the final authority over the same because the Indian courts the arbitrator. The court held this view because the constitution of India, for the reason of it being federal in nature is fundamental and central to federalism and ensure that the federal or the state do not overstep their authority. The constitution provides the high court and Supreme Court under article 226 and 32 respectively to enforce the fundamental rights against the state. The legislature however did not take the advisory opinion of the Supreme Court to be binding upon them but this case does indicate the alteration in the views of the Indian judiciary.
There are a lot of statutes in India exhibiting the legislature’s intention to block out the judicial review by the means of finality clause. This further excludes the jurisdiction of the civil court upon these matters under section 9 of the civil procedure code. However, it can only exclude the superior court from interfering in the matter but cannot bar the supervisory jurisdiction of the high court and Supreme Court under article 226 and 32 respectively. Thus, to ensure that due process is followed, the Supreme Court in the case of Dhulabhai v. State of Madhya Pradesh, propounded that the jurisdiction of the civil court can only be ousted if the statute provides for substantial remedies that a civil court would do. Thus upon establishment of appropriate forum the jurisdiction of the civil court can be assumed to be ousted. However to keep in check the discretion enjoyed by the administration is not arbitrary the courts can be said to have distinguish the arbitrary discretion of the administration into two categories, first being the “abuse of discretion” exceeding their authority and the second is “non-application of mind” where the administration omits to do what it was supposed to do.
However, the change in the Indian judiciary became evident from the Supreme Court’s ruling in the case of Maneka Gandhi v. Union of India, the brief facts of the case are the Maneka Gandhi’s passport was seized without any conclusive reason and the appellant was not given a chance to be heard. Which violates the principle of natural justice i.e. right to be heard. The Supreme Court held that the “procedure established by law” under article 21 of the Indian constitution has to be “reasonable, just and fair”. Also, the ruling of the AK Gopalan case has been outright rejected by the Supreme Court in this case. Thus from the case it can be concluded that the principles of natural justice were protected but only on a personal liberty level. This Case furthered the concept of “due process” in Indian law at least for protecting individual liberty.
The “unconstitutional constitutional amendment” Amendment 42 to the Indian Constitution raised various question about the power of judicial review and amendability of the Part III of the Constitution of India. The constitutionality of the first amendment was first challenged in Shankari Prasad and then was subsequently amendment seventeenth was challenged in Sajjan Singh Case. However, it was only in the case of Golaknath that Supreme Court with the majority of five to six decided that parliament cannot make any amendment to the constitution which abridges or take away the fundamental right in the part III of the constitution. Thus makes an important and a landmark observation in this case that the Supreme Court is conferred with reviewing the constitutional amendment under Article 13(2) of the constitution. However, in opposition to this judgment the parliament enacted a twenty-fourth amendment giving itself the authority to amend whatever part it wants. This gave rise to the emergence of “basic structure” doctrine in the Keshavananda Bharathi case, which meant that amendment can be made as long as it not take away the basic structure of the constitution. These developments established that the power of the judiciary of judicial review cannot be completely excluded.
The “partial exclusion of the judicial review” was permitted in the case of Sampath Kumar v. Union of India. It upheld that the decision of the administrative tribunal can be made immune from the judicial review by the high court if the administrative tribunal constitutes “judicial element”. To completely exclude the judicial review there has to be an appeal procedure. This view, however, is not well appreciated in the Indian context, it is followed that judicial review cannot be excluded completely even if there were alternative remedies in the cases where the tribunals have acted beyond their jurisdiction.
Conclusion
The finality clauses or excluding judicial review from the administrative tribunals was not a much debated issue in India before the parliamentary privilege case. Before this case, the position was that due process is not a part of Indian constitution or else it would have been included in the constitution by the constituent assembly. However, in this case, the Supreme Court said in the matters of dispute relating to the houses of parliament and the high court, first the high court and then on appeal Supreme Court is conferred with the power to adjudicate upon the matter and is the final authority over the same. Even though a lot of statutes in India invoke finality clauses the scope of judicial review is never completely excluded from its purview, the jurisdiction of the civil court can only be ousted if the statute provides for substantial remedies that a civil court would do. The courts in the Indian subcontinent have drawn on from the encounters of Common lawyers yet they needed to manage novel circumstances emerging somewhat out of political exigencies and halfway out of the important constitutional provisions. The Courts have confronted the problem valiantly in guarding the job of Judiciary in looking at the legality of legislative activities despite express and inferred Ouster Clauses. In doing so they have relied heavily on novel doctrines with innate implications. Thus even though these doctrines and provisions only partial exclusion of the judicial review is permitted in India.
References
- S. A. de Smith, ‘Administrative Finality and Judicial Review’ (1957) Vol 20 The Modern Law Review < https://www.jstor.org/stable/1092190>
- A. Martin Tollefson, ‘Administrative Finality’ (1931) Vol. 29 Michigan Law Review < https://www.jstor.org/stable/1281232>
- S.A. de Smith, ‘Statutory Restriction of Judicial Review’, (1957) Vol 20 The Modern Law Review < https://www.jstor.org/stable/1091190>
- M A Fazal, ‘Effectiveness of Ouster Clauses in India’ (1996) 25 Anglo-Am L Rev 482 <file:///C:/Users/hp/Downloads/25AngloAmLRev482.pdf>
- S P Sathe, ‘Judicial Review in India: Limits and Policy’ (1974) 35 Ohio St LJ 870 <file:///C:/Users/hp/Downloads/35OhioStLJ870.pdf>
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