This article is written by Abhishek Kurian, from National Law University, Odisha. This article deals with the functional aspects of administrative justice with a focus on the problems that are associated with this system of justice.
Administrative laws play a crucial role in any democracy. It is that part of the entire governmental set-up that puts a check on the government and prevents any misuse of power and authority. Administrative law comprises all the laws that deal with the functioning of the government. It includes the laws concerning their duties, powers and their constitutional framework as well. Now, why is this so important in a democracy?
Administrative laws define the powers and boundaries of the government. This ensures that the powers of the government are limited and are not arbitrary in nature. This is a major factor of support for the Rule of Law.
As we know, the Rule of Law states that all people and institutions are equal before the law. Everyone in the society, including the government and its three organs- the legislature, judiciary and the executive must adhere to this Rule of law.
Administrative laws make sure that this rule of law is practised and that all the powers and rules of the government fall well within its legal boundaries. All decisions made in a position of public authority need to be in conformation with democratic provisions.
It eliminates the possibility of the government exceeding its power and if at all the government does exceed its power it also provides for remedies to the public to fight against any injustice caused. Now that we understand what kind of actions come under administrative law let’s look at the position and origin of administrative justice.
Administrative justice in India
Need for administrative justice in India
Before we deal with the topic, let’s briefly understand the need for administrative justice-
Let’s assume my elder brother and I get into a fight. My parents would be the one who would try to resolve this dispute. Now, what happens if my parents and I get into a disagreement? There is a need for an unbiased person who could effectively resolve the dispute between both of us.
Similarly, there could be special bodies that would help in solving disputes between the government and the citizens through administration. While disputes between the citizens are taken care of by the regular judicial courts there is the need for a separate body to handle the issues between the State and the citizens. This body must be independent which means that the interference of courts must be minimal. Such a means of dispute resolution is called administrative justice.
Basically, it is an effective remedy for those problems of the public that are caused by any actions of the government and includes the administrative actions that concern the public interest.
Development of administrative justice in India
As of yet, there have been no statutes that specifically deal with the laws of administrative justice. But, there have been a lot of developments in this regard that had been derived from the Constitution. One of the major turning points in its provisions came from the Swaran Singh Committee in 1976.
The report from this committee included certain recommendations for improving the status of administrative justice which served as a starting point. Some of them that served as a foundation was-
- The constitution of an Administrative Tribunal at both the State level and the Centre level for issues that were related to service.
- Constitution of labour courts and tribunals.
But it was only after the 42nd Amendment and the enactment of The Administrative Tribunal Act,1985 that a complete administrative tribunal was established for the first time. As understood from the Swaran Singh Committee, this administrative tribunal was created for issues relating to service of the public officials.
This was done so that the courts were saved from hearing the writs against the public authorities which were to be taken up by tribunals as said in the case of Kamal Kanti Dutta vs. Union of India. It was suggested that an administrative tribunal should be the apex body for adjudication of such matters that were related to the service of public officials
Present forms of administrative actions
The legislature that is the law-making body of the country enacts a statute which serves as a guideline. After this, the government or other administrative bodies are conferred with the statutory powers by the legislature. This way as we can there is the delegation of the powers to the other bodies that support the government and hence is known as delegated legislation.
All democratic countries use some kind of delegated legislation to distribute legislative power to other administrative bodies.
These are administrative bodies that are quasi-judicial in nature and established to reduce the burden of the courts and to take on matters or disputes that are related to the administration of service of public bodies or authorities.
Tribunals are usually less formal in nature and not the focus is on the adjudication and hearing rather than the formal procedures of the court. The Chairperson is usually a judge but such a qualification is not mandatory as he/she could also be a secretary in the ministry of the Central Government or any person who has adequate knowledge in that particular field.
Judicial review is a fundamental part of democracy as it helps in assessing and restricting the powers of the government and its decisions are not arbitrary or inconsistent with the democratic principles of the country. This is an essential right for the citizens in a democracy.
Judicial review is of three types:
- Judicial review of the legislature: When a new statute or act is made by the law-making body, it can be challenged if it seems to be constitutional, for example, the CAA act that could be subject to judicial review and may be declared unconstitutional.
- Judicial review of executive actions: Any action that is taken by administrative bodies may be subject to review so that these bodies are not able to exceed their powers.
- Judicial review of judiciary: We are all well aware that the judgements of the court are also subject to review and in the form of appeal to a higher court, which helps in eliminating the injustice that can be caused in one court or its procedures.
Duties and responsibilities of courts to administer justice
Courts have a major role in administering justice. Judicial control is a very important and effective part of administrative action. The current scenario of India’s administrative system is in dire need of judicial control. While there is a structured division of powers, there is always the possibility of intrusion of powers among the three organs.
Article 32 and Article 226 have the power to issue writs or directions which would apply to the other governmental bodies in case of any matters that are raised for the public interest.
But if there is any overlapping or dispute between the two bodies the judiciary must rectify the same.
Compulsion and restraint of administrative justice
As the system of justice becomes more transparent and as the people have started to raise their voices against injustice, the need for a proper review of administrative decisions has become increasingly important. The powers given by the Constitution must not be misused in any way and hence there is an increasing need for a more well-defined system of administrative justice, that would specify the guidelines and principles that the government must adhere to. It would also give a remedy to those who are dissatisfied by administrative actions.
Its compulsion would aid in better administration as it would serve as a helping hand to the courts and also take under its jurisdiction, many disputes regarding administrative decisions and services relating to public authorities.
Despite this, there are some reasonable restraints on administrative justice which are as follows:
- The tribunals base their decisions by the application of existing government policy and do not have the authority or independence to deviate from the laws that are set out by the courts.
- Some limits can be put by the legislature regarding the administrative rule-making and delegated legislation.
- The tribunals are not able to exercise complete independence as the executive and judiciary could encroach on its powers.
- The executive has excessive power over the removal of a member from the tribunal as there is no proper method for removal of members. This gives the executive power by default. This is considered unfair as this can create a bias towards the executive.
- There is no proper overview of tribunals by the Ministries that they come under as there is no uniform system under which all the tribunals work. This often creates problems in administration which result in smooth functioning.
Principles of natural justice
In the process of administration of justice, a fundamental principle that must be adhered to is Natural Justice. There are two principles of natural justice, without which no legal judgement can be considered fair and just. They are-
Nemo judex in causa sua
This principle translates to “No man shall be the judge in his case”. It essentially means that a person cannot judge his cause of action as it could result in severe injustice. It is also known as the rule of biases, as it attempts to eliminate any partiality or bias that could be caused by the judge.
The reason why this rule is so crucial in Administrative justice as it focuses on the requirement of impartial judgement. Such a principle is necessary for disputes that are related to administrative matters as it would ensure that the State is not allowed to adjudicate on the matter, resulting in an unbiased judgement.
Audi alteram partem
This principle means “Hear the other side”, which in effect implies that each party must be given the opportunity of a fair hearing. It includes two rights:
- Right to proper notice before the case, which gives the party enough time to prepare a strong case.
- The right to be heard fairly, in front of an unbiased panel/body and present their case.
This principle connects to administrative justice as it would ensure that the State is not able to exceed its powers and make arbitrary decisions. It would guarantee that reasonable decisions are made after hearing both sides of the case.
How to wield power without forgetting justice
The setting up of institutions and other independent bodies for providing administrative justice requires reasonable delegation and exercise of power by the parliament. Upon acquiring this level of independence and discretionary power, the primary purpose of providing justice must not be lost. These bodies must take due care to exercise their powers in a fair and just manner.
This is where the principles of natural justice play a major part as they should serve as a guiding basis while exercising discretion.
Along with the principles of natural justice, there is also the obligation of a tribunal to give a sound rationale for their judgement and not take any arbitrary measure or steps to arrive at a conclusion.
If a tribunal adheres to these principles, it would result in a fair procedure and judgement. This is essential as the power and jurisdiction to these bodies is given so that there is a lesser burden on the judiciary and it does not have to interfere in cases that deal with specific instances
Important case laws
Let’s look at a few cases under the functioning of administrative bodies and the emphasis on following the principles of natural justice.
Board of Education v. Rice (see here)
Whether the Board of Education is justified in exercising its powers?
The teachers in a non-provided school filed a complaint against the managers of the school regarding their salaries, to the Board of Education. They complained that the teachers of other funded schools were paid at higher rates. This resulted in ill-feelings between the two parties. Here, the Board acts as an independent tribunal. The board reported that the managers were wrong in their actions and also stated that they failed to maintain the school efficiently. This decision made by the Board of Education was challenged by the managers.
The court was not able to reach a conclusion regarding whether or not the managers had efficiently managed the school but asserted that when a decision-making body like the Board is given such power, they are under an obligation to act in good faith, giving both sides a fair and equal opportunity to be heard. Any controversial matter between the parties must be decided only after listening to them carefully and allowing them to contend on those issues.
Local Government Board v. Arlidge
As discussed, in the principles of natural justice that reasonable notice must be given to the party under Audi alteram partem. But there may be situations where the government is under no such obligation to issue a notice.
In an English case, the Local Government Board vs. Alridge, the decision of the local authority to destroy the house of the appellant was challenged in court.
It was held that authority of the Government when adjudicating on a housing appeal is not required to give notice to the appellant. Additionally, it was stated that when a householder has been deemed to be unfit for habitation the legal right to be heard orally does not exist. The court further clarified that the right to be heard does not necessarily mean the right to be heard orally.
Nakkuda Ali v. Jayaratne
This is another case that shows justified deviance from natural justice. In this case, the license of a textile owner is revoked by the Controller of Textiles. He seeks to challenge this decision before the court seeking to quash the revocation on the grounds that he was not heard and did not have the opportunity to make a fair case.
It was held by the Court that there was no existing duty of the Controller to comply with the principles of natural justice as the issue in the case is not of those regarding rights. The action of the Controller was a part of his executive duty.
R. v. Metropolitan Police Commissioner exp. Parker, 1953
In this case(see here), the driver’s license of a cab driver is revoked by the Commissioner of Police. An inquiry was conducted where the cab driver wanted to present a witness but this was not allowed. It was argued by the driver that the decision of the Commissioner based on the inquiry was wrong and opposed to the principles of natural justice.
The Court concluded that there was sufficient evidence that proved that the driver indulged in immoral activities like allowing his cab for intercourse or even for carrying wrongful trades.
There were provisions which allowed for the revocation of a license if the license holder is found to be unfit to possess such a license. Also, the court stated that the commissioner took disciplinary action against the driver and he does not act as a judicial body.
This implies that the provision to quash such an order cannot be granted and hence natural justice cannot apply in this case.
What is the importance of initial decision making
Let’s just imagine that I start a restaurant without any experience, skill or qualification. I have not even bothered to talk to people already in the business. This kind of start would naturally result in many blunders in the business that would cost me a lot of money and other resources.
Instead, if I had focused on the common mistakes that people make and deliberately made an attempt to avoid them, I would have been more efficient with my resources.
This is also known as ‘Right First-time’ decision. Under this principle, a focus is made on initial decision making under administration to foresee the possible consequences of a wrong decision and making changes accordingly.
Administration of justice could be made more effective by eliminating the redundancy of errors if there is proper decision making done by the administration. A report by the Administrative Justice and Tribunal Council showed the poor decision making by public bodies and highlighted the low level of learning from effective feedback and appeals.
The government by making proper initial decisions could reduce a lot of unnecessary costs, speeding up the delivery of justice and also reduce the work of tribunals, thereby smoothening the entire process.
Benefits of the Welsh approach
The system of administrative justice established in Wales is very unique and prioritises on providing administrative justice at a much higher degree. Let’s understand what the Welsh approach exactly is and how it is implemented.
The traditional approach is the focus on the higher courts and their judgements. For example, in India, the Supreme court and High courts are usually considered the primary courts while giving secondary importance to the lower set-up that includes the tribunals and the ombudsman.
In Wales, the administrative bodies are given prime importance with the establishment of an administrative court in the capital city of Cardiff. The administrative court is a special court that exercises jurisdiction of the high courts in Wales and deals with the administrative law matters in the country. This is to be considered to be the apex body and then come other tribunals. The appeals in these tribunals could be subject to judicial review which would be brought to the administrative court.
By this administrative law conception, Wales overcomes a major problem that exists in the traditional conception, i.e. paying less attention to the majority, since a larger number of appeals are heard in these tribunals.
This system also focuses on the need for efficacious grievance redressal and feedback mechanism for which there would be public accountability. The traditional system consists of commissioners who look over the grievances. The Welsh approach attempts to combine the commissioners and the ombudsman to achieve a more efficient body that would be held accountable for the grievances of the public.
Another benefit of this approach is that these tribunals exercise more independence using this conception. In the traditional approach, the decision arising out of the judicial review by courts needs to be abided by the tribunals, thereby making them less independent. In this approach, the tribunals have the freedom to deviate from the previous decisions of the court.
Difference between administrative justice theory and reality
Administrative justice is an unavoidable intrusion into the powers of the organs of the government. In theory, it is supposed to restrict the powers of the government ensuring that its decisions are reasonable and constitutional as well. Such protection would save the citizens from any misuse of power by the administrative bodies.
In reality, we are all well aware that such misuse or abuse is still prevalent in our nation. That is because the present forms of administrative bodies are still not very strong. They have their own limitations and judicial restraint often comes in its way of administering justice.
But that is because there is often the need for reviewing administrative action by courts. This results in the restrictions to the tribunals and therefore they are not able to completely satisfy their purpose.
Need to move tribunals online
As discussed before, tribunals were established to lessen the burden of cases from the courts. These adjudicatory bodies serve as an effective means of resolving disputes as they deal with specialised issues along with disputes related to administrative matters, both that are essential for a working democracy.
The COVID-19 pandemic has resulted in an unprecedented situation where the working of almost all justice-related matters came to a standstill. But it was decided by the court that the process of delivering justice is not one that can be brought to a halt. There is no certainty as to when the situation at hand would resume to normalcy, considering the extension of lockdown in many cities and the increasing number of COVID cases and deaths.
Moreover, the number of pending cases and the fresh cases that are filed could result in the entire system being clogged by the cases. This situation has also led to an unfortunate series of events as there is a rise in the number of disputes relating to housing, employment and contractual matters as well.
Also, even after the lockdown is called off there is no guarantee as to how many hours would the courts and tribunals be functioning or how many cases would they take each day. The situation would be such that people might hesitate to stroll outside and not prefer public hearings.
In the light of these matters, it was decided by many courts that the hearings of urgent matters would be held using online platforms. It is soon expected that the hearing of all kinds of matter would also be heard using video conferencing.
The need for online tribunals as well, cannot be ignored considering the present situation as the tribunals would not only aid in the better administration of justice for the society but also help in speedy disposal of matters, thereby reducing the pile of cases that would be received by the court post the lockdown.
Many tribunals, like the Company Law tribunals and the NCLT (see here), already started hearing urgent matters in April and May and it is expected that other quasi-judicial bodies would also take this step.
There is also not much that can be said regarding the future situation of courts and the filing of suits. The court and the citizens will face many problems with its shortage of time, the inadequacy of online facilities and also inability to approach courts. There might also be cases where one party lives in a city which is under containment while the opposite party is not. In such situations, conducting hearings and carrying on with proceedings may lead to an unfair process. This would be a violation of Article 14 i.e. Right to Equality and hence the administration of justice would suffer delays.
Such times would desperately require the shift of judicial and quasi-judicial bodies to online forums while resuming the process of dispute resolution and making justice accessible to all.
Enhanced quality of administrative justice is essential to open 21st-century democracy and a strong administrative justice system is equally important if the government is to maintain the trust of the public in its ability to deliver quality public services.
- There must be serious efforts to provide fair access to administrative justice and eliminate the obstacles that work against it.
- The Government must work on analysing and recognising their poor decision-making in the past which resulted in failed attempts to provide administrative justice to the people.
- The Government must look into the enactment of a statute like the Promotion of Justice Act, 2000 which would define and monitor fair administration of justice.
- There need to be reforms that are to be made regarding the functioning of tribunals. It is about time they are accessible online.
- The importance given to the quasi-judicial bodies must also be increased as they play a crucial role in a democracy in the making and reviewing of administrative decisions.
- For the purpose of uniformity in administrative justice amalgamation of tribunals could be done as the system is, in England, Canada, Wales and Scotland which would serve as a successful model. This would help in providing a structure that would be more flexible and accessible.
- Adequate care must be taken to ensure that administrative tribunals do not become like courts and instead must maintain its informal nature. The focus must be on justice and not the formal procedures.
We understand that although there is an efficient system of administrative action in our country there is a huge scope of improvement. We must look into the different options and maybe even adopt a few of the best practices from other countries which have successfully established a good system to provide administrative justice as it would remain to be a very crucial feature in a growing democracy like India.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: