Administrative Law

Class Note 1

Shuvro Prosun Sarker

B.A. LL.B (Calcutta), LL.M (NUJS), PhD Candidate (NUJS)

Assistant Professor

School of Law, KIIT University

Disclaimer: This class note is skeletal in nature and comprising only

points of discussions. So this note should not be construed as sample

answers or model answers for the purpose of any examination.

© Shuvro Prosun Sarker, 2014.

42nd Constitutional Amendment (In General):

Enacted During the Emergency in 1975.

It is regarded as the most controversial constitutional amendment of Indian history.

Many people name this amendment as the “Constitution of Indira”

Changes done through this amendment:

The Amendment was meant to enhance enormously the strength of the Government.

Gave preponderance to the Directive Principles of State Policy over the Fundamental Rights.

Established the supremacy of Parliament and curtailed the powers of Judiciary.

Specific Changes:

1. Preamble

The characterization of India as ‘Sovereign Democratic Republic’

has been changed to

‘Sovereign, Socialist, Secular & Democratic Republic’.

2. Parliament and State

The life of the Lok Sabha and State Legislative Assemblies was extended from 5 to 6 years.

It amended Article 74 to state explicitly that the President shall act in accordance with the advice of the Council of Ministers in discharge of his duty .

3. Judiciary

It inserted Article 32A in order to deny the Supreme Court the power to consider the Constitutional validity of a State law.

Another new provision, Article 131A, gave the Supreme Court an exclusive jurisdiction to determine question relating to the Constitutional validity of a central law.

Under Article 144A the minimum number of judges of the Supreme Court to decide a question of a Constitutional validity of a law was fixed as at least seven and further, this required two-thirds majority of the judges sitting declare law as unconstitutional.

While the power of the High Court to enforce fundamental rights remained untouched, several restrictions were imposed on its power to issue writs for other purposes.

4. Federalism

The Act added Article 257A in the Constitution to enable the Centre to deploy any armed force of the union, or any other force under its control for dealing with any grave situation of law and order in any State.

5. Fundamental Rights and Directive Principles

A major change that was made by 42nd Constitutional Amendment was to give primacy to all directive principles over the fundamental right contained in Articles 14, 19 or 21.

The 42nd Constitutional Amendment added a few more directive principles free legal aid, participation of workers in management of industries, protection for environment and protection of forests and wildlife of the country .

6. Fundamental Duties

The 42nd Amendment Act inserted Article 51-A to create a new part called IV-A in the Constitution, which prescribed the fundamental duties to the citizens.

7. Emergency

Prior to 42nd Amendment Act, the President could declare emergency under Article 352 throughout the country and not in a part of the country alone. The Act authorised the President to proclaim emergency in any part of the country.

8. Administrative Tribunals

Article 323A and 323B were inserted in the Constitution to constitute Administrative Tribunals.

Under Article 323B enabled the legislature to set up tribunals and to exclude the jurisdiction of High Courts under Article 226 or Article 227.

Sampat Kumar vs. Union of India

AIR 1987 SC 386

Under Article 323A parliament enacted the Administrative Tribunals Act, 1985.

This Act by Section 28 excluded the power of High Courts to exercise judicial review in service matters under Article 226 and 227.

The issue raised in this case was with regard to the validity of this Act.

Tribunal is a substitute of the High Court and is entitled to exercise the powers thereof. ……………………….Ranganath Mishra, J.

The impugned Act excluding the Jurisdiction of the High Courts… and vesting such jurisdiction in the Administrative Tribunal can pass the test of constitutionality…

………………………………………P N Bhagwati, C.J.

Thus, Supreme Court upheld the validity of the Act.

Post Sampat Kumar:

Administrative Tribunal fails to-

Functioning was not satisfactory. Lacked competence, objectivity and judicial approach.

Not successful in creating an effective alternative mechanism for service matters.

Arrears Committee (1989-90) criticized the tribunalization of justice.

R. K. Jain vs. Union of India

(1993) 4 SCC 119

Supreme Court expressed anguish on working of the tribunals. SC expressed that the sole remedy of judicial review under Article 136 was ineffective and suggested to form an expert body to consider whether “an appeal to a two judge bench of High Court can be given from the orders of such tribunals”.

L. Chandra Kumar vs. Union of India

(1995) 1 SCC 400

Expressed that the Sampat Kumar Judgment should be reconsidered by a larger bench of the High Court.

Upholding Constitution, independence of judiciary, Judicial review as a basic feature of the Constitution.

Seven-member constitutional bench of the supreme court has unanimously struck down clause 2(d) of Article 323A and clause 3(d) of Art. 323B which provided for the exclusion of the jurisdiction of the high courts under articles 226 and 227 and the Supreme Court under article 32 of the constitution as unconstitutional and invalid as they damage the power of judicial review which is the basic structure of the constitution.

Directions of administrative tribunals will be subject to the scrutiny of Division Bench of concerned High Court.

Defining Tribunal

No precise or scientific definition.

Durga Shankar Mehta v. Raghuraj Singh

AIR 1954 SC 520

“It is now well settled by the majority decision of this Court in the case of Bharat Bank Ltd. v. Employees of the Bharat Bank Ltd. … … that the expression "Tribunal" as used in article 136 does not mean the same thing as "Court" but includes, within its ambit, all adjudicating bodies, provided they are constituted by the State and are invested with judicial as distinguished from purely administrative or executive functions.”

Test for Determination of Tribunal

1. It is an adjudicating authority

2. Other than Court

3. Vested with Judicial Power

4. Judicial power is vested under Statute.

See Jaswant Sugar Mills Limited vs. Lakshmi Chand

AIR 1963 SCC 677, 685

Growth of Tribunals

Increasing governmental functions in socio-economic contexts along with the failure of ordinary Courts of Law to provide expeditious justice is the principle reason behind establishment of administrative tribunals.

1. Traditional judicial system was inadequate to decide and settle all disputes requiring resolution.

2. Can avoid technicalities of rules and evidence.

3. Can take preventive actions.

4. Use of discretion in good faith and.

5. Speedy decision, low cost, understanding social context.

Characteristics of Administrative Tribunals

The main characteristics of Administrative Tribunals are as follows:

1. Administrative Tribunals is the creation of a statute.

2. An Administrative Tribunals is vested in the judicial power of the State and thereby perform quasi-judicial functions as distinguished form pure administrative functions.

3. Administrative Tribunals is bound to act judicially and follow the principles of natural justice.

4. It has some of the trapping of a court and are required to act openly, fairly and impartially.

5. An administrative Tribunal is not bound by the strict rules of procedure and evidence prescribed by the civil procedure.

6. The writs of certiorari and prohibition are available against the decisions of administrative tribunals.

7. Administrative tribunals are not subject to administrative interference in the discharge of their judicial or quasi-judicial functions.

8. Most of the tribunals are not concerned exclusively with the cases in which Govt is a party.

9. Administrative tribunals have to record findings of fact and then to apply the law objectively.

10. Administrative tribunals can summon witnesses, administer oath, can compel production of documents, etc.

JURISDICTION, POWERS AND AUTHORITY

One of the main features of the Indian Constitution is judicial review. There is a hierarchy of courts for the enforcement of legal and constitutional rights. One can appeal against the decision of one court to another, like from District Court to the High Court and then finally to the Supreme Court. But there is no such hierarchy of Administrative Tribunals and regarding adjudication of service matters, one would have a remedy only before one of the Tribunals.

This is in contrast to the French system of administrative courts, where there is a hierarchy of administrative courts and one can appeal from one administrative court to another. But in India, with regard to decisions of the Tribunals, one cannot appeal to an Appellate Tribunal. Though Supreme Court under Article 136, has jurisdiction over the decisions of the Tribunals, as a matter of right, no person can appeal to the Supreme Court. It is discretionary with the Supreme Court to grant or not to grant special leave to appeal.

The Administrative Tribunals have the authority to issue writs. In disposing of the cases, the Tribunal observes the canons, principles and norms of ‘natural justice’. The CAT Act provides that “a Tribunal shall not be bound by the procedure laid down in the Code of Civil Procedure 1908, but shall be guided by the principles of natural justice. The Tribunal shall have power to regulate its own procedure including the fixing of the place and times of its enquiry and deciding whether to sit in public of private”.

A Tribunal has the same jurisdiction, powers and authority, as those exercised by the High Court, in respect of “Contempt of itself” that is, punish for contempt, and for the purpose, the provisions of the contempt of Courts Act 1971 have been made applicable. This helps the Tribunals in ensuring that they are taken seriously and their orders are not ignored.

Rules of Procedure

1. Subject to statutory requirements tribunals have powers to regulate their own procedure.

2. They have powers under CPC, 1908 in respect of summoning witnesses, attendance, discovery, inspection, production of documents, etc.

3. Proceedings of tribunals are deemed to be judicial as per Sections 193, 195 and 228 of IPC and 345 and 346 of CrPC.

4. Technical rules of evidence do not apply to their proceedings and they can rely on hearsay evidence. See Dhakeshwari Cotton Mills vs. CIT (AIR 1955 SC 65), State of Mysore vs. Shivabasappa (AIR 1963 SC 375).

5. Tribunals can not decide cases without evidence on record or can act upon what is not evidence or on a document which is not genuine. See Bareilly Electricity Co. vs. Workmen (AIR 1972 SC 330).

6. Recording of reasons in support of the order is considered to be a part of natural justice, and tribunal is bound to record reasons in support of orders passed by it. See M.P. Industries vs. Union of India (AIR 1966 SC 671).

7. No appeal, revision or reference is maintainable against the order of a tribunal if such right is given by the constituting Statute. But this does not affect the power of judicial review of High Court and Supreme Court.

Finally

Tribunal has to-

1. Act within its jurisdiction.

2. Orders should not be arbitrary or mala fide.

3. Observe the principles of natural justice.

4. Order should not be ultra vires.

5. Should be based on evidence and proper consideration.

Lord Justice Denning observed in R vs. Medial Appeal Tribunal, (1957) 1 All ER 796, 801 –

“If tribunals were to be at liberty to exceed their jurisdiction without any check by the courts, the rule of law would be at an end”.