Report No. 14

31. Foreign Systems (General).-

While each country has evolved procedures best suited to its legal system and tradition, certain broad features emerge from our examination. The French system has its origin in the political and legislative set up of France. In its examination of administrative decisions both on facts and law, the French system is much wider in its sweep than the system that prevails in the United Kingdom and the United States of America. Decisions of administrative tribunals and officers which would not be open to examination in the latter countries are set aside in France. For this purpose the French citizen has to approach special tribunals operating under special laws and bound by precedents of their own.

In the United Kingdom and the United States, the recommendations made and the legislation introduced leave untouched the powers of the courts to reach and quash administrative decisions. All the three Committees which have considered the problem in England have recommended that the jurisdiction which the courts have at the moment by way of writs of certiorari and mandamus in regard to these administrative tribunals should continue and the procedure simplified so that the citizen may find it easier to approach the ordinary courts. What they appear to have in mind are procedures somewhat analogous to those our Constitution has provided in Articles 32, 136 and 226.

But the Committees recommended that the existing powers of the courts should be supplemented by the creation of an administrative division of the High Court or by the conferring of a right of appeal on questions of law either to a newly constituted administrative division of the High Court or to the ordinary courts. In the United States also, the powers of the ordinary courts by way of the writ of certiorari and other writs remain unaffected. The legislation in the United States lays down, as we have already seen, standard procedures for observance by administrative bodies.

What therefore has to be thought of in our country is not the curtailment of the existing powers of the courts in regard to administrative decisions. The continuance of these powers is essential and imperative. What is needed are supplementary and extended powers which will enable greater control to be exercised by the ordinary courts on the administrative bodies so that the rule of law will be enforced and the citizen protected.

The study of the French system by Prof. Haiwon referred to above tells us how peculiarly French in its origin and development is the system which has at its head Conseil D'Etat and how unsuitable such an institution would be in England or any other country.

Nor as appears from the observations of Professor Jaffe quoted above, is the American Administrative Procedure Act a model which we can without radical modifications, copy in India.

Our problem therefore is to suggest some supplementary and effective measures which can be conveniently fitted into the pattern of our constitutional and judicial framework.

32. Existing position in India (Available remedies).-

The provisions relating to judicial control of administrative process enshrined in Articles 32, 136, 226 and 227 of our Constitution may now be examined.

33. Article 32.-

Article 32 which empowers the Supreme Court to issue inter alia suitable prerogative writs for enforcing the fundamental rights guaranteed in Part III is itself a guaranteed remedial right. A citizen whose fundamental right has been infringed can, if he so chooses, directly approach the Supreme Court without having to go to the High Courts in the first instance1. All actions of the administration-judicial, quasi-judicial or semi-judicial, ministerial or even purely discretionary-are within the control of the Supreme Court. The Court can by the issue of an appropriate writ quash the offending order even though the impugned action is purely of an administrative character.2

1. Romesh Thapper v. State of Madras, 1950 SCR 594.

2. Dr. Ram Krishan Bhardwaj v. State of Delhi, AIR 1953 SC 318.

34. Article 136.-

Article 136 confers plenary powers upon Supreme Court and inter alia enables it to entertain appeals from the determination or an order made or passed in any cause or matter by any tribunal in the territory of India other than those constituted under any law relating to the armed forces. As was pointed out by Mahajan C.J., in the Dhakeswari Cotton Mills case, AIR 1955 SC 65. it is neither possible to define with any precision the limitations on the exercise of the discretionary jurisdiction vested in the Supreme Court by virtue of the constitutional provision contained in Article 136 nor is it feasible to fetter the exercise of this power by any set formula or rule.

"When the Court reaches the conclusion that a person has been dealt with arbitrarily or that a court or tribunal within the territory of India has not given a fair deal to a litigant, then no technical hurdles of any kind like the finality of finding of facts or otherwise can stand in the way of the exercise of this power because the whole intent, and purpose of this Article is that it is the duty of this Court to see that injustice is not perpetrated or perpetuated by decisions of courts and tribunals because certain laws have made the decisions of these courts or tribunals final and conclusive".1

1. P. 69.

But the power of the Supreme Court under Article 32 is restricted only to cases of the infringement of fundamental rights. Article 136 would also seem to empower the court to entertain appeals only from the orders of tribunals-that is, bodies which are under an obligation to act obligation to act judicially or quasi-judicially.

35. Article 227.-

Article 227 gives the High Courts only powers of "superintendence and does hot empower them to admit appeals as Article 136 does. It would also appear to be restricted in its application to bodies, which are under am obligation to act judicially or quasi-judiciary.

36. Article 226.-

The real constitutional protection of the citizen against arbitrary administrative action is Article 226 which empowers the High Courts to issue any directions, orders or writs not only for enforcing fundamental rights but "for any other purpose".

In our chapter on Writs we have pointed out how largely this constitutional provision has been availed of by the citizen, particularly for the vindication of his fundamental rights. The fundamental rights conferred by the Constitution would have lost much of their significance but for this simple and quick remedy which the Constitution has provided against their infringement.

The High Courts' jurisdiction under ArtiCle 226 still remains to be authoritatively defined. Will it extend to purely administrative action as distinguished from quasi-judicial determination? However, it has been clearly laid down that the High Courts acting under Article 226 do not and cannot sit in judgment as courts of appeal in cases where the statute invests the administrative authority with power and discretion. The Supreme Court said:

"However extensive the jurisdiction may be" (under Article 226) "it seems to us that it is not so wide or large as to enable the High Court to convert itself into a court of appeal and examine for itself the correctness of the decisions in view and decide what is the proper view to be taken or order to be made".1

1. Veerappa Pillai v. Raman and Raman Ltd., 1952 AIR SC 192 (196).

Judicial decisions would appear to lay down that the courts will interfere under Article 226 in cases of excess or want of jurisdiction or an error of law apparent on the face of the record or of violation of the principles of natural justice. The Court may also interfere in cases of findings of fact when these findings are based on no evidence at all or on irrelevant evidence. The courts will also interfere where the authorities have failed to comply with some mandatory provision of the law. However, it still remains to be decided whether it is open to the courts acting under Article 226 to interfere with purely administrative action.

37. Other remedies.-

We have also some remedies like a suit for a declaratory decree under section 42 of the Specific Relief Act or for an injunction. These though more extensive in scope than Article 226 are less speedy and are therefore often valueless.

38. Administrative Bodies.-

The number of Indian statutes which constitute administrative authorities, purely administrative and quasi-judicial, is legion. Some of these affect valuable rights of the citizen and impose obligations upon parties. These may be broadly classified as our revenue and taxation laws, labour laws and land laws. Some of them provide no right of appeal or revision even to higher administrative authorities. Others confer right of appeal and revision but these lie to the higher administrative authority and not to any judicial authority. It is only in a few cases that we find an ultimate appeal or revision given to a court of law. Finally, in a number of statutes care is taken to exclude in express terms the appearance of lawyers before the administrative bodies and to bar the courts from entertaining any appeal or revision.

It is surprising that duties of customs should be levied on sea and land frontiers under laws which leave not only the determination of the duty but the levy of penalties of confiscation and fine to administrative officers and provide an appeal and revision to superior officers, prescribing no procedure whatever for the hearing of these appeals and revisions. Not infrequently under these Acts, the citizen is subjected to heavy penalties without any opportunity of a review by a judicial authority in matters of a clearly quasi-judicial nature.

39. Another class of disputes in which the validity of administrative action is frequently challenged in the courts are those in which Government servants seek redress for real or fancied violations of their constitutional safeguards or the breach of the rules regulating their conditions of service.

A large volume of case law has developed on this subject and the number of such cases are increasing. This is in part due to the growing complexity and unintelligibility of the rules which has led a judge of the Supreme Court to remark1...no one can be blamed for not knowing where they are in this wilderness of rules and regulations and coined words and phrases with highly technical meanings. Instances are to be found in the Law Reports of many frivolous applications. In a number of cases the courts had however to intervene because it was found that clear injustice had been done as a result of a deliberate violation of clear and mandatory provisions of the Constitution or the service rules.

1. Per Bose. J., K.S. Srinivasan v. Union of India, AIR 1958 Sup 432.

The problem presented by such petitions seeking redress in service matters require serious consideration. For the reasons already stated we do not favour a curtailment of the jurisdiction of the High Courts under Article 226. At the same time there is danger that if a large number of petitions of this kind continue to be filed, the High Courts may be turned into tribunals for deciding disputes between the Government and its employees.

A simplification and re-drafting of the relevant rules is very necessary. In addition we would also recommend the establishment at the Centre and the States of an appellate tribunal or tribunals presided over by a legally qualified Chairman-and with experienced civil servants as members to which can be referred memorials and appeals from government servants in respect of disciplinary and other action taken against them.

The establishment of such a tribunal or tribunals will serve a double purpose. Apart from providing a speedy remedy in genuine cases of injustice, the existence of a speaking order drawn up by a qualified tribunal will enable the courts to reject all frivolous petitions summarily and entertain only those cases where their intervention is really necessary in view of the importance of the constitutional and legal points involved.

There is also a vast field of administrative action in which an administrative authority may contravene the law without opportunity to the injured citizen to obtain redress from any judicial authority for the unlawful action of the authority.

40. Establishment of Administrative Tribunals undesirable.-

That broadly is the problem which needs a solution. In solving it we have to bear in mind some basic considerations.

It would be derogatory to the citizens' rights to establish a system of administrative courts which would take the place of the ordinary courts of law for examining the validity of administrative action. It may be that in view of certain inherent advantages like speed, cheapness, procedural simplicity and availability of special knowledge in extra-judicial tribunals, these may be useful as a supplementary system. But it will not be right to conceive them as a device to supplant the ordinary courts of law. It would be unthinkable to allow judicial justice administered by courts of law to be superseded by executive justice administered by administrative tribunals.

It would be a step backward to erect in the place of deliberate judicial tribunals restrained by formal procedure and deciding according to fixed principles, off hand administrative tribunals, in which the relations of individuals with each other and with the State would be adjusted summarily according to notions for the time being of administrative officers, unfettered by any rules as to what general interest or good conscience demands. So conceived, the administrative court might well be regarded "as a court of politicians enforcing a policy, but not a court enforcing the law"-a description which Maitland gave to the Court of Star Chamber.

One may in this connection use the felicitous phraseology of Mr. E.F. Woodle, President of the Cleveland Bar Association: "Justice cannot stand half free and half enslaved * * * * We cannot have in this country two systems of dispensing of justice one * * * safeguarded by restrictions and limitations and privileges which have been found to be wise and necessary through centuries of experience, and another system administered largely in disregard of our principles of jurisprudence, largely in disregard of the limitations, restrictions and privileges which our courts have found it wise and necessary to observe".1

1. 28th Journal of the American Judicature Society, 118-119: (1944) cited by Walter Cellihorn Individual Freedom and Governmental Restraint, pp..-10.

Though we may imbue our administrative tribunals with a greater judicial spirit and insist upon their observance of the rules which would obtain in any system moulded on the principles of natural justice, the ultimate review must lie with our High Court judiciary. However sound and well-equipped an administrative judiciary may be, it cannot command from the public the confidence which the irremovable superior judiciary in High Courts have enjoyed for over a century and more. Any scheme of administrative adjudication which has not at its apex the High Court or a High Court Judge in some manner, will fail of its purpose.

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