Monday, November 20, 2006

ADMINISTRATIVE TRIBUNALS ... SOME REFORMS

SAMVAAD... a lawyers’ group 7, Elgin Road Allahabad-211001 organises seminars, workshops, lectures and brings out a newsletter by the same name. It had organised a workshop on the functioning of tribunals. This article was written for the Newsletter brought out on that occasion. It surveys and deals with the history of the tribunals. It recommends bifurcating the High Court into the Senior-Junior Division and providing for an appeal against all decisions of Tribunals to the High Court.1 Since writing od this article, the Supreme Court in L. Chandra Kumar Vs Union of India AIR 1997 SC 1125 has partly accepted the position and has restored the judicial review of the High Courts.

It was in the last century that Dicey claimed,
'it is difficult to believe the administrative courts can by their very nature give that amount of protection to individual freedom which is secured to every (one) ... residing in England.’
But despite this administrative tribunals have come to stay in England. There are more than 2000 Administrative Tribunals in England. From Lord Reid’s opinion in Ridge Vs. Baldwin (1963 (2) AllER 66)
‘we do not have a developed system of Administrative law... perhaps because until fairly recently we did not need it’
to Lord Denning (Breen vs. A.E.U 1971 (1) AllER 1148)
‘It may truly now be said that we have a developed system of Administrative law’
and finally to Lord Diplock (IRC Vs National Federation of Self Employed 1981(2) AllER 93 ),
‘Progress towards a comprehensive system of administrative law- that I regard as having been the greatest achievement of English Courts in my judicial lifetime’
is a long distance covered by the English Courts.

FRENCH SYSTEM
This was not so in the rest of Europe. France makes a distinction in the administration of ‘Droit Civil’ (civil law) and Droit admin­istrative (administrative law). They have a dual system of courts. French administrative law, unlike England or for that matter common law countries including India, deals with claims against government only. It is dealt by a two-tier system of special courts with Conseil d’Etal’as the Supreme administrative court. It is not subject to ordinary courts as we understand it, and is staffed by the cream of French Civil Servants. Ordinary courts deal civil law in France. Most European countries Belgium, Germany, Holland, Italy, Luxembourg, Spain, Portugal, Greece follow the French practice of double jurisdiction. It is England with its common law tradition, which does not follow this practice. We, having inherited those traditions, will benefit from the progress made therein.

DEVELOPMENT IN ENGLAND
The First World War brought about complex social and economic problems. These led to the growth of delegated legislation confer­ring vague and wide discretion on the executive to be supple­mented by department rules & instructions. Considering the dangers in the situation and in order to bring about uniformity, the British Parliament appointed a committee in 1931-32 known as the Donoughmore Committee. The recommendation made by the committee itself led to the enactment of Statutory Instruments Act 1946 and Crown Proceedings Act 1947 but its recommendations for better control and supervision of administrative decision were not implemented. It is only after the Second World War and public concern over the Crichel Down case in 1954 dealing with return of the land compulsorily acquired during war that another committee known as Franke Committee was constituted. It recommended constituting a council on tribunals for general supervision of the tribunal organisation and procedure. This recommendation led to the enactment of the Tribunals and Inquiries Act 1958. It was substituted by another Act of the same name in 1966 & 1971. Among the other recommendations the two important ones were:
  • There should be right of appeal on fact, law and merits
  • There should also be appeal on point of law to the courts and judicial control by the remedies of certiorari; prohibition and mandamus should never be barred by statute.

The British Parliament did not accept that there should be appeal on fact in every case but it has provided an appeal on point of law to a court so that law may be correctly and uniformly applied. All such appeals lie to the Court of Appeals. Apart from this British Court have always held that error of laws can be quashed, on a certiorari. The French system of `Droit Administrative' was not accepted.

THE INDIAN POSITION
The framers of our Constitution did not accept the French system and permitted judicial review to the High Court and the Supreme Court. The Law Commission of India has compared various systems of administrative law. The Commission in it’s 14th report (volume 2), points out that the French system of administrative law need not be imported to India and judicial review obtaining under India's Constitutional system provides adequate avenues of redress to an individual affected by State action. But then this was practically undone by the 42nd Constitutional amendments by inserting Article 323-A and 323-B during the emergency.

Article 323-A gives power to the Parliament to provide for law in respect of what is to be known as service matters. Article 323-B permits the appropriate legislature, which includes a State Legislature, to provide for adjudication of certain matters relating to tax, labour, election etc. to the exclusion of all courts except the Supreme Court under Article 136 of the Constitution. In pursuance of these the Parliament has enacted the Central Administrative Tribunal Act excluding the jurisdiction under Article 226 of the Constitution. A few other Acts have not directly excluded the jurisdiction of Article 226 of the Constitution. They have provided an appeal to the higher forum and then to the Supreme Court. Thus they have indirectly, and for all practical purposes denied the High Court to exercise its jurisdiction under Article 226 of the Constitution. For example: The Consumer Protection Act, the Advocates Act etc. Even if this is constitutional it will cause irreparable loss and damages to our judicial system.

LOSS
The world over, tribunals are not staffed exclusively by judicial members. Laymen, persons specialised in the branch are also appointed. May be they are necessary. This helps in deciding the question of facts. This does not mean that the public should be deprived of the services of High Court Judge on a question of law. Apart from this it is common knowledge that tribunals are often ill staffed and do not have the required facil­ities. The State Consumer Forum of Uttar Pradesh was closed down sine-die by its Chairman on the ground that it had no facilities. The non-judicial members unlike their French counterparts often accept it as a last resort. In case of the Central Administrative Tribunal, except for the Vice-Chairman, the rest of the judicial members come from the subordinate judiciary without doing a single service case in their judicial career. The entire juris­diction in these matters has been taken away from the subordinate court. The Supreme Court, being the highest court, is busy in deciding constitutional matters and may not have sufficient time for these matters under Article 136 of the Constitution. The litigants are deprived of the services of the High Court Judges who at least today are most experienced and the best qualified in that branch. The Supreme Court Judges are appointed from the High Courts. May be in future they will become out of touch in this jurisdiction.

REFORMS
Speedy and informal justice are among the main reasons for con­stituting the tribunals. Delay in disposal of cases is the main reason for curtailing the jurisdiction of the High Court. Unfor­tunately tribunals suffer from the same malady. The procedure under Central Administrative Tribunal Act is more cumbersome than the writ jurisdiction. They have the same problem of delays and justice is often not up to the mark. The correct approach for solving these problems is in improving the administration and providing modification in the functioning of the High Court.

GOOD ADMINISTRATION
Most of the litigation begins due to mal-administration. It is a problem-faced world over. Different countries have to a great extent solved these problems by training their executive and defining administrative procedures by means of statute.

The US congress has enacted the Administrative Procedure Act, 1946. Most of the states in US have enacted law in the light of the Revised Model State Administrative Procedure Act formulated by the National Conference of Commissioners on uniform State laws. The Australian Parliament has enacted a number of Statutes the most important being the Administrative Decisions (Judicial Review) Act. The French and the Israel Parliament have enacted similar laws. Such acts can also be enacted in India and the executive can be properly trained.

JUDICIAL REFORMS: BIFURCATION OF THE HIGH COURT
Delays in disposal of laws have to be reduced at the High Court level. To accomplish this, the High Court may be bifurcated into two divisions. Senior Judges may be designated as appellate judges. The senior judges may be paid salaries between that of the puisne judge and the chief justice. They may hear only appeals from tribunals situated in the State or against the order of a single judge where appeal lies.

The appeals may be provided on the question of law only. This will automatically curtail the wide jurisdiction of the High Court under Article 226 which sometimes runs amuck despite limits laid down by the judicial pronouncements. Clearly defined statutory provisions are better than the judicial pronouncements. It will be better if these limits are incorporated in Article 226 itself. This may be difficult and time consuming. It will be easier to provide statutory appeal to the High Court on a question of law. In order that these appeals may be expeditiously heard a pattern similar to the US Supreme Courts may be adopted.

Every such appeal may have three sections
  • facts including impugned orders and documents,
  • grounds and
  • reasons & rulings supporting the grounds.

The third section is in fact the written arguments submitted by the counsels. These appeals may be considered for admission in chambers dispensing with an oral hearing. For final hearing a time limit may be fixed. Facts may not be disputed as the Single Judge or the Tribunal may be required to give a reasoned order with a conclusion on facts separately stated in seriatim.

It is true that the idea of filing written arguments was rejected by first Law Commission in its 14th report 1st volume,2 but times as well as circumstances have changed. This will not only force the lawyers to be specific but will also encourage them to take up relevant points. This has one more advantage. It will also force the Judges to deal with the points taken in the written arguments. It is not often that the Judges do not refer to the uncomfortable rulings or submissions. This procedure will not only restore the role of the High Court as the constitution framers envisaged but will also be in accord­ance with the basic feature of the Constitution namely Judicial review.

1For details, kindly see
  • French Administrative Law; Brown and Garner; published by Butterworths.
  • Administrative Law; HWR Wade; published by Oxford University press.
  • Administrative Law; Dr. DD Basu; published by Kamal Law House.
  • Administrative Justice ... Some necessary reforms; published by University press.
  • Law Commission of India 14th Report Volumes I and II.

2Dr. LM Singhvi narrates an incident. He had suggested filing of written submission when the first Law Commission was processing its report. He was a young lawyer, who had just returned from the US completing his studies and was impressed with their system. Seetalved, the then Chairman of the Commission and Attorney General, in the presence of other members including judges, said, 'What is the guarantee that it will be read.' May be this bias was the reason for the recommendation.

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