Tag: Administrative Law

Administrative Tribunals in India

Posted on

Introduction

Since its inception, India has adopted the doctrine of separation of powers, which essentially divides the government into three branches: the legislature, the executive and the judiciary, which are responsible for making the law, implementing the law, and interpreting the law respectively. However, the establishment of a welfare state has greatly increased the government’s sphere of influence to include social security and welfare schemes, such as free or subsidized healthcare and education, rationed food etc. This, in turn, implies a larger number of institutions that are liable to sue or be sued, which inevitably leads to a highly increased workload for the judiciary.

These new cases were interdisciplinary, consisting of elements of social, cultural, and economic importance that were sometimes beyond the black-and-white of legal jargon. The judicial infrastructure, by itself, was not set up to tackle such cases and was found to be inefficient to dispose of these cases swiftly, leading to a huge backlog of cases in courts all around the country. Therefore, a need was felt to introduce quasi-legislative and quasi-judicial institutions that would be better suited to adjudicate on certain important state and central matters, which might not always be strictly legal. Tribunals are thus constituted as a combination of legal professionals and other experts in the areas on which the tribunals are to adjudicate, to ensure a fair, representative and expeditious resolution of cases.

Definition

The word ‘tribunal’ has been defined in various judgments and texts over the years. In Durga Shankar Mehta v. Raghuraj Singh, the Supreme Court defined a tribunal to include all adjudicating bodies constituted by the State and invested with judicial functions. It was said that tribunals were not the same as a court.1 In Associated Cement Co. Ltd. v. P. N. Sharma, the Supreme Court stated that while a tribunal may possess some of the qualities of a court, they are not interchangeable terms. As far as functionality goes, an administrative tribunal is neither exclusively judicial nor solely administrative, but an amalgamation of both.2 In general, the word ‘tribunal’ has taken on the meaning of a quasi-judicial body that is specially instituted to adjudicate on and resolve administrative or tax-related disputes.

Legal provisions

Till 1976, tribunals were not officially recognized by the Constitution of India. They were introduced by the 42nd Amendment Act, 1976, under Article 323A, which deals with administrative tribunals, and 323B, which deals with tribunals related to other matters. Article 323A states that the Parliament may provide for the adjudication of issues concerning the recruitment and conditions of service of people employed under public services by administrative tribunals. In pursuance of Article 323A of the Indian Constitution, the Administrative Tribunals Act, 1985 was set up, aiming to provide an infrastructure other than the judiciary to adjudicate on matters relating to public services. Section 4 of the Act enumerated three kinds of administrative tribunals. Section 4(1) provides for the establishment of the Central Administrative Tribunal (CAT) at the level of the Centre, Section 4(2) for tribunals at the state level, and lastly, Section 4(3) for joint tribunals for two or more states, called the Joint Administrative Tribunal (JAT).3

Difference Between Courts and Tribunals

While both courts and tribunals are designed to adjudicate legal matters, there are certain essential differences. While courts are part of the judicial system, tribunals are agents of the judicial system. Courts can try all suits whereas tribunals can only adjudicate on specific issues. Further, a court of law is bound by the procedural framework and the law of evidence while a tribunal is not, and functions based on the principles of natural justice.

Can tribunals substitute the high courts’ power of judicial review?

Through Section 28 of the Administrative Tribunals Act of 1985, the power of judicial review had been taken away from the Supreme Court as well as the High Courts, as envisaged under Clause 2(d) of Article 323-A of the Constitution. While the Supreme Court was granted its power of judicial review back in 1986, the High Courts still had no jurisdiction, which was in other cases granted to it under Article 226 of the Constitution. The constitutional validity of such a provision was challenged and expounded upon in the case S. P. Sampath Kumar v. Union of India. As regards the question of whether the jurisdiction of High Courts under Article 226 could be taken away, the Supreme Court referred to the case Minerva Mills Ltd. & Ors. v. Union of India & Ors., wherein it was held that the jurisdiction of the High Courts could only be limited if an equally efficacious alternative was put into effect.

he Court held that since the administrative tribunals are supposed to substitute the High Courts, they must be comprised of competent personnel who have had sufficient legal training and knowledge to be on par with the High Court judges. Therefore, it was decided that only a previous High Court judge or a vice-chairman of a tribunal with an experience of two or more years could become the Chairman of a tribunal. It was concluded that while the Supreme Court will retain its original and appellate jurisdiction, the tribunals will substitute the High Courts.4 However, this judgment was overturned by a 7-judge bench in the case L. Chandrakumar v Union of India & Ors.

The Court held that the power of judicial review that has been granted to the High Courts under Article 226 of the Constitution is a part of its basic structure and therefore cannot be done away with. It was therefore held that the tribunals could in no way substitute the jurisdiction of the High Courts and can only supplement and support them in their functions. The tribunals will function under the supervision of the High Courts, where decisions of the tribunals will be capable of being appealed.5

Flaws in the Tribunals System

While the idea behind establishing administrative tribunals to act as supplements to higher judiciary sounds good, the on-ground implementation of it has fallen short. The arbitrariness of conduct in tribunals, a lack of a standardized procedure, as well as the method of appointment of personnel, has contributed to the incompetence of these institutions and a failure to garner public support. Unlike Courts, the tribunals are not independent and are subject to executive control, even in the appointment of members, which is why experts and qualified professionals are often hesitant to join them, contributing to the overall incompetency. More often than not, the mandatory judicial quota of the tribunal membership is taken up by retired judges who are not acquainted with modern legislation or other judges who are incompetent for the HC and the SC and use tribunals as stepping stones to angle the trajectory of their careers upwards.

The restrictions on appointments are such that experts in the field who will truly be able to do justice to a problem have no way in. For example, in 2021, the National Company Law Tribunal appointed retired District judges as well as other field professionals, who are unequipped to deal with dynamic corporate law problems. The minimum age requirement of 50 years made the practicing experts in the fields of company law, insolvency law, etc., who would have ensured speedy and efficient management of cases, ineligible for being appointed. On top of this, most tribunals have major vacancies and no active effort is made to fill them. All this results in negating the purpose of establishing tribunals in the first place, as it neither manages to serve justice nor reduce the burden on the Courts. The government directs district courts to pick up the overflowing work from these tribunals, essentially giving rise to a roundabout system of what would have happened had the tribunals never been established.

A majority of the decisions taken by tribunals, even those in which the government is involved, are appealed in the higher courts that usually overturn the tribunals’ decisions. It is hard, in this scenario, to appreciate the value of tribunals in fulfilling their purpose. While they are meant to supplement the High Courts, neither the personnel nor the judicial acumen, nor the confidence in judgments, is comparable to those of the High Courts.6 Another major issue is that tribunals are heavily controlled by their respective ministries as they are dependent on them for funding, infrastructure and administration.

Therefore, certain tribunals such as the Debt Recovery Tribunal, which functions under the Ministry of Finance, and the Armed Forces Tribunal, which functions under the Ministry of Defence, often find themselves bound by a double obligation as they might have to pass orders against the ministry itself from which it sustains itself. This may sometimes cause a failure of justice.

Suggested Reforms

A report titled “Reforming the Tribunals Framework in India” by the Vidhi Centre for Legal Policy studied the work of 37 central tribunals and identified the lack of independence as a major limitation of Indian tribunals. Since the selection committee for the tribunals are also in part constituted by members of the executive, they do not enjoy the level of independence enjoyed by the judiciary, and the selection of members is often biased, arbitrary and unfair to play into the government’s interests. In the case Union of India v R. Gandhi, the Supreme Court stated that these selection committees must comprise both members of the judiciary as well as the executive in equal proportions. The report recorded that the precedent set out by the Apex Court is not being followed in practice, and suggested that an independent and autonomous body such as the National Tribunals Commission must be set up to supervise the establishment and administration of the tribunals.

The setting up of a body like the NTC was also supported by the Supreme Court in the case Rojer Matthew v South Indian Bank Ltd. & Ors. The NTC must ensure that the tribunals obtain their independence from the influence of other powers by prioritizing members of the judiciary. The report suggested the formation of a nine-member committee, of which five must be from the judiciary, in order to achieve this. The report also elaborated on a standardized entrance exam (All India Entrance Examination for Tribunals) for appointment to tribunals, thereby eliminating the risk of biases and enabling objectivity and uniformity in the appointment of members. Further, a single overarching body like the NTC shall remove non-uniformity in the administration of tribunals, as it will be the sole body overseeing the funding, functioning and efficacy of all the tribunals.7

In 2021, a Tribunals Reforms Bill (later passed) was introduced in the Lok Sabha by Nirmala Sitharaman which proposed the dissolution of certain appellate tribunals and delegating their functions to other judicial institutions. For example, cases under the Copyright Act will be heard by the Commercial Court of the Commercial Division of a High Court. It also recommends the merging of tribunals that work in the same domain to consolidate and standardize the administration of similar cases. The Bill also set the minimum age criteria for members at 50 years, and the maximum at 70 for the Chairperson and 67 for other members.8

References

  1. Durga Shankar Mehta v. Raghuraj Singh, AIR 1954 SC 520
  2. Associated Cement Co. Ltd. v. P. N. Sharma, AIR 1965 SC 1595
  3. The Administrative Tribunals Act, No. 13, Acts of Parliament, 1985
  4. S. P. Sampath Kumar v Union of India, 1987 AIR 386
  5. L. Chandra Kumar v Union of India & Ors., 1995 AIR 1151
  6. Murali Neelakantan, Indian Tribunals – Is the Path to Hell Paved with Good Intention (?, SCC Online, 10 November 2022).
  7. Arijeet Ghosh & Reshma Sekhar, What We Can Do to Reform the Tribunals Framework in India, (The Wire, 10 November 2022).

This article is written by Aanya Sharma, currently pursuing law at Campus Law Centre, Faculty of Law, University of Delhi.

Delegated Legislation

Posted on

Mansi Tyagi, is a student of Symbiosis Law School, Pune. In this article, she has discussed the rules and principles concerning the Delegated Legislation in India. Also, she has tried explaining the major issues with the same that needs to be tackled. And in conclusion, she has tried putting forth the contemporary situation regarding a valid delegated legislation.

What is Delegated Legislation?

Legislation, the law-making process, can be either supreme or subordinate. While supreme legislation is the one that flows directly through the sovereign; subordinate legislation includes every other organ as its maker other than the sovereign power. On one hand, as the name suggests, supreme legislation cannot be annulled or controlled by any other lawmaking authority, which is not the case with the subordinate legislation.

To get a simpler idea, the parliament in India is a supreme legislative body, while any other authority making law will be considered a subordinate source of legislation. Delegated legislation is one such important and emerging example of subordinate legislation.

What exactly means by the term ‘Delegated Legislation’?

Black’s Law Dictionary defines ‘Delegation’ as “the act of entrusting another with authority or empowering another to act as an agent or representative”.

Thus, Delegated Legislation comes down to how the Legislative authority entrust other departments of the government itself to make law instead. Also known as Executive Legislation, Delegated legislation refers to where, unlike its usual function of executing’ the law, the executive branch makes laws. A law made by a delegated authority is the same as an act passed by the parliament. Since time immemorial, there have been several reasons for the evolution of such a kind of legislation.

The concept of a Welfare state has multiplied the functions of a government, including those of lawmaking. The surging need for law has made the process way too lengthy for the lawmakers to do alone. And that’s where Delegated legislation came into existence. Not just it shared the burden of law-making subject matters, but also gave the legislative to elaborate and discuss on more delicate and critical issues.

Is it prospective or Retrospective?

One of the earlier issues regarding Delegated Legislation that was posed before the judicial authorities was whether it stood a prospective or a retrospective effect. However, instead of handling situations factually, the Hon’ble Supreme Court of India went ahead to lay down principles regarding the effects of such delegated legislation in the case of Federation of Indian Mineral Industries and Ors. v. Union of India and Ors. It laid down three basic principles concerning the subject:

  • (i) In the case of Hukum Chand v. Union of India, the first principle was laid down which stated that only if there was any express or implied authority from the parent statute, the delegating authority, i.e. Central Government or the State Government can make such delegated legislation into retrospective nature.
  • (ii) The 2nd principle was laid down in case of Panchi Devi v. State of Rajasthan where it was stated that originally a delegated legislation is always prospective in nature and thus no right or liability emerging out of it can have a retrospective effect.
  • (iii) Finally, in case of State of Rajasthan v. Basant Agrotech Ltd, It was held as the third principle that as far as the delegated law was regarded as a fiscal statute, a tax or fee could not be levied unto people in absence of an express provision. Only on the pretext that a delegated authority made the law, the imposition of fiscal duty cannot be made ipso facto.

What controls it?

The main purpose of a delegated legislation is to supplement and not to supplant the law. However, such legislation has its own inevitable evils. To safeguard such laws, there are certain ways through which delegated legislation can be controlled. These ways of control are divided into two, direct and indirect. While direct controlling includes control and supervision of Parliament; the indirect control includes the judicial control and review process. One hand the parliament always has the general control to alter any bill before its made into law. Also, after such laws are made by some other authority, the parliament always has the power to amend or repeal such law if it does not serve the purpose why the delegation was made in the first place.

On the other hand, the judiciary has the power to declare any law void that goes against the law of natural justice and good conscience. Also, the delegated law which is ultra vires in nature can be held repugnant by the judiciary without being able to annul or amend it. There are other indirect controls over a delegated legislation as well. This includes giving the delegation to a trustworthy authority to avoid any defect; publicize the law effectively to get a vigilant public opinion to avoid any arbitrariness, and; taking experts’ opinions on such laws to avoid any ‘blanket’ or vague legislation.

Benefits

After understanding the controls over delegated legislation, now we move on to another important question. ‘Why Delegated Legislation?‘

The contemporary societal needs have made the law-making procedure too complicated for any ordinary person. While it is a delicate issue at hand, there are certain benefits that make delegation the best possible way of making supplementary laws. Here are the reasons why delegated legislation works in India more efficiently:

  • Time-Saving – In a large democracy like India, the legislature is always burdened at the first instance. By enabling delegation to the executive to make subordinate law saves time for the parliament to instead work on more complicated issues.
  • Access to special expertise – In most of the cases, the members of parliament are unconnected to the fields they are making laws in, and it is possible for them to make bills defective at their outset. Delegation to departments having an expertise in the required field thus not only saves time on unnecessary defects but also makes the process faster since the time given for drafting bills is anyways inadequate.
  • Flexibility to law – In no case can the lawmakers anticipate the future contingencies that may arise and challenge the law which is in making. Delegating the law-making power to the department concerned can help to add details that might help in avoiding such unforeseen contingencies. Thus, such delegations allow ample scope to amend through swift actions in cases of emergency owing to its gap-filling details to the changing needs of the society.

Disadvantages

Despite the benefits like reducing workload and adding expert details, delegated legislation poses certain threats to the supreme authority of legislation that even the controls are inadequate to handle. Some of them include:

  • Legality – The most basic criticism that this legislative kind receives is its lack of legality. Firstly, the laws are supposed to be made by the people democratically elected. However, in such legislations, the laws are instead made by people not directly elected to the House of Commons, thereby contrasting the democratic setup of the state. Secondly, this, in turn, allows for expropriation of the legislative by the execution, thereby challenging the doctrine of separation of powers.
  • Accountability – In normal circumstances, the legislative is answerable for the defects and lacunas in the laws made. However, when laws are made by unelected delegators, the accountability drops down to a specific ministry, thereby eroding the constitutional role of the parliament. Also, in the process, it unveils the inability of the parliament to check upon the law owing to its lack of expertise on the concerned law.
  • Inadequate Publicity – A lawmaker is required to publicize the law to the general public in order to fulfil the principles of natural justice and good conscience. However, the problem with delegated legislation is that there is no mandate to make enough arrangements for its publicity for the general public. Also, even if the arrangements are made, the words used by the concerned authorities are too complex to be deciphered by the common public. This, in turn, is a major drawback for states where ignorance of the law is not an excuse.
  • Inadequate Control – Despite such delegation being authorized by the legislation itself, the control over it is lacking the expected vigilance. Neither the legislative have the time nor the expertise to keep a check on such laws. In the first place, such delegated legislations have to be laid down before the parliament for an informed approval. However, one of the major limitations to such delegation is there is no adequate control to ensure that the delegated legislation is closely surveilled upon, thereby checking upon the administrative authority making it. In other words, there is a lack of parliamentary check and control over the delegated legislation which in turn makes the executive wing creating it go uncontrolled.

To curb these demerits, prima facie the authority should be given to a trustworthy subordinate department and nothing less than that. At the time of sanctioning of such law, the delegating authority shall be consulted. Also, the publicity of such law should be unprecedentedly made on a more alarming scale allowing the public to give their feedback which can further be used to amend or revoke such law. Prior to its coming into force, all such laws should be completely checked and discussed upon by the legislative. In case, the law avoids such deliberate discussion, the judicial review and supervision control will thereby minimize any chance of them being defective.

What cannot be delegated?

While many rules, regulations or by-laws in India are a product of delegated legislation, there is still a circumference of scope within which only such delegation can be made. Not everything and anything can be delegated to the executive.

In the case of Delhi Laws Act, 1912, In re v. Part ‘C’ States Act, 1950, It was held that the parliament cannot delegate what construes ‘essential legislative features’ which basically means deciding upon the legislative policy and then converting it into binding regulations. Therefore, what can be delegated is only what comprises the ‘non-essential’ functions of the legislative. Also, it held that since India followed the English model of parliament, which thus made the executive accountable to the legislative, and thus the separation of powers didn’t exist in India. This in turn validated the principle of delegated legislation.

In the case of Ajoy Kumar Banerjee v. Union of India, The principle of Delegated legislation was laid down as, “This principle which has been well-established is that the legislature must lay down the guidelines, the principles of policy for the authority to whom power to make subordinate legislation is entrusted.” The most enchanting problem that the delegation of legislative powers faces is its validity. In the most controversial and infamous case of Delhi Laws Act, 1912, In re v. Part ‘C’ States Act, 1950, the three tests for a valid delegated legislation were laid down:

  1. It must be a delegation in respect of a subject or matter which is within the scope of the legislative power of the body making the delegation.
  2. Such power of delegation is not negated by the instrument by which the legislative body is created or established.
  3. It does not create another legislative body having the same powers and to discharge the same functions which it itself has, if the creation of such a body is prohibited by the instrument which establishes the legislative body itself.

Only if these tests are passed by the delegation, will the delegation be valid.

  • It was in this case that the ‘Doctrine of Abdication’ was propounded by the judiciary.
  • It held that the parliament cannot completely abdicate itself by creating a parallel authority and can only delegate ancillary functions. Instead, it has to make sure that the executive only works as a subordinate authority and does not become a parallel to the legislative. Thus, when the delegated law is ultra vires, it ipso facto means that the legislature has abdicated its ‘essential’ functions.
  • The Court was also of the view that being a subordinate, its existence was subject to the legislature’s authority conferred upon it, and thus the legislative can dysfunction the same whenever it desires. Also, no delegated legislation can be held unconstitutional or repugnant only on the pretext that it was not made by the legislative but other authority authorized by it. Thus, even though politically it seems to elude the electorates’ trust, the delegated legislation does not become constitutionally invalid.

Conclusion

Sir Cecil Carr remarks, “The legislature provides the gun and prescribes the target, but leaves to the executive the take of pressing the trigger”. Delegated Legislation permits the executive to pass the law rather than the parliament. It is often argued that India follows the principle of ‘delegatus non-potest delegare’ meaning that there is a prohibition on delegation of power by the parliament since it is the one who itself has the delegation work from the supreme law to make laws for the state.

However, in the In re Delhi Laws Act case, the court took the view that delegation was a part of legislative functions, and since India doesn’t follow the stricter form of Separation of powers, this principle of ‘delegatus non-potest delegare’ does not apply in India. Thus, delegated legislation is a valid legislation unless limited by the guidelines lay down by the Hon’ble Supreme Court of India in the form of the three tests. As for the demerits such legislation poses, Dr. C.T. Carr has already suggested that the safeguards have to be exercised against the otherwise inevitable evils of the delegated legislation.

Delegated Legislation, if handled carefully, is a boon for any welfare state. Its features of being made by an expert ministry and having detailed technicalities, makes it a better version for having timely speedy laws as per the changing needs of the society.

References

Latest Posts