Report No. 14
31. Administrative Bodies
1. The courts in the Constitution.-
Our Constitution cannot function and no nation can march along the true democratic way of life without a true and continuous realisation of the importance of the rule of law and of judicial review of legislative and executive action. Our Constitution in its Preamble aspires to build a sovereign democratic republic dedicated to the ideals of justice, liberty, equality and fraternity. With these ends in view its provisions embody in express terms the power of judicial review in the courts of the land, a power which was recognised in the United States only after a long struggle.
The Constitution has further taken care to provide us with the bulwark of an integrated and irremovable judiciary so that our new born democracy may be assured of proper growth under the wings of a watchful and vigilant group of judges.
2. Ill-informed criticism.-
Yet, it has become usual among politicians at the Centre and in the States while paying lip service to the majesty and dignity of the law to decry the Judges as sitting in an "ivory tower"1 and failing to keep pace with what the politicians think are progressive ideas of the times. They have not hesitated out of their wisdom to admonish the judges and tender officious advice that their job did not consist in "sitting, wearing 'wig and gown' for a number of hours a day and look very learned".
1. Prim Minister Nehru at the State Law Minister, Conference held in Delhi in 1957.
3. Importance of the rule of law.-
Legislation has also been frequently passed placing executive action above the courts of law and thus imperilling the very authority of the rule of the law in our infant democracy. Referring to certain legislation passed by the State of Bihar, a Chief Justice of India was constrained to observe: "Legislation such as we have now before us is calculated to drain the vitality from the Rule of Law which our Constitution so unmistakably proclaims, and it is to be hoped that the democratic process in this country will not function along these lines."1 It has therefore become necessary to emphasise the importance of the rule of law and the role of the judiciary as essential to the orderly development of democracy in India.
1. Ram Prasad Narayan Sahi v. State of Bihar, AIR 1953 SC 215 (217).
One of our Constitution-makers, a distinguished lawyer stated: "The proper functioning of democracy to which this country is committed depends on the rule of law being the basis of our institutions and that in its turn depends upon the position accorded to the Supreme Court and the High Courts in the constitutional structure and their relations with other organs of Government".1
The same idea was expressed in more forceful language by a Judge of the Calcutta High Court in the following words: "A nation that does not know how to respect the rule of law and the judiciary as its final interpreter is a nation that is not fit for the democratic way of life".2 Ordered society and democratic progress are inseparable from them.
As was said by Viscount Sankey, "Amid the cross-currents and shifting of sands of public life, the Law is like a great rock upon which a man may set his feet and be safe, while the inevitable inequalities of private life are not so dangerous in a country where every citizen knows that in the Law courts, at any rate, he can get justice".3
1. Address delivered by Sir Alladi Krishnaswamy Iyer at the Diamond Jubilee Celebration of the Madras 'Advocates' Association on 17-4-1949 AIR 1949 Journal, 35.
2. Mr. Justice P.B. Mukherjee's speech at the inauguration of the Legal Study Circle of the Calcutta Small Cause Court Club on 10-3-51 (AIR 1951 Journal 38).
3. Cited by the Committee on Minister's Powers Report, p. 6.
4. The rule of law and judicial review in a welfare State.-
The rule of law and judicial review acquire greater significance in a welfare State. The maintenance of law and order and the prevention of external aggression are but a part of the functions of such a State. It has a variety of other activities which bring it into constant touch with the life of the citizen. Elsewhere, we have given figures of the vast amount of legislation which has been enacted during the last three years by the Union and the States, a great deal of which impinges in a variety of ways on our lives and occupations.
Much of it also confers large powers on the executive. The greater therefore is the need for ceaseless enforcement of the rule of law, so that the executive may not, in a belief in its monopoly of wisdom and in its zeal for administrative efficiency, overstep the bounds of its power and spread its tentacles into the domains where the citizen should be free to enjoy the liberty guaranteed to him by the Constitution.
5. Its special importance in India.-
While what has been said above is true of any welfare State, it is of far greater importance in a democracy like ours. In our exuberance to establish a welfare State we are apt to be impatient and ride roughshod over individuals' rights as matters of little consequence. This is not to be encouraged. Respect for such rights is the very essence of democracy. As a socialistic Prime Minister of the United Kingdom has stated "Democracy is the rule of the majority with respect for the right of minorities".
The country having stagnated for over one hundred and fifty years under foreign rule, our legislatures are now trying to advance the nation in all directions. In their zeal to achieve quick results, they have not infrequently enacted legislation interfering with the vital and daily functions of the citizen. In order that their policies may go forward uninterrupted, they have endeavoured to entrench the executive and succumbed to the temptation of restricting the powers of the courts.
6. Nor must we lose sight of the peculiar circumstances which brought us independence. Our success in the struggle for freedom was brought about very largely by the efforts of a powerful political party with a single well-knit political organisation. That party has now come into power all over the country and is in charge of the infant democracy born of our independence. The party and its organisation wield an almost unlimited influence throughout the country. The legislatures which have been elected reflect in large majorities in most of the States the views of this party.
There is no effective opposition in a large number of legislatures. In such conditions, both the legislatures and the executive inevitably tend to be intolerant and sometimes even contemptuous, of the decisions of the courts interpreting laws in a manner which they consider to be opposed to their policies. This tendency to trample ruthlessly upon the rights of the individuals with the aid of a steam roller majority is to be deprecated. As has been said:
"Whereas in India today, the Legislature is really dominated by a single party and where the Press is not functioning fully as the fourth estate of the Realm, the executive must be kept in bounds until opposition has grown by a conscience of its own. Authority has tended to give the executive a taste for blanket powers which it is almost impossible to contest in a Court of law. The last of our defences, the judiciary is being rendered less effective by reason of the drafting of our laws and ordinances which make it almost impossible for the action of the executive to be questioned."1
1. Quoted from the Eastern Economist dated the 8th April, 1949 by Dr. Sir C.P. Ramaswamy Iyer in his address at the Diamond Jubilee celebration of the Madras Advocates' Association on 16-4-1949, AIR 49 Journal 37 (38).
This position was envisaged by Chief Justice Kania as far back as 1948. He said:
"In view of the fact, however, that the opposition is negligible, the position of the Judiciary becomes all the more important. In the Legislative Assembly a bill could be passed and made into an Act without much difficulty.....Having regard to this position of the Legislature, if the Executive Government, which is now responsible to the Legislature, does acts which encroach upon the liberty of the subject, the only forum which can give redress against the irregular action of the Executive, is the Court".1
1. Speech at the inauguration of the Assam High Court AIR 1948 Journal 14.
It was said by Jefferson in the early days of the United States of America: "The executive in our Government is not the sole, it is scarcely the principal object of my jealousy. The tyranny of the Legislature is the most formidable dread at present and will be for many years".1
1. Cited by G.C. Venkata Subbarao Legal Pillars of Democracy, p. 94.
7. Criticism. The true role of the courts.-
The legislator chafing at the restrictions imposed upon his power by the Constitution has failed to appreciate the new role of the judiciary under the Constitution. On occasions he has complained of the attitude of the courts, sometimes in unbecoming language. He forgets, that this role has been expressly cast upon the courts for the common weal. The Constitution in express terms requires the courts to act as a supervisory body in the matter of laws alleged to encroach upon the exercise of fundamental rights.
The line as to how far a law shall go in derogation of the citizen's fundamental rights is, according to the Constitution, to be drawn by none other than the judiciary. Governments and their policies may change. What contributes to the stability of the State is its judiciary. A nation may afford to lose its confidence in its King or even in its Parliament but it would be an evil day if it loges its confidence in its judiciary. Amidst the strident clamour of political strife and the tumult of the clash of conflicting classes, the courts of law remain steadfast and impartial. Only a real and full acceptance of these principles, can enable our new born democratic republic to survive. Easing ourselves on this fundamental assumption, we now turn to a survey of some of the problems arising out of our rapid march towards a welfare State.
8. Growth of Governmental Powers (The problem).-
Society in the twentieth century has become exceedingly complex and governmental functions have multiplied. The change in the scope and character of Government from negative to positive, that is from the laissez faire to the public service state, has resulted in the concentration of considerable power in the hands of the executive branch of Government. The direct result of this has been the growth of administrative law.
The problem before us thus is to prevent the potential threat to justice and freedom from the greatly extended powers and functions of the modern State.
Welfare schemes are planned and introduced by the Government in all progressive democratic States. To devise and carry out any general welfare scheme, it is always necessary to affect adversely some private rights of property and personal liberty. These facts have to be faced by all those who live in a Welfare State. The trend is the same in all countries whether it is in the United Kingdom, the United States of America, France or India. The real problem therefore is "to reconcile freedom and justice for the private citizen with the necessities of a modern government charged with the promotion of far-reaching social or economic policies".1
1. Rule of Law by Sir William Patrick Spens British Journal of Administrative Law, Vol. II, 1955-56, p. 4.
9. Delegation of legislative powers.-
In order that Government may be able to discharge the variety of functions which it is called upon to undertake it has become the practice to delegate legislative powers as well as powers of adjudication to administrative organs.
We have elsewhere referred to the growing volume of delegated legislation in our country and the measures needed to ensure its scrutiny before its enactment so that questions may not later arise as to its vires and its compatibility with other laws. The extent to which Parliament is competent to delegate powers of legislation has been examined by the Supreme Court in the Delhi Laws Reference.1 What we are concerned with in this chapter is the delegation of powers of adjudication in administrative and quasi-judicial matters to tribunals consisting of administrative officers or bodies at different levels.
1. Delhi Laws Act, 1912 (in re:), 1951 SCR 747. See also Rajnarain Singh v. Chairman, Patna Administrative Committee, AIR 1954 SC 569.
10. Administrative Tribunals.-
The subject of administrative adjudication has in recent years received serious attention in all countries. Administrative adjudication is said to be a major threat to the rule of law. For, as Dicey has explained "any encroachment on the jurisdiction of the courts and any restrictions on the subjects unimpeded access to them are bound to jeopardize his rights