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Report No. 14

21. History and procedure.-

We annex to this Chapter a brief note setting out the historical growth of the Council and its working and procedure. We shall point out later how its very peculiar growth rooted in French history and tradition makes it unsuitable for being adopted with any success in India.

22. Position in U.S.A. (Administrative Proddure Act).-

In the United States, various attempts have been made to secure.-uniform administrative procedure embodying the principles of natural justice. Administrative procedure is now regulated by the Administrative Procedure Act of 1946. In the words of Justice Jackson, the Act "represents a long period of study and strife: it settles long-continued and hard-fought contentions, and enacts a formula upon which opposing social and political forces have come to rest. It contains many compromises and generalities and, no doubt, some ambiguities. experience may reveal defects".1

1. Wong Yang Sung v. Mc Grath, 339 US 33 (40-41).

It is a comprehensive piece of legislation which prescribes three types of rule-making procedures: (1) discretionary, (2) administrative and (3) adjudicatory. We are concerned only with the adjudicatory procedure prescribed by the Act.

Statutory procedural requirements of adjudication.- The Act provides that in every case where a statute requires an adjudication to be made after an opportunity for a hearing has been given, certain procedural requirements shall be observed. The Act also provides for certain exceptions.

A person entitled to an administrative hearing must be given such specific notice of the time and place of the hearing and of the charges against him as will enable him to formulate a defence. A notice received in any manner other than that prescribed by the statute will not be a legal notice.

It provides that the notice issued to the private party by an Administrative Agency shall set forth "the legal authority and jurisdiction under which the hearing is to be held" and "the matter of fact and law asserted".

It may be noticed here that the right to be represented by counsel or by a qualified representative, though not a member of the Bar, is universally recognized in administrative enforcement proceedings. The Administrative Procedure Act also provides that when a hearing takes place "every party shall have the right to represent his case or defence by oral or documentary evidence and to conduct such cross-examination as may be required for a true and full disclosure of the facts".

The Act also authorises administrative tribunals to summon witnesses at the request of the party concerned upon his furnishing information as to the general relevance and scope of the evidence sought to be so obtained.

The Act also makes it clear that the exclusionary rules of evidence followed by the ordinary courts have no place in administrative proceedings. It expressly provides that any oral or documentary evidence may be received. It must, however, be noticed that a safeguard against possible prejudice to the individual by means of this rule is provided by the right to judicial review which is discussed later.

It should also be noticed that the Act expressly provides that where decisions are made on the basis of "official notice of a material fact not appearing in the evidence in the record, any party shall on timely request be afforded opportunity to show the contrary" [section 7(d)].

23. Scope of Judicial Review.-

The Act of 1946 has expressly given the courts power when reviewing the decisions of Administrative Tribunals to consider the whole record and to take due account of prejudicial errors. The same Act also provides that when the courts review administrative findings based upon legally inadmissible evidence they are to satisfy themselves that there is a residuum of legal evidence to sustain the findings and in the absence of such residuum, they can quash or set aside the proceedings. Although the courts normally insist upon the parties exhausting all their administrative remedies by way of appeal and do not substitute their own findings of fact for those of the administrators, yet under the Act they have the power to see that the decision is in accordance with "reliable, probative and substantial evidence".

The foregoing brief sketch will show that the Act was framed to suit the special conditions obtaining in that country. It is not a model which can be easily copied in India. Even in its parent country, the Act has been fulsomely praised and bitterly denigrated. It does seem however to have made some contribution to the control of powers of administrative bodies in the United States. We may conclude our short account of this enactment with the following words of Professor Louis L. Jaffe in a recent article:

"The A.P.A. is clearly not a prolegomenon to all future administrative procedure acts, it is not a codification of formal doctrine, it is not a model for any other State or country. But it has made an important contribution to administrative law because its spirit and philosophy do have general validity.1

1. Public Law, 1956, p. 220.

24. The subject of administrative tribunals and its impact on the rule of law have been also the subject of study by various committees in England.

25. The Committee on Ministers' powers was appointed in 1929 under the Chairmanship of Right Honourable the Earl Donoughmore to examine the problems of delegated legislation and the judicial and quasi-judicial powers exercised by persons or bodies appointed especially by the Ministers and to suggest suitable safeguards necessary to ensure the Supremacy of law.

26. Its recommendations.-

After a thorough study of the problem the Committee made the following recommendations:

(1) After making a distinction between judicial, quasi-judicial and administrative functions, the Committee suggested that judicial functions should normally be entrusted only to the ordinary courts of law; any deviations from this wholesome principle must be regarded as exceptional and requiring valid justification.

(2) Where Parliament considers it necessary to depart from this course, judicial functions should be entrusted to a Ministerial Tribunal other than the Minister personally. Any tribunal constituted should be independent of the Minister in the exercise of its functions.

(3) Though the quasi-judicial functions naturally fall within the province of the Ministers, yet where it appears that the Minister may be disqualified by an 'interest' which would prejudice the impartial discharge of the judicial functions involved in the quasi-judicial decision, it would be desirable to entrust the judicial functions to a tribunal whose adjudication would be binding on the Minister.

(4) Before any decision, judicial or quasi-judicial is given, the parties should be given the opportunity of stating their case and knowing the case they have to meet.

(5) Likewise a decision given by the Minister or by the tribunal should be in the form of a reasoned document which should be available to the parties.

(6) Where a statutory public inquiry is held in connection with the exercise of judicial or quasi-judicial functions by Ministers, the report of the person holding the inquiry should be published. Only exceptional circumstances of public policy should justify any departure from this principle.

(7) The supervisory jurisdiction of the High Court to compel the Ministers and the tribunals to keep within their powers should be maintained intact. A simpler and less expensive procedure commensurate with the needs of the modem times may be devised.

(8) Any party aggrieved by the judicial decision of the Minister or tribunal should have an absolute right to appeal to the High Court on questions of law. Here also a uniform and simple procedure may be established.

(9) Instead of maintaining the legal distinction between an excess of jurisdiction wherein certiorari is the appropriate remedy and an error of law wherein an appeal is appropriate, a new form of procedure applying to both may be devised. Such a procedure should provide the time limit within which an appeal may be brought. Further, the appeal should be determined in a summary manner after being heard by a single judge whose decision should, as a general rule, be final.

(10) On any issue of fact, as a general rule, there should be no appeal to any court of law from the decision of a Minister or tribunal. However, in certain exceptional cases an appeal on fact may be allowed to an appellate tribunal constituted by the Lord Chancellor and consisting of three persons, the Chairman being a Barrister or Solicitor. The procedure ought to be expeditious and governed by rules made by the Lord Chancellor on the Rule Committee.

(11) Lastly, the Committee expressed the view that it was not desirable to devise in England a system analogous to the French system.

27. Spens Committee.-

In 1955, a Committee of the Inns of Court Conservative and Unionist Society under the Chairmanship of Right Honourable Sir Patrick Spens undertook a study of this problem. The object of the study was thus stated by the Committee: "Our object, then, is to reconcile freedom and justice for the private citizen with the necessities of a modern government charged with the promotion of far-ranging social and economic policies. We firmly believe that such a reconciliation can be brought about".1

1. Rule of Law, p. 12.

The themes underlying this study by the Spens Committee were four:

First, there was a growing feeling that the citizen was no longer having the protection of an objective law from the capricious exercise of arbitrary power by an executive officer enjoying a very wide grant of discretionary powers. Secondly, it was being felt that a system which makes inadequate provision for review of the decisions of its servants enshrines and sanctions error. Thirdly, it was being felt that there had been a failure to observe, if not a deliberate disregard of, the rules of natural justice, such as the rules against bias, the duty to hear both sides and to give reasons for the decisions made. Fourthly, in view of all these it was firmly believed that fairness and justice should be as much an object of the administrative process as of the legal process.

The Committee was of the opinion that the most urgent and imperative reform called for was the giving of reasons for the decisions made by a Minister and a tribunal. Otherwise in its opinion Parliamentary democracy would degenerate to bureaucratic absolutism.

While the Donoughmore Committee recommended a similar review in respect of judicial and quasi-judicial decisions, the Spens Committee recommended such a review even in cases of disputed administrative decisions. The Committee was of the view that even in these cases, the Minister while announcing his decision should state in a letter or by some other reasonable mode of publication, the authority under which he had exercised the discretion, the material facts of which he was satisfied and the reasons which had impelled him to his decision. Such a procedure, the Committee felt, would do away with the arbitrary and capricious exercise of discretionary power. The Committee also was clearly of the opinion that an appeal should always lie from an administrative decision on any point of law and any attempts to exclude it would mean the "direct subversion of the rule of law".

For certain reasons which it gave, the Committee was of the view that it was not practicable to entrust the task of hearing these appeals to Parliament or to the Queen's Bench Division of the High Court or to the Privy Council. It expressed the view that the existing procedures should wherever possible be modified to meet the modern needs. Administrative efficiency would not justify the relaxation of the rule of law.

28. Administrative Division of the High Court.-

It reached the conclusion that it was necessary to create a new division of the High Court of Justice to be called the Administrative Division presided over by a High Court Judge. Such an Administrative Division would be an appropriate and effective machinery of control. It would be part of the traditional system of courts. It would have the requisite high standing and authority. It was essential that it should be so constituted as to be able to appreciate the requirements of administration and to balance them fairly against the rights of individual citizens. The procedure to be followed should be simple, flexible and speedy. It should be informal and not bound by strict rules of evidence that normally apply in the High Court.

The Administrative Division should, in the opinion of the Committee, have the following powers:

(1) It would be entitled to call for a statement of the facts and reasons upon which the disputed decision was based.

(2) Where there has been a hearing by a tribunal, it should have the power to review the findings of fact, the reasons given by the tribunal and the Minister. These various powers of review could be exercised suitably and in accordance with the circumstances.

(3) In cases where there has not been a hearing by a tribunal before the decision of the Minister, the Administrative Division should be empowered to receive complaints from persons affected, alleging that a material fact on which the decision was based was incorrect. If a prima facie case was disclosed by the complaint the Administrative Division would call for evidence and determine the accuracy of the facts found by the Minister and review the reasons given by the Minister.

(4) The phraseology of subjective satisfaction adopted in a statute should not prevent the Administrative Division from reviewing a decision. It would be its function to decide whether there was any reasonable cause to support the Minister's belief within the meaning of the subjective phraseology.

(5) The Administrative Division would have power to decide all questions of law. There could be no question of exclusion of appeal on points of law from the decision of any Administrative tribunal or other administrative body.

(6) Where it is found that there has been a material error of fact or law, the Administrative Division should have the power to annul the decision or order a rehearing or to substitute new facts or reasons or recommendations.

(7) The Administrative Division of the High Court should also have the power to grant in addition to the above, any remedy which can under existing law be granted in the High Court including such remedies as can be granted only by a Divisional Court.

It would thus be clear that the most important suggestion made by the Committee was the creation of a suitable instrument of review-a new Administrative Division of the High Court-which would hear appeals on points of law from the decision of any administrative body and would also have the power to decide whether the reasons given for a decision can bear examination. It would not, however, review the actual exercise of discretion or any statement of departmental policy which would naturally fall within the sphere of control by Parliament.

29. Though the Donoughmore Committee had submitted a Report in 1932 after a thorough study of the question, much had happened during the interval of twenty-five years which had elapsed after the submission of its Report. In the post-war years, the relationship between the State and the citizen had become further complicated in view of the number of specialized tribunals that had been set up. These facts led to the appointment of a Committee presided over by Sir Oliver Franks in November 1955 for the consideration of the question of Administrative Tribunals. The Committee consisted of lawyers, Members of Parliament, constitutional specialists, former Ministers and others with a knowledge of the administrative process.

Though there was a widespread belief that tribunals set up were in substance a part of the machinery of the Government, the Franks Committee did not accept such a contention and was of the opinion that these tribunals were independent organs of adjudication. The Committee reviewed the work of over ten different tribunals set up under different Acts for specialised purposes which were beyond the competence of ordinary courts. The Committee noticed the divergence in the quality of the membership of the tribunals and in the procedures adopted by them.

It expressed the view that good administration demanded not merely the attainment of the objectives of policy securely and without delay but also that the citizens be satisfied that the State was in the execution of its policies acting with "reasonable regard to the balance between the public interest which it promotes and the private interest which it disturbs".1 In order that such a balance may be attained the Franks Committee made certain general recommendations.

1. Report 5, para. 21.

30. Its recommendations.-

The Committee was of the view that as far as possible, adjudications involving the administration and the individual citizen should preferably be left to the ordinary courts of law rather than to a tribunal or to a Minister, excepting where for reasons of cheapness, accessibility, freedom from technicality, expedition and expert knowledge of a particular subject, a tribunal may be considered more appropriate. The Committee set out three basic requirements for the satisfactory working of such tribunals.

(a) They should manifest openness-which requires publicity of proceedings and knowledge of the essential reasoning underlying a decision.

(b) They should show fairness-which calls for a clear procedure that enables parties to know their rights, to present their cases fully, and to know the cases they have to meet.

(c) They should display impartiality-which requires the freedom of the tribunals from the influence, real or apparent, of departments concerned with the subject-matter of their decisions.

The Committee proposed the creation of two standing councils on tribunals which would take the form of permanent statutory bodies. These councils one for England and Wales and the other for Scotland would keep the working of the tribunals continuously under review-an arrangement that would free the tribunals from the objection that they appear to be instruments of official policy rather than bodies protecting the citizen.

Finally, the committee was of the opinion that in all cases, the ultimate control in regard to matters of law should be exercised by the traditional courts.

The Franks Committee very pertinently observed: "each country seeks to work out for itself, within the framework of its own institutions and way of life, the proper balance between public and private interest. It follows that translation of the practice of one country into the procedures of another is not likely to be appropriate, although since the basic issue, the relationship between the individual and the administration, is common, there will continue to be advantage in comparative study".1

1. Report 5, para. 21.

That also has been the object of the comparative study we have made of the procedures in France and the United States and the proposals made from time to time by responsible bodies who studies the problem in the United Kingdom.



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