Administrative Adjudication:
Advantages of Administrative Adjudication:
(1)- Cheaper- As iterated by William A. Robson in “Justice and Administrative Law”;
administrative adjudication is cheaper not only for the parties concerned; but also, for the
state if the relative salaries of the official members of the administrative tribunals and the
judges are taken into consideration.
(2)-Speedy justice- Justice through the medium of administrative adjudication is speedy
because of the absence of intricate trial proceedings and vexatious rules of evidence.
(3)-Adequate justice- In contrast to the traditional methods of litigation, environed by
procedural dialectism, administrative adjudication takes into consideration the dynamism of
society, while administering justice.
(4)- Lessen the burden of the Courts- An intricate analysis of the various kinds of disputes
brought before the courts reveal that the majority of these disputes are of ordinary nature and
do not warrant the attention of highly paid judges or the necessity of elaborate procedures and
rules of evidence. Such cases can easily be referred for administrative adjudication.
(5)-Useful in developing democracies- In the case of developing democracies, experimenting
with social and economic programmes, the adherence to traditional courts would give a major
setback to the programme itself unless we switch over to the Administrative Courts.
(6)-Flexibility- The legalistic approach to problems is static, un-progressive and
individualistic. However, the dynamism of society necessitates a progressive attitude and an
adaptation of policies to meet changing conditions; which can only be done via the flexibility
offered by tribunals.
Problems of Administrative Adjudication:
Though, the aforementioned advantages of Administrative Courts are quite impressive, yet
they have been the target of criticism at the hands of certain critics like Dicey, Lord Hewart,
Allen and K M Munshi. The main points of criticism are summarised as follows:
(1)- Violation of Rule of Law- The concept of rule of law exemplifies equality before law,
supremacy of law and due procedure of law over governmental arbitrariness. However, the
process of administrative adjudication with their separate law and procedure seriously
circumvents the celebrated principles of Rule of Law.
(2)-Undermines the principle of Natural Justice- It violates the principle of natural justice as:
(i)-Administrative Courts often do not give out the reasons for their decisions,
(ii)- Characterised by poor investigation.
(iii)-Dependence upon on unsworn written statements, unsupported by verbal testimony and
not subjected to the requite procedure of cross-examination.
(3)- Limited Right to Appeal- The right to appeal and the opportunity for judicial review in
the decisions given by administrative adjudication are extremely restricted and limited.
(4)-Lack of Publicity- The rules of procedure of administrative courts do not provide for the
publicity of proceedings. This characteristic, in the words of William A. Robson, “leads to
difficulty in interpreting the trend of future decisions and introduces autocratic bureaucracy.
(5)-Tribunals do not act judicially- The process of administrative adjudication is not maimed
by judicial luminaries. Consequently, they become the limbs of the executive, and dance to
its tune and cease to act judicially.
(6)- Non-Existent Uniform Procedures- Administrative adjudication does not observe
uniform procedures. In other words, fixed standards of conduct are conspicuous by their
absence. This, in turn leads to negation of the concept of justice. In this context, Lord Hewart
correctly remarked, “Justice should not only be done but should undoubtedly and manifestly
be seen to be done.”
Control of Administrative Discretion/ Judicial Review of Administrative
Discretion:
As iterated in the case of Chief Constable vs. Evans (1982), “Judicial review is a protection
and not a weapon.” In consonance with the aforesaid statement, the control/ judicial review of
administrative discretion is based on the principle of restraining the administrative authorities
from abusing or misusing their power and provide just and fair treatment to the common man
in the spirit of law. In other words, judicial review is the touchstone and the essence of rule of
law. The various means of control of administrative discretion is as follows:
(1)-Principle of Ultra vires:
(i)-The phrase- “ultra vires” exemplifies that no one can exercise the concerned power unless
discretionary power is vested in them. For example, in the case of R vs. Minister of Transport
(1933), the minister had no power to revoke the license but still, he passed an order of
revocation. Subsequently, the action by the minister was held ultra-vires.
(ii)- Further, the doctrine of ultra-vires also applies when an authority having discretionary
power has not exercised that power within the limits of the statute. For example- in the case
of Additional District Magistrate (Rev.) v. Siri Ram (1948), the Court held that the
conferment of rule-making power does not enable the rule-making authority to make a rule
which travels beyond the scope of enabling Act or which is inconsistent therewith or
repugnant thereto.
(2)- Abuse of Discretionary Powers:
The aforementioned phrase exemplifies exercising administrative discretion beyond the limits
set by the law in force or in excess of the discretionary powers so conferred upon the
administrative authority. This abuse of powers may be in either of the following forms:
(i)- Irrelevant Considerations- As a general rule, administrative discretion should be exercised
taking into account the considerations mentioned in the statutes. However, if the authority
concerned takes into consideration entirely superfluous or incidental conditions, occasions or
matters, then the order then the administrative activity is ultra vires and will be quashed.
(ii)- Improper Purpose- The discretionary power is required to be used for the purpose for
which it has been given. If it is given for one purpose and used for another purpose it will
amount to abuse of power.
(iii)-Error of Law- An order passed by the power of administrative discretion shall be
declared inoperative if there is an error of law on the face of record.
(iv)-Unauthorised Delegation-An unauthorised and vague delegation of the power of
administrative discretion shall be declared ultra vires ultra vires Article 14 and Article 19.
(v)- Fettering of decisions- As iterated in the case of Gell vs. Teja Noora (1903), when an
authority adopts a policy in the exercise of its powers, it means that it is not actually
exercising its discretion at all and the said order shall be declared void.
(3)- Doctrine of Proportionality:
(i)- The courts while applying the doctrine of proportionality are empowered to quash the
exercise of powers in which there is not a responsible relationship between the objective
sought to be achieved and the means to that end. For example- in Union of India vs. Kuldeep
Singh (2003), it was held that the penalty imposed should always be proportionate to the
gravity of the offence charged with.
(4)- Unreasonableness:
An unreasonable exercise of administrative discretionary powers shall be declared invalid
and inoperative. For example- in Maneka Gandhi vs. Union of India it was held that an order
made under Passport Act, 1967 could be declared bad if it so drastic in nature, as to be
imposing unreasonable restrictions on the individual freedom.
(5)- Irrationality:
As iterated in Associated Provincial Picture House v. Wednesbury(1947), A decision of an
administrative authority can be held to be unreasonable if it is so outrageous in its defiance of
logic or prevalent moral standards that no reasonable person who had applied his mind to the
subject could have arrived at it.
(6)-Jurisdictional Error: It may arise in any of the following 3 forms:
(i)- Lack of Jurisdiction- Where the authority holds no jurisdiction to pass an order.
(ii)- Excess of Jurisdiction- Where the authority had the jurisdiction over a matter but then it
exceeded it and afterwards its actions become illegal.
(iii)- Abuse of Jurisdiction- It may be malafide, for an improper purpose etc.
However, the court may reject an administrative action on the ground of ultra vires in all
these three situations.
(7)- Acting under Dictation:
Where the authority exercises its discretionary power under the dictation from superior
authority it is taken as non-exercise of power by the authority and its decision or action is
bad.
(8)- Non-Application of Mind:
The expression- “Non-Application of Mind” exemplifies the exercise of administrative
discretion without due care, caution or sense of responsibility or a decision based on facets
other than merits of the case. For example- in the case of Barium Chemicals Ltd. Vs.
Company Law Board (1966), the central government had passed an order of investigation
against the petitioner company on grounds of probability of fraud. However, the supreme
court held the said order to be a classic example of “non-application of mind”; as it was
necessary to explain the reasons/ circumstances for the concerned order of investigation.
(9)- Mala Fide:
Malafide (bad faith) may be taken to mean dishonest intention or corrupt motive. If the
discretionary power is exercised by the authority with bad faith or dishonest intention, the
action is quashed by the court. For example- in Pratap Singh vs. State of Punjab (1963), a
civil surgeon took a loan before his retirement, but he was suspended during this period. He
alleged that the same was done on malice. Subsequently, the Supreme Court found that it was
done primarily to fulfil the CM’s personal agenda.
(10)-Colourable exercise of Power:
(i)- It implies that under a pretence of power given for one reason, the authority is trying to
accomplish something different which isn't approved to do under the law being referred to.
(ii)- For example- in Vora vs. State of Maharashtra (1984), the State Government
requisitioned the flat of the petitioner, but in spite of repeated requests of the petitioner, it was
not derequisitioned. Declaring the action bad the Court observed that, though the act of
requisition was of transitory character, the Government in substance wanted the flat for
permanent use, which would be a fraud upon the statute.
Conflict between Official Secrets Act, 1923 and Right to
Information Act, 2005:
Introduction- The inherent conflict between the Official Secrets Act, 1923 and the Right to
Information Act, 2005 seems to be the most prominent political conflict in the Indian
subcontinent. Further, the aforesaid conflict has been accelerated in the light of facets such
as the adoption of democracy after independence and strict observance of rule of law and the
principles of natural justice that is, right to hearing and rule against bias.
I-Official Secrets Act, 1923: Meaning and Provisions:
(1)- The Official Secrets Act, 1923 was established during colonial rule and enacted for the
first time during the time of Lord Curzon. Further, since the act does not explicitly define
“official secrets”, thus giving the government unprecedented power to withhold practically
anything and everything under the garb of Official Secrets.
(2)- Object-The OSA was enacted in 1923 by the British with the objective of keeping certain
kinds of information confidential, including, but not always limited to, information involving
the affairs of state, diplomacy, national security, espionage, and other state secrets.
(3)-Supplementary Statutes- Furthered by Civil Service Conduct Rules, 1964 and section-123
of the Indian Evidence Act, 1872.
(4)- Salient Features of the Act:
(i)- The law broadly deals with two aspects namely:
(a)- Section 3 – which deals with spying or espionage, and
(b)- Section 5 – which deals with disclosure of other secret information of the government.
(ii)- The secret information can be any official code, password, sketch, plan, model, article, note,
document or information.
(iii)- Lastly, under section- 5, both the person who communicates the information and the person
who receives the information can be punished by the prosecuting agency.
(5)- Classification of Official Information: While there is no set or definitive criteria for the
classification of official information; yet the said classification is done by Departmental Security
Instructions (DSI) in accordance with the prior approval from the Ministry of Home Affairs.
However, there is one methodology to classify information on the basis of its sensitivity:
(i)- Top Secret-It is the information that is to be kept secret for the security of the nation, and
its disclosure could cause “exceptionally grave damage” to the public interest in large.
(ii)-Secret- It is the information to promote the social security of the nation whose disclosure
could cause “serious damage” to the security and confidentiality of the nation.
(iii)- Confidential -It exemplifies the information that can cause “threat or damage” to
national interest and provide significant damage to the government if disclosure of
information has been made without proper authorization.
(iv)- Restricted- It is that information which is communicated only for the purpose of official
use and not to be shared without authorization to any person except for official use.
II- Right to Information Act, 2005: Meaning and Nature:
The Right to Information Act is a revolutionary act that aims to provide transparency in
governmental institutions in India. It was enacted with the objective of eliminating corrupt
administrative practices and bribery in governmental institutions and departments.
III- Conflict between the Official Secrets Act and RTI:
There is a huge contrast between these two Acts as the Official Secrets Act, 1923 was
brought in India for the culture of secrecy and specific denial of any claim against the
workings of the government and the RTI was established in India to bring transparency and
accountability in the workings of the authorities and Government of India. However, there
are certain provisions enshrined under the RTI Act, which does not let the Official Secrets
Act supersede it for public use and reduction in the abuse of power. According to the
provisions of the Right to Information Act, 2005, if there is a clash between the two laws, the
public interest will prevail. This may be explained by referring to the relevant sections of
RTI:
(1)-Section 8(2) provides that a public authority may allow access to the information covered
under the Official Secrets Act, 1923 “if the public interest in disclosure outweighs the harm
to the protected interest.
(2)- Further, section-22 of the Act provides that its provisions will have effect
notwithstanding anything that is inconsistent with the provisions of the official secrets act,
1923 or any o law.
Thus, the Right to Information Act is very significant in the present scenario where a lot of
corruption and unscrupulous acts are happening in the activities of the government
departments.
(IV)- Arguments in favour of Official Secrets Act, 1923:
(1)-No opposition: Official Secrets Act has not been opposed by any commission as there are a
need and necessity of the laws that can keep the specific documents of the state secret. Only a few
unclear provisions of the act require change.
(2)-National credibility: There is a requirement of strong laws to deal with the crimes against the
state, that undermines the credibility of the state.
(3)-National Security: There are many documents which need to stay secret like locations of a
military installation, which if leaked would go against the security of the nation and benefit the
enemy
(4)-Other countries have similar legislation: Many nations including the United Kingdom,
Malaysia, Singapore, and New Zealand continue to use the legislation for protecting state secrets.
In 2001, Canada replaced its OSA with a Security of Information Act. The Official Secrets comes
under the Espionage Act of the United States.
(V)- Arguments against Official Secrets Act, 1923:
(1)-RTI: It violates the Right to Information (RTI) Act of 2005.
(2)-Archaic law: OSA was enacted during colonial times where there was mistrust of people and
the primacy of public officials in dealing with the citizens. But it doesn’t suit to present
democratic India.
(3)-Governance: OSA promotes the culture of secrecy in the governance and makes disclosure an
exception = against the transparency requirement of democratic governance.
(4)-Violation of Article 19(1)(a)- Section 5 of OSA which deals with potential breaches of
national security is frequently misinterpreted and misused to frame journalists.
Importance of Lokpal:
Demand for Lokpal has mounted as people are fed up with the current system against
corruption. Despite all those reforms such as PCA and RTI, corruption is still increasing
in India and the common man’s grievances are not heard properly. A further boost was
given by Anna Hazare’s fast.
o These grievances resulted in the need of an independent investigating agency that
is not controlled by politicians or bureaucrats.
o Since our system has no independent framework to fight against corruption = no
one is afraid of indulging in corruption. Several legal cases of corruption take 30-
35 years. The answer to all this may be the appointment of Lokpal.
All the corruption cases of the Prevention of Corruption Act, 1988 will come under the
jurisdiction of the Lokpal Act. Thus it has the function to inquire into allegations of
corruption against public officials.
The Lokpal will have its own autonomous machinery to inquire and investigate the
corruption cases.
As per the Act, a preliminary inquiry will be conducted within 30 days and completion of
investigation must take place within 6 months although the extension of further six
months can be given only after receiving a valid written reason. All the trials must be
completed within a year that may extend to two years after providing a valid reason in
writing.
Unlike PCA, Lokpal does not require sanctions to form the government to investigate
cases against a public servant and this is one of the best parts.
The Lokpal also has the power to search and seize documents and it can even recommend
the suspension of the accused. Even if the prosecution is pending then also there is a
provision to confiscate the property acquired by corrupt means.
In the present system, Directorate of prosecution comes under law ministry but with the
Lokpal, he will come under the control of CBI director. The Central Vigilance
Commission will recommend the appointment of the director of the prosecution. Director
of the prosecution will work for two years.
The major advantage of the Lokpal is it’s being independent as it is free from politicians,
police officers, and bureaucrats. The entire system is quick so no delay in the results.
