Abstract
The system of administrative adjudication has not faced legal tensions in India alone, rather the system has evolved across the common law with similar issues. Largely the issues revolve around the traditional doctrines of Common Law, more prominently the doctrine of the Rule of Law upon which the concept of Independence of Judiciary is based. From the Common Law world, Australia, the United Kingdom, the United States of America, and Canada have been studied to find out such legal tensions and functionality of the system in the present form. Australia has a unique aspect of administrative adjudication through “merits review”. That unlike judicial review could go beyond the limitation of review within four corners of law. Hence, under merits review the adjudicator could decide upon factual and even policy aspects. Further, the bodies performing the administrative adjudication in Australia are considered as part of the executive’s domain. In the United Kingdom, the agency that manages the Courts and Tribunals remains same, i.e., the Her Majesty Courts and Tribunal Service (HMCTS). Further, the tribunals are not considered as part of the executive. Though there remains dispute on this proposition, the broad demarcation criteria for classification of a body as part of judicial structure remains the exercise of the “judicial power of the state” and the applicability of contempt law for its decisions. The “New Deal” and the politics behind it in the United States of America germinating the circumstances for creation of the Federal Administrative Procedures Act or “APA” leading various states enacting similar legislations have been discussed. The salient procedural features of APA have also been discussed. The Canadian trend of treating tribunals as creatures of statutes and outside the judicial domain has been discussed with the cases leading the legal position. Then some recommendations based on the comparative study have been proposed with regard to the system of Tribunals in India.
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Notes
- 1.
See, Bernie R. Burrus & Harry Teter, “Antitrust: Rulemaking v. Adjudication in the FTC”, (1966) 54 Georgetown Law Journal 1106. In this paper a discussion between the merits and demerits of the rulemaking and adjudicatory process has been performed with specific reference to Federal Trade Commission or FTC. The idea of the paper evolved from the public statement made by the Commissioners at FTC regarding more suitability of rulemaking process over the adjudicatory process in decision-making.; See also, David L. Shapiro, “The Choice of Rulemaking or Adjudication in the Development of Administrative Policy”, (1965) 78 Harvard Law Review 921 (1965).
- 2.
Id.
- 3.
See, M.P. Jain & S.N. Jain, Principles of Administrative Law (LexisNexis, 6th Edn. 2007; Reprint, 2010) 642.
- 4.
Garner Bryan A. ed., Black’s Law Dictionary Ninth Edition (West Thomson Reuters 2009) 47.
- 5.
See, Union of India v. R. Gandhi, Civil Appeal No. 3067 of 2004 with Madras Bar Association v. Union of India (2010) 11 SCC 1; Madras Bar Association v. Union of India (2014) 10 SCC 1; Madras Bar Association v. Union of India (2015) 8 SCC 583; Gujarat Urja Vikas Nigam v. Essar Power Limited (2016) 9 SCC 103; Rojer Mathew v. South Indian Bank Ltd, (2020) 6 SCC 1; Madras Bar Association v. Union of India 2020 SCC OnLine SC 962, etc.
- 6.
The Constitution (Forty-second amendment) Act, 1976 inserted Part XIV-A to the Constitution of India. See also, H.S. Saxena, Central Administrative Tribunal (Deep & deep 1996) 42. The author while discussing and quoting from the parliamentary debates argues regarding 44th amendment bill (that ultimately resulted into forty-second amendment act) that the main reason behind the insertion of this part was to create “election tribunals” (Article 323-B(2)(f) of the Constitution of India) to the exclusion of high courts as desired by the then incumbent Prime Minister.
- 7.
The status is at a higher pedestal than the normal statutory tribunals as rendered by the amendment is such that illustratively whenever a tribunal is created under Article 323B it gets power even to decide the constitutional validity of the Act. See, Arvind P. Datar, Commentary On The Constitution Of India Volume II (2nd Edition, 2007) 1799.; See also, K.C. Joshi, “Service Tribunals under Administrative Tribunals Act”, (1986) 28 JILI 207.
- 8.
See (n 3), M.P. Jain & S.N. Jain at 648–655. See for more, Arvind Datar, “Tribunalisation of Justice in India”, 2006 Acta Juridica 288.
- 9.
See, Kamal Kanti Dutta v. Union of India (1980) 4 SCC 38.
- 10.
See, Rachel Bacon, “Amalgamating tribunals: a recipe for optimal reform”, Ph.D. Thesis, Sydney University (2004) available at http://ses.library.usyd.edu.au/bitstream/2123/621/1/adt-NU20050104.11271602whole.pdf (last assessed 12th November 2021). Rachel on the similar lines argues that amalgamation of tribunals into one should only be followed by proper appreciation of the five factors mentioned above such as people, law, context, culture, and organization.
- 11.
See, Dinesh, “The Administrative Tribunals Conundrum: A Fig Leaf for Executive Adjudication?”, (2021) 8 Journal Of The Campus Law Centre 129.
- 12.
In the context of United States of America see, Christopher J. Walker, “Constitutional Tensions in Agency Adjudication”, (2019) 104 Iowa Law Review 2679. Professor Walker refers the decisions in the Lucia v. SEC related to Presidential control in the appointment of Administrative Law Judges or ALJs at Securities and Exchange Commission (SEC). The control was exercised by deciding ALJs status as inferior officers and subjecting them to the “Appointments Clause” without approval of the Senate through its advisory or consensus role under Article 2, S.2 to the US Constitution and as per the dictum in Oil States Energy Services v. Greene's Energy Group, LLC. In the latter decision, the Court approved certain forms of administrative adjudications. In the paper, Professor Walker discusses the chances or possibility in the American legal system where such tensions could be resolved either by referring to Article III powers of the Court and rejecting the idea that such reference could be of any help with the broadened functioning of regulatory state or by making the agencies as part of the system of Courts.; See also, Emily S. Bremer, “Reckoning with Adjudication's Exceptionalism Norm”, (2020) 69 Duke Law Journal 1749. Discussing the USA’s Administrative Procedures Act’s shortcoming in enacting the norm of exceptionalism in favor of specialized agencies’ power to adjudicate relaxing the evidentiary rules as against the constitutional order of uniformity available with all courts in adjudication of matters.; See also, Christopher Jon Springman, “Congress’s Article III Power and the Process of Constitutional Change”, (2020) 95:6 New York University Law Review 1781. In this recent article, Christopher calls for a harmonious interpretation of Article III of the US Constitution for protection of constitutionalism as well as the judicial review between the Congress and the Judiciary. The discussion majorly revolves around the Congress’s power under Article III to take away jurisdiction and the power as well as limitations of the Courts to judicially review these acts of Congress. He gives example of the recent case Patchak v. Zinke 138 S. Ct. 897 (2018) where the Federal Court declared that any attempt by the Congress to take away the power of judicial review of a statute would not be constitutionally valid.
- 13.
Mahindra Electric Mobility Ltd. v. Competition Commission of India 2019 SCC OnLine Del 8032.
- 14.
For illustration, United States of America in 1946; Germany in 1960; Japan in 1960, 1962 & 1993; France of recently in 2015; etc.
- 15.
See, Robin Creyke, “Administrative Tribunals”, in Matthew Groves and HP Lee (eds), Australian Administrative Law: Fundamentals, Principles And Doctrines 77–99 (Cambridge University Press 2007), 77. These bodies have developed into many comparative jurisdictions known with different names but performing the task of administrative adjudication. In the Chapter the Author Robin Creyke discusses the features and characteristics of these bodies in Australian context.
- 16.
It would be better if such solution is devised before the dockets of these bodies further expand and become comparable to the judicial dockets and thus creating tensions as now observant with the US legal system. For better understanding of the US legal tensions please see, Christopher J. Walker, “Charting the New Landscape of Administrative Adjudication”, (2020) 69 Duke Law Journal 1687.
- 17.
Id. at 1693. Citing the vast number of Administrative Law Adjudicators outside the Article III jurisdiction adjudicating the vast number of matters and thus looking at them from the vantage point of Article III becomes little cumbersome.
- 18.
See, Joseph Minattur, “French Administrative Law”, 16(3) Journal Of The Indian Law Institute (July–September 1974) 364–376, 375 available at, http://14.139.60.114:8080/jspui/bitstream/123456789/16330/1/010_French%20Administrative%20Law%20%28364-376%29.pdf (Last Accessed 20th November 2021). Professor Minattur expresses his doubts on the adoption of any civil aspect of the French administrative Legal setup in Indian setup because of latter being too much cluttered with the common law obstructions. With this the recommendation comes closer to adoption of the mechanisms that United Kingdom is adopting for the betterment of legal system and mitigating the tensions arising because of administrative adjudication by the executive based bodies.; On the import and export of the comparative aspects from one legal system to the other.; See also, Ran Hirschl, Comparative Matters-The Renaissance Of Comparative Constitutional Law (OUP 2014) 148–150.
- 19.
See, John C. Reitz, “How to Do Comparative Law”, (1998) 46 American Journal of Comparative Law 617; See also, Catherine Valcke, “Global Law Teaching”, (2004) 54 Journal of Legal Education 160; See also, Rodolfo Sacco, “Legal Formants: A Dynamic Approach to Comparative Law”, (1991) 39 American Journal of Comparative Law 1. The articles describe the pitfalls as well as approaches that need to be adopted during the course of research in comparative systems and the elements that need to be noted by the researcher so as to be able to imbibe as well as cull out the relevant extract for the purpose of the study.
- 20.
Id. Rodolfo Sacco at 21.
- 21.
Id. at 10–20.; For example, most of the substantial academic legal discussions in French (French), Germany (German), Japan (Japanese), Canada (Canadian French) systems are in the local languages and not in English.
- 22.
See, Rojer Mathew v. South Indian Bank (2020) 6 SCC 1. Majority judgment at ¶ 25, page 12 available at, https://www.sci.gov.in/pdf/JUD_4.pdf (last accessed 12th July 2020).
- 23.
See, Garry Downes, “Speech by the President of the Australian AAT on Structure, Power and Duties of the Administrative Appeals Tribunal of Australia on how the modern system has evolved”, Supreme Administrative Court of Thailand, 21st February 2006 at ¶¶ 13–17 available at https://www.aat.gov.au/AAT/media/AAT/Files/Speeches%20and%20Papers/StructurePowerDutiesFebruary2006.pdf (last accessed 13th November 2021).
- 24.
See, MP Jain, “Reform of Administrative Law in Australia”, (1973) 15(2) JILI 185. Discussing the comparison of reforms proposals as they were made before the Australian system adopted these reforms.
- 25.
Supra (n 15), R Creyke at 81–82. Though Australia initially adhered to the UK like setup but left the same, placing the tribunals at a sui generis place but within the common executive setup. Though Professor Creyke in her work suggests referring to the celebrated study on New Separation of Powers by Professor Bruce Ackerman published in Harvard Law Review that these bodies could be placed as the fourth place after the Legislature, Executive and Judiciary in the traditional setup of Separation of Powers.; See also, Bruce Ackerman, The New Separation of Powers, (2000) 113 Harvard Law Review 633.
- 26.
For more about this tribunal please visit the website of the VRB at http://www.vrb.gov.au (last accessed 30 November 2021).
- 27.
For more about the tribunal please visit the website of the NNTT at http://www.nntt.gov.au/aboutus/Pages/default.aspx (last accessed 30 November 2021).
- 28.
For more about the tribunal please visit the website of the SCT at https://sct.gov.au/pages/about-us/about-the-tribunal (last accessed 30 November 2021).
- 29.
For more about the AFCA please visit the website of the AFCA at https://www.afca.org.au/about-afca (last accessed 30 November 2021). It has been claimed at the website of SCT that all the matters that arise after 31st October 2018 shall be dealt with by AFCA. The SCT shall cease to operate after it disposes all the pending matters.
- 30.
Ibid. See the website of SCT.
- 31.
The Administrative Appeals Tribunal (AAT) Act, 1975 (Act 91 of 1975) was the result of the recommendations of the Kerr Committee named upon Justice John Kerr, also known as the Commonwealth Administrative Review Committee recommending a form of review that goes further than the judicial review. Based on reasons of inadequacy and lack of broadness of judicial review in Administrative Matters. Though the Bland Committee or the Committee on Administrative Discretions that constituted after the Kerr Committee recommended three bodies but within a single structure in the form of AAT. Leading the constitution of modern day AAT with three wings.; See also supra (n 23), Garry Downes.
- 32.
Supra (n 15), R Creyke at 77.
- 33.
Id at 80.
- 34.
See, S.43 of the AAT Act, 1975.
- 35.
Supra (n 15), R Creyke at 84. The Merits review in the context of AAT stems from the S.43(1) of the AAT Act, 1975 that confer the decision-maker’s all powers over the AAT while undertaking the review of that decision. Similar provisions are found in various statutes creating the tribunals.
- 36.
Though a trend is observant in Common Law courts after the decision in Anisminic Ltd. v. Foreign Compensation Commission [1969] 2 AC 147, regarding broad and expanding interpretation of any “error of law” under the “collateral fact doctrine” as well as strict interpretation of any exclusionary or privative clause.; See also, Christopher Forsyth, “Error of Fact Revisited: Waiting for the ‘Anisminic Moment’”, (2018) 23 Jud. Rev. 1, 1–10.
- 37.
The conditions like the policy decision being ‘arbitrary’ or taken with ‘mala-fide intention’ or not having any ‘reasonable principle’ behind it or being disproportional to the ends it seeks to meet are very limited conditions for exercise of ‘judicial review’. Thus, making the power of judicial review limited based on the principle of ‘Separation of Powers’. The reasoning behind such non-interference by judiciary with the executive decisions is to exercise restraint on its powers by not encroaching the executive’s territory so as to maintain balance of vires as well as to signal the executive to keep same level of restraint, to not to impinge upon judiciary’s territory thus maintaining the same balance.
- 38.
See the opinion of Mason, CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 341. Mason, CJ while referring AAT and ADJR Act specifically elucidated the judicial review limitations with regard to the findings of fact. As including the findings of fact within the ambit of judicial review would lead to an ever-expansive review of administrative decisions. This would entangle the relationship of executive and judiciary with the issues pertaining limits and extents of such power. The judgment is also available here, https://www.ato.gov.au/law/view/document?DocID=JUD%2F170CLR321%2F00002 (last accessed 14th August 2020).; See also, Bill Lane, ‘The ‘no evidence’ rule’, in Matthew Groves and HP Lee (eds), Australian Administrative Law: Fundamentals, Principles And Doctrines 233–252 (Cambridge University Press 2007) 234.
- 39.
For example, please see the decision and judgment of the Delhi High Court (India) in Shailendra Kumar Singh v. Govt. of NCT of Delhi and Anr. W.P. (C) No. 4621/2020 (28th July 2020), rejecting similar plea while referring another decision of the Supreme Court of India in Villianur Iyarkkai Padukappu Maiyam v. Union of India (2009) 7 SCC 561. The judgment of the Delhi High Court is available at, https://indiankanoon.org/doc/48566010/ (last accessed 12th August 2020).
- 40.
Supra (n 15), R Creyke at 85.
- 41.
Becker v. Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158.
- 42.
Supra (n 23), Garry Downes.
- 43.
M Groves and HP Lee, ‘Australian administrative law: the constitutional and legal matrix’, in Matthew Groves and HP Lee (eds.), Australian Administrative Law: Fundamentals, Principles And Doctrines 1–14 (CUP, 2007) 6.; See also, NSW v. Commonwealth (1915) 20 CLR 54. Also popularly referred as ‘Wheat case’.
- 44.
Id, Groves & Lee at 6–7.
- 45.
This needs to be seen in light of the fact that the Constitution of Australia (The Commonwealth of Australia Constitution Act, 1901) specifically denotes separate primary three chapters on defining the Parliament, the Executive and the Judiciary inter alia out of total eight chapters. The phenomenon of Separation of Powers thus has been respectfully accepted in the Commonwealth Constitution.
- 46.
In the Australian context please see the opinion of Griffith, CJ in Huddart Parker & Anr. v. Moorehead (1909) 8 CLR 330. Attempting to define ‘judicial power’ as a secondary review of the binding decision by some authority or tribunal.; See also supra (n 43), M Groves and HP Lee at 7.
- 47.
See, P Cane, ‘Understanding Judicial Review and Its Impact’, in M Hertogh and S Halliday (eds), Judicial And Bureaucratic Impact (CUP 2004) 26.
- 48.
The relevant portion of S.75(v) of the Commonwealth Constitution, 1901 reads, ‘75. Original jurisdiction of High Court: In all matters- (v) in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth; the High Court shall have original jurisdiction’.
- 49.
Supra (n 43), M Groves and HP Lee at 12. Referring the S.75(v) of the Commonwealth Constitution and the High Court’s interpretation of the same in Re Minister for Immigration and Multicultural Affairs [2003] HCA 30, as the provision that creates weighty hindrance for any statutory exclusion of judicial review of administrative action.
- 50.
Supra (n 23), Garry Downes at ¶¶ 10–11.
- 51.
See, Anthony Mason, ‘Administrative Law Reform: The Vision and the Reality’, (2001) 8 Australian Journal of Administrative Law 135 at 138–141.
- 52.
See, Chapter II, Ss.61–70 of the Commonwealth of Australia Constitution Act, 1901.
- 53.
Id, Chapter III, Ss.71–80.
- 54.
Supra (n 43), M Groves and HP Lee at 13.
- 55.
Id.
- 56.
Id. at 14. It has been claimed that the Kerr as well as the Bland committee’s reform proposals in their implemented shape had a single common feature. That was regarding the adherence to the principle of ‘Rule of Law’.
- 57.
See, Gabriel Fleming, ‘Administrative Review and the “Normative” Goal-is Anybody Out There?’, (2000) 28 Federal Law Review 61–86 at 65. Available at, http://classic.austlii.edu.au/au/journals/FedLawRw/2000/3.pdf (last accessed 21st November 2021).
- 58.
See, B Ackerman, ‘The New Separation of Powers’, (2000) 113 Harvard Law Review 633; See also, Supra (n 15), R Creyke at 82. Refer for a methodological study arguing for creation of new setups and branches.
- 59.
S.5A of the Administrative Appeals Tribunal (AAT) Act, 1975.
- 60.
Id, Ss.7 & 7A.
- 61.
See, Ss.33 & 33ZD of the Federal Court of Australia Act, 1976. Though the jurisdiction of the Federal Court in the Nine National Practice Areas is based on statute but its status is either equivalent or greater than the Supreme Courts of federal states.
- 62.
See, S.7 of the AAT Act, 1975. It is to be noted that the changes with regard to the qualification have been amended vide the Administrative Appeals Tribunal Amendment Act of 2005. The amendment act vide S.15 amended the qualifications for President and the Deputy including the Federal Judges and the legal practitioners with certain specific minimum standing at the bar. Whether the judge of the Federal Court is appointed as the President or the Deputy President of AAT this appointment shall not affect their initial tenure as a judge. Them are collectively called as Presidential member and the tenure is secured via S.7A of the AAT Act, 1975.
- 63.
Id.
- 64.
Gabriel Fleming, ‘Chapter 4-Tribunals in Australia: How to achieve Independence’, in Robin Creyke (ed), Tribunals In The Common Law World 86–103 (The Federation Press 2008) 96. Available at, https://books.google.co.in/books?id=Opvn1CiM7zwC&printsec=frontcover&source=gbs_ge_summary_r&cad=0#v=onepage&q&f=false (last accessed 12th November 2021).
- 65.
Id.
- 66.
Id at 97.
- 67.
Id. at 103.
- 68.
See, Commonwealth of Australia, ‘Protocol for Appointments to the Administrative Appeals Tribunal’ (2015). Available at, (Last accessed 12th August 2020).
- 69.
Supra (n 11), Dinesh at 137.
- 70.
S.8 of the Administrative Appeals Tribunal (AAT) Act, 1975.
- 71.
Id.
- 72.
Id, S.15.
- 73.
Id, S.14.
- 74.
Ibid. AAT Act, S.12.
- 75.
Id, S.13.
- 76.
Id, S.11.
- 77.
Id, S.24N.
- 78.
Id, Ss.24D read with 24PA-24Q.
- 79.
Id, S.24B.
- 80.
Id, Refer Divisions 2, 3 & 4 to the Act.
- 81.
See, S.37 of the AAT Act, 1975.
- 82.
Id, Ss.33(1), 34, 37(1) & (2), 38, 40(1A), etc. providing that the procedure adopted to be little formal though adhering to the most legal aspects ensuring utmost fairness, preliminary conferences, seeking statement of reasoning from decision-maker, power to seek additional documents as well as statements, summoning any person for evidence, etc.
- 83.
Supra (n 15), R Creyke at 90 & 91.
- 84.
Id.
- 85.
Id.
- 86.
See, Part II of the AAT Act, 1975. The section on Composition and Appointments standards above could also be referred.
- 87.
Id.
- 88.
Supra (n 15), R Creyke at 95.
- 89.
id. Prof. Creyke cites Minister of Immigration and Ethnic Affairs v. Wu Shan Liang (1996) 185 CLR 259 at 282 as the reason for the proposition.
- 90.
Id.
- 91.
See, ‘The scope of jurisdiction of the Federal Court of Australia’, available on the official website of the Court at https://www.fedcourt.gov.au/law-and-practice/national-practice-areas/aclhr (last accessed 24 November 2021).
- 92.
See, Birdseye v. Australian Securities and Investment Commission (2003) 76 ALD 121.
- 93.
Supra (n 15), R Creyke at 96.
- 94.
Id.
- 95.
Supra (n 64), G Fleming at 95.
- 96.
See, Drake v. Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.
- 97.
Supra (n 15), R Creyke at 98.
- 98.
Id. at 98.
- 99.
Id.
- 100.
See, S.63 of the AAT Act, 1975.
- 101.
Supra (n 64), G Fleming at 94.
- 102.
Id.; This phenomenon in Indian context is more common with Banking tribunals like Debt Recovery Tribunals.
- 103.
Id., Gabriel Fleming at 95.
- 104.
Parliament of Australia, Moira Coombs, ‘Amalgamation of merits review tribunals Budget Review’ (2014–15). Available at, https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/BudgetReview201415/Tribunals (last accessed on 30 November 2017).
- 105.
See Part-V, Ss.47–58 of the AAT Act, 1975.
- 106.
Parliament of Australia, ‘Report of the Commonwealth Administrative Review Committee’ (1971). Available at https://trove.nla.gov.au/work/9491948 (last accessed 24th November 2021).
- 107.
Government of the Commonwealth of Australia, ‘Smaller Government—Transforming The Public Sector’ (Ministry of Finance, 2015), available at, https://www.financeminister.gov.au/media-release/2015/05/11/smaller-government-transforming-public-sector (last accessed 12th August 2020).
- 108.
Id.
- 109.
To know more about the Attorney General Australia’s Department and its functions please visit the official website. Available at, https://www.ag.gov.au/about-us (last accessed 24th November 2021).
- 110.
The Court Services Victoria Act, 2014.
- 111.
Namely, Victorian Civil and Administrative Tribunal (VCAT) and the Judicial College of Victoria (JCV). For more information is available at, https://www.courts.vic.gov.au/about-csv (Last accessed on 30 November 2017).
- 112.
See, Michael Adler, ‘From Tribunal Reform to the Reform of Administrative Justice’, in Robin Creyke (ed), Tribunals In The Common Law World 153–174 (The Federation Press Australia 2008) 156.; See also, Nick Wikeley, ‘Burying Bell: managing the judicialization of social security tribunals’, 63(4) Modern Law Review 475–501 (2000). Discussing the fundamental structural changes in the system of tribunals at UK that started happening in the beginning of the twenty-first century that made the tribunals (in the light of changes made to Social Security Tribunal) more closer to the system of courts and then in 2007 they were merged with the courts leading to creation of HMCTS.
- 113.
Martina Kunnecke, Tradition and Change in Administrative Law-An Anglo German Comparison (Springer 2007) 16.
- 114.
See, Mark D Walters, ‘Public Law and Ordinary Legal Method: Revisiting Dicey’s Approach to Droit Administratiff’, 66(1) The University of Toronto Law Journal 53–82 (Winter 2016) 56–58. While criticizing Dicey’s critique of French Administrative Law and appreciating the same Harold Laski wrote a letter to OW Holmes Jr. and referred it as ‘muddleheadedness’ by Dicey.
- 115.
Id at 57.
- 116.
The Tribunals and Enquiries Act, 1958. The act was amended in 1992 for the causes involving the independence as well as fairness and impartiality.
- 117.
H. W. R. Wade, ‘Tribunals and Inquiries Act 1958’, 16(2) The Cambridge Law Journal 129–134 (Nov. 1958) 129. Available at, https://www.jstor.org/stable/4504507 (Last accessed 22 November 2021).
- 118.
M.P. Singh, Administrative Justice in India: The Urgency of Reforms, (2013) 1 SCC J-65–80, 68.
- 119.
Chantal Stebbings, Legal Foundations of Tribunals in 19th-Century England (CUP 2007) 330–331.; See, AV Dicey, The Development of Administrative Law in England, (1915) 31 L.Q.R. 148. Though Professor Dicey later himself acknowledged the development of administrative law in England as part of the welfare state.
- 120.
For more discussion please see, Joseph Minattur, ‘French Administrative Law’, 16(3) Journal of the Indian Law Institute 364–376 (July–September 1974) available at, http://14.139.60.114:8080/jspui/bitstream/123456789/16330/1/010_French%20Administrative%20Law%20%28364-376%29.pdf (last accessed 20th November 2021).
- 121.
Ibid (n 119), Chantal Stebbings at 331.
- 122.
Id. at 332.
- 123.
Id. at 333.
- 124.
Id.
- 125.
Id.
- 126.
Id. at 332.
- 127.
Id. at 334.
- 128.
Id.
- 129.
See also, Wraith and Hutchesson, Administrative Tribunals (George Allen and Unwin 1973); JA Farmer, Tribunals and Government (Weidenfeld and Nicolson 1974) and; Peter Cane, ‘Judicial Review in the Age of Tribunals’, (2009) 3 Public Law 479–500. Apart from Chantal Stebbings all of these mentioned authors have discussed in detail the origin as well as the reasons behind the origins of the Administrative Tribunals in England.
- 130.
Supra (n 119), Chantal Stebbings at 333.
- 131.
Id.
- 132.
Gavin Drewry, ‘The judicialization of ‘Administrative’ tribunals in the UK: From Hewart to Legatt’, (2009) 28 Transylvanian Review of Administrative Sciences 45–64, 47. Available at, https://rtsa.ro/tras/index.php/tras/article/viewFile/27/23 (last accessed 20 November 2021).
- 133.
Id.
- 134.
In today’s scenario, the assumption of existence of these wings of the state could be easily made but the polity of modern states have evolved from the times where there were no fixed criteria for classification of a body into one wing of the state or the other. In the past history of most of the modern nation states there have existed the periods where autocrats have exercised despotic powers and states have learnt from such experiences. The situation changed after the scholarly classifications were proposed and were actually followed and accepted in large by the people. This has been discussed in detail in the section related to the ‘Separation of Powers’ as part of this Section in this Chapter.
- 135.
Ibid, G Drewry at 48.
- 136.
Please see the section on ‘Separation of Powers’ below in this chapter.
- 137.
Supra (n 132), Gavin Drewry at 48.
- 138.
Id, The vulnerable people from less educated sections settled their claims for old age pensions and un-employment benefits. Post first world war the injured and disabled sought their compensations and pensions through the settlement tribunal formed for that purpose.
- 139.
Id.
- 140.
Id., Lord Chief Justice Hewart of Bury in his work titled, ‘The New Despotism’ (Cosmopolitan Book Corp., 1929) criticized the practice of taking away of the legislative and judicial powers by the executive through enhancing the rule making powers of bureaucracy and creation of bodies in the nature of tribunals respectively.
- 141.
United Kingdom, ‘The Committee on the Power of Ministers’ (1929–1932).
- 142.
Supra (n 132), Gavin Drewry at 49.
- 143.
Id.
- 144.
W. Robson, Justice and Administrative Law (London, Stevens 1928).
- 145.
Supra (n 132), Gavin Drewry at 50. Though Lord Hewart later in his biography written by Jackson regretted his sharp criticism that he noted in his book written earlier in 1929. R Jackson, The Biography of Lord Hewart (Harrap 1959); See also, First Law Commission of India, ‘Reform of Judicial Administration’ (Report Number 14, volume 2, 1958) 687–689, 694. Available at http://lawcommissionofindia.nic.in/1-50/Report14Vol2.pdf (Last accessed 20th November 2021). Based upon the Franks Committee proposals and the study conducted by Professor Hamson of Trinity College.
- 146.
Ibid, G Drewry at 50.
- 147.
Id.
- 148.
Id. at 50–51. The Franks Committee was formed against the criticism of the government after the ‘Chrichel Down Affair’ Case where the certain decisions of the bureaucrats against a landowner, who gave his land for a specific use, were considered unfair due to which the even the minister had to resign from his office. The decisions were in the nature putting the ministry in the bad light owing to the profit making purpose it depicted by extraordinarily increasing the price of the land it took from the owner for a particular purpose and after that purpose was served post World War II then using the land for another purpose, subsequently increasing the price of the land so as to make impossible for the previous owner to reoccupy the same.; See also, P. Chandrasekhar, Tribunal System: The Indian Perspective, (2015) 7 SCC J-10, 10.
- 149.
Ibid, G Drewry at 51.
- 150.
Id.
- 151.
Id. at 52. This monitoring body later translated in to the Administrative Justice and Tribunals Council (AJTC) in 2007 and then into the Administrative Justice Forum (AJF) in 2012.
- 152.
Id; See also supra (n 144). This was marked later by the remarks of Professor Robson noted by Chantal Stebbings in her work on Tribunals (2009) that the premise of the committee’s inquiry was deeply influenced by the Dicey’s work making it incapable to perceive any further ideas open to the query.
- 153.
Id, In simple terms the consideration of Tribunals as adjudicators pertains salience as an adjudicating authority has certain basic procedures to follow to reach upon a decision. Though even a decision-maker reaches the decision based upon rules and law through which his discretion is governed. But the reasoning of the discretion could be based on different policies of the decision-maker herself and can be partisan under certain conditions leaning towards the maximization of the good for the decision-maker or her organization. The Adjudicator or the Adjudicating Body on the other hand has the responsibility to give equal weightage to the adversarial arguments raised and reach the decision in a non-partisan way. Though the rules of Natural Justice are equally applicable on both.
- 154.
See, C Harlow et al. (eds), Law and Administration (Butterworths, 2nd ed, 1987) 31–33.
- 155.
See, Andrew Leggatt, ‘Tribunal for users: One system, one service: Report of the review of Tribunals’ (March 2001). Available at, https://webarchive.nationalarchives.gov.uk/+/, http://www.tribunals-review.org.uk/leggatthtm/leg-00.htm(Last Accessed 20th November 2021).
- 156.
See, United Kingdom, ‘Transforming Public Services: Complaints, Redress and Tribunals’ (Department of Constitutional Affairs, July, 2004). The white paper released, recommended the niceties based on the outer framework provided by Sir Leggatt Committee’s Report the establishment of an administrative agency to support the newly formed unified tribunals and also the setting up of annual review mechanism by publication of annual appraisal report of the tribunals and their functioning. The White paper is available online at https://webarchive.nationalarchives.gov.uk/20040722024356/http://www.dca.gov.uk/pubs/adminjust/transformfull.pdf (Last Accessed 20th September, 2020).
- 157.
Ibid, Leggatt’s Report.
- 158.
The seven Chambers are: I. ‘General Regulatory Chamber’ GRC, II. ‘Health, Education and Social Care Chamber’ HESCC, III. ‘Immigration and Asylum Chamber’ IAC, IV. ‘Property Chamber’ PCh, V. ‘Social Entitlement Chamber’ SECh, VI. ‘Tax Chamber’ TC and VII. ‘War Pensions and Armed Forces Compensation Chamber’ WPAFCC.
- 159.
The four Chambers are: I. ‘Administrative Appeals Chamber’ hearing appeals from GRC, HESCC, SEC and WPAFCC; II. ‘Immigration and Asylum Chamber’ hearing appeals from IAC only, III. ‘Lands Chamber’ hearing appeals from PC, IV. ‘Tax and Chancery Chamber’ hearing appeals from TC.
- 160.
This is to be made clear that there exist tribunals outside this two-tiered structure, unified by the TCEA statute of 2007, as well like the Employment Tribunals but are managed by the HMCTS under the aegis of Ministry of Justice (MoJ).
- 161.
While the Lord Chief Justice remains the head of judiciary there also exists a position with nomenclature as Senior President of Tribunals (SPT) who possess similar functions with respect to management of Tribunals whether Tier I or Tier II and some other like EAT.
- 162.
The AJTC was established under S.44 of the TCEA, 2007 with a larger mandate than the body it replaced, i.e., CoT.
- 163.
See, Lord McNally, ‘Speech of the Minister of State for the motion to approve the Public Bodies (Abolition of Administrative Justice and Tribunals Council) Order’, House of Lords, 22nd July 2013. Available at, https://www.theyworkforyou.com/lords/?id=2013-07-22a.1125.0 (Last accessed 14th February 2020); See also, Michael Adler, The Rise and fall of Administrative Justice—A Cautionary Tale, 8(2) Socio-Legal Rev. 28 (2012). Adler criticizes the abolition of AJTC citing various benefits it posed for development of ‘rising from the shadows’ administrative justice in UK.
- 164.
Ibid, Lord McNally.
- 165.
See, Bernardo Sordi, ‘Révolution, Rechtsstaat, and the Rule of Law: historical reflections on the emergence of administrative law in Europe’, in Susan Rose Ackerman et al. (eds), Research Handbooks In Comparative Law 23–36 (Edward Elgar 2010) 35.
- 166.
Dominic Kennedy, ‘No Experience necessary to be a judge in hearings free-for-all by’, The Times, 1 February 2021.
- 167.
Id.
- 168.
Id.
- 169.
This body was setup under the Constitutional Reform Act, 2005.
- 170.
See, The Employment Tribunals Act, 1996 and The Enterprise Act, 2002.
- 171.
Ibid (n 169), Gary Slapper et al., at 235.
- 172.
For more on the Indian legal debates in this respect please see the chapter on ‘Background’ as part of this work.
- 173.
The issue of difference between what could be considered as ‘court’ and what to be considered as ‘tribunal’ has been part of various decisions. For reference the Attorney General v. British Broadcasting Corporation, [1980] 3 All ER 161 can be the case in which the House of Lords decided the ‘Court’ to be understood as a body adjudicating and exercising through the judicial power of the state. It was held that the purpose for establishment of a body is needed to be seen to decide whether it is established for exercising judicial power of the state or for other purposes incidentally performing duties of judicial character.
- 174.
R Huxley and J Martin, Unlocking The English Legal System (Routledge, 4th ed, 2014) 228.
- 175.
General Medical Council v. British Broadcasting Corporation [1998] 3 All ER 426.
- 176.
Ibid. (n 175), Huxley & Martin at 228.
- 177.
See, S.19 of the Contempt of Court Act, 1981 [United Kingdom]. The section reads, ‘‘court’ includes any tribunal or body exercising the judicial power of the State, and ‘legal proceedings’ shall be construed accordingly’. The legislation can be accessed at, https://www.legislation.gov.uk/ukpga/1981/49/1999-01-31/data.pdf (Last accessed 12th November 2021).
- 178.
Government of United Kingdom, ‘Franks Committee Report’ (1957). The Report at ¶ 40 read the tribunals, ‘…..[A]s part of the machinery of administration…’.
- 179.
Baker v. HMRC [2013] UKFTT 294 ¶ 86. In this case the First Tier Tribunal while rejecting a relief claimed under S.727 of the Companies Act ostensibly stated that it does not possess the vires as vested with the court and thus since it is not a court it cannot grant the relief claimed. Text Available at, https://www.bailii.org/uk/cases/UKFTT/TC/2013/TC02790.html (Last Accessed 20 November 2021).
- 180.
Supra (n 169), Gary Slapper et al., at 627.
- 181.
Please see, the progress report presented before the Public Accounts Committee of House of Commons titled, ‘Transforming Courts and Tribunals: progress review’ ‘Introduction’ (II Report of 2019 session) 5th November 2019 at 4. Available at, https://publications.parliament.uk/pa/cm201919/cmselect/cmpubacc/27/27.pdf (Last Accessed 20th November 2021). The report as like many other similar previous reports clearly categorizes HMCTS as an executive agency of the Ministry of Justice of UK Executive Government.
- 182.
Pickering v. Liverpool Daily Post and Echo Newspapers [1991] 2 AC 370.
- 183.
Later due to reorganization in 2008 after TCEA 2007 its jurisdiction was transferred to first tier Health, Education and Social Care Chamber.
- 184.
Id. Hence it was held that the contempt jurisdiction was rightly applied by the High Court for finding the contempt of an order of the Mental Health Review Tribunal.
- 185.
Supra (n 169), Gary Slapper et al., at 627.
- 186.
Supra (n 119), Chantal Stebbings at 106.
- 187.
Id. at 107.
- 188.
For a critical discussion on this aspect please see another ‘Chapter-5’ of this work titled, ‘Towards more Robust System’.
- 189.
See generally supra (n 132), Gavin Drewry. For further discussion on this aspect please see the chapter on ‘Towards more robust system’ as part of this work.
- 190.
Supra (n 166). Doubts have been raised on the expertise level of such members and is a controversial issue.
- 191.
R Huxley and J Martin, Unlocking The English Legal System (Routledge, 5th ed, 2017) 262.
- 192.
Id.
- 193.
Supra (n 169), Gary Slapper at 638.
- 194.
Ibid (n 192) at 263. This is done so that the mandate of the TCE Act, 2007 could be fulfilled. As the statute under S.2(3)(d) suggests the ‘proportionate dispute resolution’. The Ministry of Justice operates various programs to facilitate this cause further in the right direction.
- 195.
Id. This has proved to be a double-edged sword for the litigants as the parties representing in person have been seen to have less chances of succeeding in their claims as against the parties represented by a counselor. There has been research based evidence for this claim.; See also, Hazel Genn & Yvette Genn, ‘The Effectiveness of Representation at Tribunals’ (London: Lord Chancellor's. Department, 1989). For reference this research could be seen. Though as the year of the study indicates it was based on the previous system where tribunals were not integrated. But since the representation and the procedures for same have not changed drastically the same could be taken as an indication of the scenario.
- 196.
Id at 264. Though it has been seen that not in all the cases the Chairperson of the Tribunal perform as active role as is expected from the Chair in case of inquisitorial proceeds.
- 197.
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 [United Kingdom].
- 198.
The House of Lords in its decision applied the doctrine of Legitimate Expectation for reviewing the ban upon the rights of the employees to form or join unions. The case also delineates the limits of the common law review.
- 199.
id.
- 200.
See, Schedule IX to the Finance Act, 2017.
- 201.
This was done through the Social Security Act, 1998 and The Social Security and Child Support (Decisions and Appeals) Regulations, 1998.; See also, Hartley Dean, ‘Losing appeal? The changing face of redress’, (2004) 12(1) Benefits: a journal of poverty and social justice, 3–7.
- 202.
Id., Hartley Dean at 3–4.; See also, Robin Creyke, ‘Tribunals and access to justice’, (2002) 2(1) Queensland University of Technology Law and Justice Journal 64–82, 69.
- 203.
The Administrative Procedure Act, 1946 (Public Law 404, 79th Congress). Available at, https://www.justice.gov/sites/default/files/jmd/legacy/2014/05/01/act-pl79-404.pdf (last accessed 20th November 2021).
- 204.
See, A.V. Dicey, Introduction To The Study Of The Law Of The Constitution (Macmillan, 10th ed, 1959) 345–348. Professor AV Dicey did not like the idea of insulation of the decisions of the officials of the Conseil d’etat from the review by ordinary courts’ jurisdiction and he considered such arrangement to be outside of the Rule of Law doctrine as well as against the principle of Separation of Powers.; See, H. W. Arthurs, ‘Rethinking Administrative Law: A Slightly Dicey Business’, (1979) 17 Osgoode Hall Law Journal 1, 6. The article discusses the legality of tribunals and them being adopted though with a caution that certain transcendental values ought to be followed by them. It also discusses the shortcomings in the Dicey’s application of Rule of Law to other jurisdictions.; See also, James E. Pfander, ‘Dicey's Nightmare: An Essay on the Rule of Law’, (2019) 107 California Law Review 737, 744. The article discusses more on the aspects that AV Dicey elaborated with respect to the Rule of Law and the Common Law’s beneficial universal application of the same.
- 205.
See, James E. Moliterno, ‘The Administrative Judiciary's Independence Myth’, (2007) 27 Journal of the National Association of Administrative Law Judges 53.
- 206.
Id., James E. Moliterno at 96.; See also, Frank B. Cross, ‘Thoughts on Goldilocks and Judicial Independence’, (2003) 64 Ohio State Law Journal 195–218. Here the author argues that random unfettered judicial independence would prove detrimental for not only the judiciary but also for citizenry at large rather an empirical study is required based on the roles and functioning of the particular branch of the judiciary and the role performed by the body in adjudication, nature of cases involved, complexities of issues involved, etc.
- 207.
See, Peter L Strauss, ‘The place of agencies in Government: Separation of Powers and the fourth branch’, (1984) 84 (3) Columbia Law Review 573.
- 208.
Peter Cane, Administrative Tribunals and Adjudication (Hart 2009) 48–49.
- 209.
Id.
- 210.
Id. This could be signified by comparing this evolution of the UK’s the Railway and Canal Traffic Act, 1854 that was the result of increasing industrialization and pertinent activities and discussed by Professor Cane.
- 211.
Id., The difference in the ideology of Courts from the dispenser of justice from these bodies having the psychology of not only regulating but also promoting the economic activity developing through these new emerging industrial fields is also said to be the factor promoting trust on these bodies as against the Court’s system.
- 212.
The Articles I, II and III divide the government into Legislative, Executive and Judicial compartments having their powers in their specified domains.
- 213.
The protection with regard to salary, tenure, decisions, etc. are certain provisions among others that enshrine the independence of the judiciary in USA. The judges that are protected through such protection are known and referred as the ‘Article III judges’ popularly.
- 214.
The decision in reference being American Insurance Co v. Canter (1828) 1 Pet 511. The decision allowed the bodies akin to the modern Tribunals who could exercise the adjudicatory powers which could be difficult to distinguish from the power exercised by the local inferior courts at different federal levels.
- 215.
Supra (n 209), P. Cane at 50.
- 216.
Id. at 51.
- 217.
Id.; See also, The Government of United States of America, ‘The Report of the President’s Committee on Administrative Management’ (Washington, 1937) 209–214.; See also, RE Cushman, The Independent Regulatory Commissions (OUP 1941).
- 218.
See, Morgan v. United States (1936) 298 US 468.
- 219.
Supra (n 209), P. Cane at 51.
- 220.
Id., P Cane.; Please see the discussion in this Chapter’s section pertaining the UK’s Legal System and the book written by Lord CJ Hewart criticizing the taking away of judicial power that lead to the genesis of Donoughmore Committee to review the same.; Even the ABA, i.e., American Bar Association categorically criticized this practice of executive bodies exercising the adjudicatory functions. The criticisms involved the issues like maintenance of Separation of Powers, protection of independence of judiciary, rule of law and the individual’s right to have the judicial review by independent courts.
- 221.
Id, P Cane at 51–52.
- 222.
Supra (n 218), The Report of the President’s Committee at 39–40. The Committee while referring the ‘independent regulatory commissions’ called their growth as random and unplanned and their accountability to none except Courts but only on the legality aspect of their decisions.
- 223.
Supra (n 209), P. Cane at 52.
- 224.
Id.
- 225.
Id. at 53. Thus, through such exercise the control of the President on these bodies shall be re-established and the adjudicatory functions can be prevented from the criticism regarding the independence aspects.
- 226.
Id.
- 227.
Id. at 54. This was done through a proposal of a legislation in the form of the Walter Logan Bill, 1938 drafted by a special committee of the American bar Association.
- 228.
Id., The creation of this Committee was to cause the failure of the draft bill of 1938. But despite this the bill was passed by the Congress only to be defeated later by the Veto of the President which sustained through the Congress by a narrow margin.
- 229.
Id.
- 230.
The Act contained twelve sections only defining various procedural constraints while conducting the procedures before the agencies and departments covered.
- 231.
See, McNollgast, ‘The Political Origins of the Administrative Procedure Act’, (1999) 15(1) Journal of Law Economics & Organization 180–217, 182, 183. Refer for an intriguing discussion on the politics behind the creation of such a significant Act. According to the Article, this compromise led by the democrats shattered by the death of their great leader proposing stronger procedural control on the administration’s power was based on the belief that firstly, the speculated chances of Truman’s retaining the Presidency were bleak through it proved that he retained the same till 1953 and secondly, the New Deal’s reforms could be preserved through these procedural controls on the upcoming Republican Government’s power.
- 232.
id, The creation of this bill has been referred as a compromise between the demand for radical change in disbanding these bodies altogether towards the acceptance of these bodies through the procedural modifications gained from the legislation of 1946.
- 233.
Supra (n 209), P. Cane at 54. A similar shift of focus on procedural fairness and due process before these bodies was seen through the Frank Committee’s report in the context of United Kingdom as discussed in this Chapter above.
- 234.
Id., For more on this See, to the Kerr Committee’s recommendations and the reasons for evolution of these bodies in Australian context discussed above in this Chapter.
- 235.
Please see, Ss.4 & 5 of the act that broadly separates these functions and the S.6 that defines the ancillary matters remaining thereto.
- 236.
The name evolved from the Hearing Examiners in the year 1972 so as to increase the stature of the office and provide a formal nomenclature to adjudicators as part of the process of juridification of these agencies by the APA.
- 237.
The Informal adjudication happens in the nature of in chamber negotiations, or the inspections conducted, or the conferences for the purpose of decision-making where no such formal hearings take place.
- 238.
Supra (n 209), P. Cane at 55.
- 239.
Under S.5 of the APA this separation is proposed so that the adjudicator do not get influenced from the conduct of these personnel.
- 240.
Supra (n 209), P. Cane at 56.
- 241.
id.
- 242.
See, National Conference of Commissioners on Uniform State Laws, ‘Revised Model State Administrative Procedure Act’ (Chicago, Illinois, July, 2010). The National Commissioners on Uniform State Law, USA, a body similar to the Law Commission of India, constituted to advise on the changes needed in its functions advised in 2010 in favor of the need for the Uniform Model State APA. Available at, https://www.uniformlaws.org/HigherLogic/System/DownloadDocumentFile.ashx?DocumentFileKey=3ab796d4-9636-d856-48e5-b638021eb54d&forceDialog=0 (Last Accessed 20th November 2021).
- 243.
See, the decision of the first circuit court in, Citizens Awareness Network v. United States 391 F.3d 338. In the case where the agency exercising adjudicatory powers decide against allowing the formal cross examination the party must approach the hearing officer and convince her on the essentiality of the formal cross examination. For concept of Interrogatories under Indian Law please refer S. 30 and Order XI of the Code of Civil Procedure, 1908.
- 244.
M Asimow, ‘The Administrative Judiciary: ALJs in Historical Perspective’, (2000) 20 Journal of the National Association of Administrative Law Judges 157, 163. Available at, https://core.ac.uk/download/pdf/71933703.pdf (Last accessed 20th November 2021). Professor Asimow goes to the extent of claiming that the APA proved to be magna carta for the state’s administrative rulemaking and adjudication in the sense that there was no major change in it for a very long time gaining wide acceptance.; Michael Asimow, ‘Five Models of Administrative Adjudication’, (2015) 63 American Journal of Comparative Law 3. Later Professor Asimow classified five ‘models’ of administrative adjudication.
- 245.
Supra (n 209), P. Cane at 236–238. Professor Cane discusses the difficulty in application of a general comprehensive code with uniform prescriptions due to varied nature of these forums. As tribunals are generalists as well as specialized bodies, applying one set of rules to all these bodies might make the things difficult for the latter except few uniform procedural standards. Professor Cane provides the example of UK where the TCE Act, 2007 provided for a Procedural Committee for Tribunals and thus this body decides the procedural aspects and requirements for these bodies. Though the major debates on the Tribunals procedures converge on the aspects of them being ‘inquisitorial’ or ‘adversarial’ but according to Professor Cane this is not the right method, due to uncertainty about their meanings, for describing the Tribunal procedures and according to him the roles played by the adjudicator and the parties need to be focused more.
- 246.
As like his predecessor from the Republican Party, i.e., President Eisenhower, Nixon also appointed an advisory council on the Executive Organizations that was also popularly referred to as the ‘Ash Council’. The Council recommended the establishment of administrative courts particularly for the review of decisions of some of the significant commissions and agencies so as to bring them within a unified structure and act as a separate adjudicatory body instead of one agency with both the functions of rulemaking and adjudication.
- 247.
See, Harold H. Bruff, ‘Coordinating Judicial Review in Administrative Law’, (1992) 39 UCLA Law Review 1193, 1231. The author favors the broad jurisdiction to be vested in an administrative court for it to function properly unlike that proposed in the Council setup by Nixon. The specialization argument is countered by the fact that broader the jurisdiction of the court, the broader would be the relief it would be able to render without limiting it to certain narrow specific field. Also an administrative court with wider powers to review the decisions of inferior agencies would help bring uniformity in the nation-wide legal decisions, would be inexpensive as against the system of multiple specialist courts, etc. Hence according to the author, the benefits of broad administrative court outweighs the benefits of having multiple specialist adjudicators.
- 248.
See, Michael Asimow, ‘Chapter 5- Inquisitorial Adjudication and Mass Justice in American Administrative law’, in Laverne Jacobs et al. (eds), The Nature Of Inquisitorial Processes In Administrative Regimes: Global Perspectives E-edition (Routledge 2013).
- 249.
Supra (n 232), McNollgast, the discussion regarding the compromise reached between the Democrat supporters of New Deal after the death of Roosevelt and how the power dynamics played part in the compromise securing much accountability of the agencies through the enactment of APA for preserving the New Deal policies from these agencies in case Democrats lose support.
- 250.
See, S.5 of The Federal APA, 1946.
- 251.
These heads also look after other agency functions such as the prosecutions, rulemaking, investigatory process, etc.; See supra (n 249), Michael Asimow.
- 252.
Supra (n 249), Michael Asimow. Under; See also, Michael Asimow, ‘The Spreading Umbrella: Extending the APA’s Adjudication Provisions to All Evidentiary Hearings Required by Statute’, (2004) 56 Administrative Law Review 1003, 1004.
- 253.
Id.; See also, S. 554(a) of the Administrative Procedures Act, 1946.
- 254.
John D. Richard, ‘Judicial Review in Canada’, (2007) 45 Duquesne Law Review 483, 491.
- 255.
Re Residential Tenancies Act, 1979 [1981] 1 S.C.R. 714.
- 256.
Id.
- 257.
Ibid., John D. Richard at 492.
- 258.
Sasha Baglay, Introduction To The Canadian Legal System (Pearson 2016) 158–162. A comprehensive list of these bodies has been provided by Baglay.
- 259.
Supra (n 255), John D Richard at 492.; See also supra (n 259), Sasha Baglay at 167.
- 260.
id., JD Richard.
- 261.
ibid., Sasha Baglay at 167.
- 262.
Id. at 163.
- 263.
Supra (n 255), JD Richard at 498.; See also, Nova Scotia (WCB) v. Laseur 2003 SCC 54 [Canada]. The case discussed the question of the interpretative vires vested with these bodies and held that it is the intention vested in the parent statute that must be seen for the purpose.
- 264.
See, L Chandra Kumar v. Union of India AIR 1997 SC 1125 [India].
- 265.
Supra (n 255), JD Richard at 498.
- 266.
id.
- 267.
id. at 499.
- 268.
id.
- 269.
id; This must be read with the interpretive leeway granted by the Supreme Court of India in the L Chandra Kumar v. Union of India, AIR 1997 SC 1125 [India] through the seven judge bench decision in which these quasi-judicial bodies were vested with the powers of similar nature but limiting their ability to declare the provision of a statute as unconstitutional.
- 270.
Supra (n 259), Sasha Baglay at 164–165. The aspects being the right of fair hearing and the right of independent forum following the two iconic maxims, i.e., Audi alteram partem and Nemo judex in causa sua, i.e., the doctrine against bias signifying both the principles. Both these rights as students of the discipline of Administrative Law be reminded, are assisted and aided by many other rights such as the right to have counsel, to call support witnesses, etc.; See also, the decision of the Canadian Supreme Court in Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817 [Canada]. Available at, https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1717/index.do (Last Accessed 2nd March 2020). In the decision the Court directed certain contextual aspects to be considered for determination of the fairness of a particular decision like the nature of legislation under which the decision is made, decisional conditions, consistency of procedure chosen for making it and its effect on the parties.
- 271.
Supra (n 259), Sasha Baglay at 175–177.
- 272.
Id. The reviewability standards include the extent of the decision of the tribunal and the obedient exercise of the same within the powers vested in it through the parent statute. The author in the book provides readers with an example of a case of Johnstone v. Canada [2014] FCJ No 455 in which though the court while reviewing a decision of the Tribunal on Human Rights upheld the major part of the decision but remanded the decision back providing certain areas where the tribunal exceeded its authority.
- 273.
Ocean Port Hotel v. B.C. (GM, LQ) 2001 SCC 52. Available at, https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1891/index.do (Last Accessed 2nd March 2020). The decision is worth reading on many aspects like Canadian legal understanding of the ‘Tribunal’ and ‘Court’. Emphasis is supplied through the decision of then Chief Justice McLachlin who as part of her decision in ¶ ¶ 23–24 clarifies this distinction.
- 274.
See also, David J. Mullan, ‘Ocean Port Hotel and Statutory Compromises of Tribunal Independence’, (2002) 9 Canadian Labour & Employment Law Journal 193. The much celebrated and revered author of this paper Professor Mullan discusses how the decision has the potential of impacting the future independence of various other adjudicators of the similar nature. As the decision appears to be granting importance to the statutory mandates over the common law principles required for the independence of adjudicators.
- 275.
This has to be seen in the light of the Dewar’s and Hewat’s decision [Dewar v. Ontario 1998, 156 D.L.R. (4th) 202 (C.A.); Hewat v. Ontario 1998, 156 D.L.R. (4th) 193 (C.A.)] where the interference in the form of removals of the members of the Ottawa-Carleton Police Services Board and Ontario Labor Relations Board respectively were invalidated by the Court as they were before the expiry of their terms.
- 276.
Ibid. Please see the discussion starting ¶ ¶ 23 to 24 in the judgment cited above.
- 277.
Supra (n 275). This view taken by the Court is vehemently criticized by Professor Mullan in his paper by calling it oversimplification of the understanding of the administration of tribunals and the process.
- 278.
Newfoundland Telephone Co v. Newfoundland (Board of Commissioners of Public Utilities) [1992] 1 SCR 623 [Canada].
- 279.
Id, Please see ¶ 41 of the decision.
- 280.
Ibid; See also, David J. Mullan, ‘Ocean Port Hotel and Statutory Compromises of Tribunal Independence’, (2002) 9 Canadian Labour & Employment Law Journal 193.
- 281.
Id. at 203.
- 282.
Id.
- 283.
Please see, H. N. Janisch, ‘Independence of Administrative Tribunals in Canada: In Praise of Structural Heretics’, (1988) 8 Journal of the National Association of Administrative Law Judiciary 75.
- 284.
Id; Please see the ‘Conclusion’ section of the article referred.
- 285.
David J. Mullan, ‘The Future of Canadian Administrative Law’, (1991) 16 Queen's Law Journal 77, 87–89. This discussion assumes much importance after the enforcement of the Canadian Charter of Rights and Freedoms in 1982.
- 286.
In India when policy decisions are arbitrary, mala-fide, per incuriam, etc. them could be successfully judicially reviewed before the courts under the doctrine of substantive and procedural ultra vires. But this review has certain limitations based upon non-intervention in the factual position or non-appreciation of the facts or the alternative available to the policy challenged. Since policy-making is considered as expertise of the executive, the courts do not intervene in the merits of such decisions following the norms of Separation of Powers doctrine and exercising self-restraint.
- 287.
Supra (n 169), Gary Slapper at 636–638.
- 288.
For example, The tribunals like Debt Recovery Tribunal (DRT), Income Tax Appellate Tribunal (ITAT), National Company Law Tribunal (NCLT), etc.; See also, Joshi Kashyap, ‘Tribunalisation In India: Where We Are Lacking?’ LiveLaw Online Legal Magazine Column, 15th Sep. 2020. Available at, http://www.livelaw.in/columns/tribunalisation-in-india-where-we-are-lacking-162949www.livelaw.in/columns/tribunalisation-in-india-where-we-are-lacking-162949 (Last accessed 20th November 2021).
- 289.
See, S.19 of the Contempt of Court Act, 1981 [United Kingdom]. The legislation can be accessed at, https://www.legislation.gov.uk/ukpga/1981/49/1999-01-31/data.pdf (Last accessed 20th November 2021).
- 290.
Pickering v. Liverpool Daily Post and Echo Newspapers, [1991] 2 AC 370.
- 291.
See, IP Massey, Compulsions and Constraints of Administrative Justice Against the Backdrop of the Swaran Singh Committee Report, (1976) 3 SCC J-9,14. Far back and during the time of the paradigm shift in administrative justice in India, i.e., in 1976, Professor Massey recommended APA [USA] or the Tribunal and Enquiries Act, 1958 [United Kingdom] like code in India for ensuring the minimum standards in administrative procedure and particularly in Administrative Justice.
- 292.
Supra (n 274), Ocean Port Hotel, 2001 SCC 52 [Canada].
- 293.
Supra (n 5), Rojer Mathew ¶ 158 at pages 87–88. Available at, https://www.sci.gov.in/pdf/JUD_4.pdf (Last Accessed 20th November 2021).
- 294.
Id.
- 295.
Supreme Court Advocates-on- Record Association v. Union of India (1993) 4 SCC 441.
- 296.
Supra (n 201).
- 297.
At the inauguration of the Armed Forces Tribunal in 2009 the nine thousand cases relating army matters were pending with the judiciary that got handed over to the tribunal. See, Press Note of the Ministry of Defense, ‘Armed Forces Tribunal to be inaugurated tomorrow’ Press Information Bureau, 7th August 2009. Available at, https://pib.gov.in/newsite/erelcontent.aspx?relid=51613 (Last accessed 30th January 2022).
- 298.
See, Bhadra Sinha and Amrita Nayak Dutta, ‘Armed Forces Tribunal has 19,000 pending cases, but here’s why this is least of its problems’ The Print E-Edition, 18 March 2021. Available at, https://theprint.in/judiciary/armed-forces-tribunal-has-19000-pending-cases-but-heres-why-this-is-least-of-its-problems/624020/ (Last accessed 30th January 2022).
- 299.
For a more detailed and comprehensive chart on the hierarchy of these bodies and the complete structure please visit the Official Website of the Judiciary of the United Kingdom. Available at, https://www.judiciary.uk/wp-content/uploads/2020/08/tribunals-chart-updated-May-2020-1.pdf (Last Accessed 20th November 2021).; See also, Gary Slapper, et. al., The English Legal System (Routledge, 2017) 633, 637. The Table is also inspired from the one provided in this book.
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Singh, D. (2023). Administrative Adjudication in the Common Law: A Comparison of Setups and Legal Tensions with India. In: John, M., Devaiah, V.H., Baruah, P., Tundawala, M., Kumar, N. (eds) The Indian Yearbook of Comparative Law 2020. The Indian Yearbook of Comparative Law. Springer, Singapore. https://doi.org/10.1007/978-981-99-5467-4_8
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