The origin of administrative law as a branch of law can be traced back to the advent of formalization of regulations over societies all across. In modern times, especially in the third world era, every state has in some way or another their own set of administrative laws.
Introduction
In modern times, the administration has assumed such extensive contours that it’s almost impossible to define it. As the functions of the governments and their subservient administrative institutions are continuously expanding qualitatively as well as quantitatively, administrative law is also growing continuously. Thus, no complete and absolute definition of administrative law can be put forth.
If we take a closer look into the whole administrative process and ecosystem, various administrative functions are performed by the administrative organs and units so much so that they cut across the rigid bounds of classification of organs of the state and converge all the powers exercised by all the organs, i.e. legislature, executive, judiciary, into one.
So basically, all the functions which are given to the administrative bodies are performed by the means of administrative actions. In simpler words, administrative action is the action which is neither completely legislative nor strictly judicial in nature but concerns itself with the analysis of a particular situation and mode of proceeding upon it.
All the administrative actions under the sun could be broadly classified into 3 major categories. These are –
- Quasi-Legislative actions
- Quasi-Judicial actions
- Purely Administrative actions
In India, over time, the Supreme Court has settled down the position regarding the classification of administrative action by the executive.
The Apex body has, in one of its earlier judgements, observed that “In the performance of the executive functions, public authorities issue orders which are not far removed from legislation and make decisions affecting the personal and proprietary rights of individuals which are quasi-judicial in character. In addition to these quasi-judicial, and quasi-legislative functions, the executive has also been empowered by statute to exercise functions which are legislative and judicial in character, and in certain instances, powers are exercised that appear to partake at the same moment of legislative, executive and judicial characteristics.” [1]
Quasi-Legislative Actions
Traditionally, legislation came to be understood as the sole proprietary of the Law-making body; Parliament, in India. However, with the growth of complexity in the politico-societal sphere and with a dilution of the concept of laissez-faire – in political as well as financial way, the advent of Quasi-Legislative actions or delegated legislation was inevitable. As the scope of the exercising of power by the executive wing has increased over the decades, the legislature cannot perform all its functions effectively. This demands divergence or de-centralisation of the legislative powers.
In India, though the intention of the Constitution framers was that the legislative powers should be exercised only by those who derive their mandate directly from the people and in whom it’s originally vested [2], this cannot be a pragmatic approach in lieu of the efficient working of the complex and rather inclusive form of the modern governments.
But, firstly it is important to understand what actually delegated legislation or Quasi-Legislative action means. According to the great Jurist Salmond, delegated legislation is something that proceeds from any authority other than the sovereign power and is, therefore, dependent for its continued existence or validity on some superior or supreme authority. [3]
The term Quasi-Legislative actions are normally used in two different settings. The first one is the exercise of power by some subservient or subordinate body and the second one, is the subsidiary rules and orders which originate from such subsidiary bodies themselves.
In one of the leading cases regarding the identification of delegated legislation, Express Newspaper Ltd. v. Union of India, the Supreme Court of India pointed out the underlying difficulty in identifying the exact nature of administrative action and observed that “One of the greatest difficulties of properly classifying a particular function of an administrative agency is that frequently—and, indeed, typically— a single function has three aspects- It is partly legislative, partly judicial and partly administrative. Consider, for example, the function of rate-making.” [4]
However, Bhagwati J then also clarified by an illustration, “Consider, for example, the function of rate-making. It has sometimes been characterised as legislative, sometimes as judicial. In some aspects, it involves merely executive or administrative powers. For example, where the Interstate Commerce Commission fixes a tariff of charges for any railroad its functions are viewed as legislative. But where the question of decision is whether a shipment of a mixture of coffee and chicory should be charged the lower rate established for chicory, the question is more nearly judicial. On the other hand, where the problem is merely the calculation of the total freight charges due for a particular shipment, the determination can fairly be described as an administrative act.” [5]
Notable Jurist HWR Wade, upon this matter of distinction and identification, has remarked in his book, “[they] are easy enough to distinguish at the extremities of the spectrum: an Act of Parliament is legislative and a deportation order is administrative. But in between is a wide area where either label can be used according to taste, for example, where Ministers making an order affecting a large number of people” [6]
Quasi-Judicial Actions
Just as the name suggests, the Actions having Quasi-Judicial nature involve adjudicating functions. The evolution of such Quasi-Judicial actions can be credited to the escalating pressure upon the judiciary in recent years that may result in the delay injustice. Such actions are administrative in nature but require judicial control and are mainly performed by the executive or administrative bodies.
A Quasi-Judicial decision is one which has some of the attributes of a judicial decision, but completely not all. It involves resolving disputes by the administrative bodies or tribunals for special subject matters.
Decisions which are purely administrative in nature stand on a wholly different pedestal from quasi-judicial as well as from judicial decisions and must be distinguished accordingly. In the case of administrative action, any kind of legal obligation upon the person charged with the duty of rendering a particular decision after considering and weighing submissions and arguments, or collating any available evidence, is absent. The grounds upon which the authority acts, and the recourse which it takes to inform itself before acting, are left entirely to the authority’s discretion.
In one of the leading causes of Province of Bombay v. Khushaldas Advani, Section 3 of Bombay Land Requisition Ordinance was in question, which reads as – “If in the opinion of the Provincial Government it is necessary or expedient to do so, the Provincial Government may by order in writing requisition any land for any public purpose:
Provided that no land used for the purpose of public religious worship or for any purpose which the Provincial Government may specify by notification in the Official Gazette shall be requisitioned under this section.”
It was contended that under Section 3 of the Ordinance, the decision of the Bombay Provincial Government to requisition certain premises for the purpose of allocating it to a refugee from Sindh was clearly a matter of its opinion and is not liable to be tested by any objective standards of the Constitutional Courts.
It was observed in this case that the judicial functions can be said to start with the presentation of a case, ascertainment of the fact by means of evidence, disputes that involve a question of law, and finally the application of law to the concerning fact of the case. [7]
Thus, a true judicial decision presupposes an existing dispute between two more parties, and then involves requisites [8]:
- the presentation of their case by the parties to the dispute;
- if the dispute between them is a question of fact, the ascertainment of fact by means of evidence adduced by the parties to the dispute and often with the assistance of argument by or on behalf of the parties on the evidence;
- if the dispute between them is a question of law, the submission of legal argument by the parties; and
- a decision which disposes of the whole matter by finding upon the facts in dispute and an application of the law of the land to the facts so found, including, where required, a ruling upon any disputed question of law.
Purely Administrative Actions
To start with, in the case of AK Kraipak v. Union of India, the Supreme Court of India observed that “…in order to determine whether the action performed by an administrative agency is quasi-judicial or administrative, one has to see the nature of powers conferred, the powers are given to whom and under which framework and situations are they conferred.” [9] Also, in the case of Ram Jawaya Kapur v. State of Punjab, it was observed by the Hon’ble Apex Body that an exhaustive definition of executive function can’t be devised. Ordinarily, executive power refers to the residue of governmental functions that remain after legislative and judicial functions are taken away. [10]
After such observations, it is needless to say that distinguishing between Purely Administrative and Quasi-Judicial actions is a very cumbersome and difficult task. However, it can be reckoned that all those functions, which are neither Quasi-Judicial or Quasi-Legislative, are pure administrative functions.
Although such actions are purely administrative in nature, it must not be understood that these actions cannot escape the doctrine of Natural Justice. In the case of In Re Pergamon Press Ltd., it was established that whether the function is discharged by the administration may be regarded as ‘quasi-judicial’ or ‘administrative’, it must nevertheless be discharged with fairness. [11] Such administrative actions can be statutory that have the force of law or non-statutory are devoid of such force. Although the bulk of such action is statutory in nature and deriving their existence from a statute or the Constitution, in some cases may be non-statutory, such as issuing directions to subordinate authorities or bodies, but its violation may be visited by various disciplinary actions.
Conclusion
There is a general consensus amongst writers, lawyers and jurists that any effort of classifying or grading administrative functions on any conceptual or hypothetical basis is redundant. However, sometimes, an administrative lawyer or a student of administrative law, has to classify actions broadly into administrative, quasi-legislative and quasi-judicial.
Thus, such classifications are purely academic in nature and do not have any bearing upon their application as these principles can’t be applied in form of close and separated caskets.
References
[1] Jayantilal Amrit Lal Shodhan vs F.N. Rana And Others, 1964 SCR (5) 294.
[2] In Re Delhi Law Act Case, AIR 1951 SC 332.
[3] Agricultural Market Committee v. Shalimar Chemical Works Ltd., AIR 1997 SC 2502.
[4] AIR 1958 SC 578.
[5] Id.
[6] Wade, HWR., Administrative Law (Oxford University Press, 8th Edn, 2000).
[7] AIR 1950 SC 222.
[8] COMMITTEE ON MINISTER’S POWERS, 73-75, 81-82, 9 (1929).
[9] AIR 1970 SC 150.
[10] AIR 1955 SC 549.
[11] (1970) 3 All E.R. 535.
BY DHRUV VATSYAYAN | FACULTY OF LAW BHU