55

CHAPTER-3
Concept and Evolution of Administrative Tribunals in India

3.1 Genesis and Growth

The modern phenomenon of administration of justice by
Tribunals is essentially a phenomenon of recent origin in
India. It has grown and flourished mainly after India attained
freedom and adopted a Constitution for the new Republic,
setting forth the objective of achieving socio-economic justice
to all -its people .
This should not, however, be taken to mean that there
existed no administrative Tribunals in India during the
pre-independence period. On the contrary, a fairly good number
of such bodies had made their appearance even during the
2
British period . It may, however, be emphasised that the
origin and growth of administrative Tribunals with which we are
so familiar today, can be attributed to certain factors and
reasons which are quite different from those that formed the
basis and genesis of administrative Tribunals set-up during
the pre-independence period.
The modern phenomenon of administration of justice by
Tribunals is mainly a by-product of welfare-State and for quite
obvious historical reasons there hardly existed any such
concept of State welfarism during the period of colonial rule
in India. Virtually, till the end of British rule in India the
Government was concerned only with the most primary duties and
1. See, Preamble to the Constitution of India and also the provisions of Chapter IV,dealing
with the Directive Principles of State Policy.
2. See, Ramachandran.V.G., Administrative Law (1984) 69-75.
 56

even though at a later stage it did take up some functions of a

welfare nature they were not discharged on a comprehensive and
efficient basis .
Modern administrative Tribunals have grown and developed,
mainly, as a result of the reaction against the highly
individualistic and utterly technical and formalistic approach
of the Courts which was found totally unsulted to deal with a
large number of cases arising in the implementation of various
socio-economic measures enacted by the modern welfare State.
The imperatives of socio-economic justice necessitated the
creation of certain new formus of adjudication which would be
responsive to the social needs of the time and provide a cheap,
informal and speedy justice to all.
The birth and growth of administrative Tribunals, in this
sense, represents a movement from 'judicial justice' to
'administrative justice1 in order to overcome the rigours of
judicial process and behaviour . As opposed to this, the
growth of administrative Tribunals during the British period in
India reflects a reverse trend, that is, a movement from
administrative arbitrariness and injustice to the gradual
judlcialisation of administrative process.
To begin with, the company's rule in India was purely
mercenary with an eye on trade and another on power. A
Governmental machinery was, accordingly, set-up with the
objective of collecting maximum revenue from the citizens and
3. "In 1830,nearly sixty years after the Company stood forth as D1wan, Sir Charles Metcalfe
a Senior C1v1l Servant was of the view that India required no roads and fact there were
none", see, R o y . N . C , The C1v1l Services 1n India (1960) 6,10.
4. The expression "Executive Justice" has been used by Roscoe Pound, 1n his book The Spirit
of Common Law (1963) 7,118,while referring to the parallel stage 1n the development of
American legal system.
 57

the maintenance of law and order which was considered to be the

sine qua non for the effective realisation of revenue from the
public. Every Governmental activity was also primarily
directed towards that end. Administration of justice was no
exception to this predominant theme of the company's rule in
India.

As a matter of fact, the entire system of administration

of justice during this period can be characterised as one of
"Executive Justice" or "Civilian Justice" because, practically
the entirety of judicial functions were performed by the civil
servants of the company who administered justice more on the
basis of their notions of common sense than by the strict
application of legal rules and norms. In the exercise of their
judicial functions these administrator - judges were
predominently guided by the revenue considerations and other
imperial interests.
However, after 1858 when India came under the direct
control of the Crown there was a slight increase in the scope
of Governmental activities in view of the establishment of
Legislative Councils with some Indian participation; the
development of municipal institutions in the towns; and the
establishment of local self-governing institutions in the rural
5
areas . With the result, laws and regulations were made
covering the various aspects of public life, such as public
health, safety and morality; transport; labour; trade and
5. Roy, N.C., supra note 3, at pp.8-9.
 58

business . Under these legislative measures special powers of

adjudication were conferred on certain administrative
7
authorities and thus, giving rise to the modern concept of
public law and administrative adjudication in India.
The political changes of 1919 inevitably resulted in a
o
quickening of Governmental activity which gave a further
impetus to the process of investing the administration with
adjudicatory powers in diverse situations. However, as in the
case of Courts, this new device of administrative adjudication
was invented and pressed into service primarily to protect and
promote, directly or indirectly, the interests of the ruler.
In the interest of the Governmental efficiency in revenue
collection the Government needed speedy disposal of certain
disputes by an agency sympathetic to its cause. Hence, speed
and the need for a forum sympathetic, not to the new classes
and interests but to the Empire, were the initial factors
determining the Constitution of Tribunals". In this background
these tribunals functioned merely as appendages to the
administration and operated quite oppressively on the people.
Although during this period of national struggle the
people were fighting for their political rights, yet voices
were also raised from time to time, against the administrative
injustices perpeterated by these new adjudicatory agencies,
demanding the restoration of all judicial functions to the
6. For the various legislations enacted In these areas, see, Ramachandran.V.G., supra note
2, at pp.69-73.
7. For details, see, Ibid., Appendix I, at pp.943-959.
8. See. Report of the Government of India Secretariat, (1937) 3.
9. Singh,M.M., Justice by Tribunals, (1973) 255.
 59

independent Courts of law and thereby maintain a separation

between the judiciary and the administration. With a view to
quieten this social outcry and to generate the faith of the
people in administrative justice the British ruler conceived
the device of judicialisatlon of administration. In course of
time these "judicialised" administrative Tribunals received the
public approval, thus, paving for the further growth of these
bodies. By 19^7 a large number of such bodies had come into
existence in India and, with few honourable exceptions , they
were designed primarily to protect and promote the imperial
interests.
The post-independence period has witnessed a phenomenal
growth in the sphere of administrative adjudication. With the
coming into operation of the new Constitution of the Republic
of India and the consequent transformation of the preceding
police state into a welfare state, the Government has come to
assume new responsibilities of varied sorts. With a view to
fulfil its Constitutional obligations of securing socio-
economic Justice to all the people, each successive Government
have been embarking upon extensive programmes of social and
economic reconstruction, resulting into a tremendous growth of
administrative process.
Administrative adjudication has become a more obvious and
more readily acknowledged device to effectively enforce the

10. That Is, where administrative adjudication was provided for proper and efficient
Implementation of any social welfare scheme embodied 1n the legislations, such as,
Workmen's Compensation Act, 1923; The Payment of Wages Act, 1936; Motor Vehicles Act,
1939; The War Injuries (Compensation Insurance) Act, 1943; Industrial Employment
(Standing Orders) Act, 1946; Industrial Disputes Act, 1947, e t c .
 60

complex variety of new rights and obligations for which, as

Lord Denning rightly points out, "the ordinary court is not a
suitable forum" . Administrative tribunals provide greater
attention to individual case- and ensure flexibility in their
approach to social problems, which are so complex that
standardised legislative guidelines are not sufficient to give
justice to the individual. In addition, they offer speedier,
cheaper and easily accessible justice essential for the
effective implementation of welfare schemes involving large
number of small claims. Furthermore, it would have been
practically impossible for the courts to exclusively deal with
the cases arising in the course of implementation of various
schemes of socio-economic improvements.
The Law Commission of India, in its XIV Report on Reform
of Judicial Administration, examined the phenomenon of
Administrative Tribunals and concluded that the growth of
administrative adjudication or Tribunals has become a
world-wide phenomenon in modern times and it recommended, inter
alia, that these bodies should operate within the legal and
procedural framework of the Statute and in the absence thereof
12
should adhere to the principles of natural justice
Subsequently, the Administrative Reforms Commission
set-up by the Government of India, appointed study team on
Administrative Tribunals to "ascertain facts, locate the
principal problem areas, examine solutions for the problems and
11. Freedom Under the La* (1953) 77.
12. See, Report on Reforms of Judicial Administration, (1958), Chapter 31, pp.671-698.
 61

to suggest such of them as they would recommend for the

Commission's consideration" 3. The Study Team confined its
deliberations to the advisability of setting up of
Administrative Tribunals on a few items only. In its 1st
Report, submitted in 1967, it preferred the establishment of
Administrative Tribunals in the matters of civil services,
customs, central excise, sales tax and income tax . The
following year it submitted its Ilnd Report in which the Study
Team recommended the establishment of Administrative Tribunals
in the sphere of land acquisition, insurance and motor vehicle
IS
accident claims . Thus, Administrative Tribunals gained
recognition as valid institutional modes of administering
justice.
Though the Constitution of India also recognises the
existence of adjudicatory bodies, other than the Courts yet,
no concrete steps were taken till 1976 to provide for the
establishment of Administrative Tribunals, directly under the
provisions of the Constitution. The forty-second Amendment to
the Constitution of India, in 1976, introduced a; new Part XIV-A
in the Constitution consisting of Articles 323-A and 323-B
empowering the Parliament and the State Legislatures to create
separate Tribunals for adjudicaton of disputes in certain
17
specific areas '. Acting in pursuance of these provisions the
Parliament enacted Administrative Tribunals Act, 19^51
13. First Report of Study Team on Administrative Tribunals. Administrative Reforms Commission
(1967) 4.
14. Ibid, Chapters V,VI,VI I,VIII and IX.
15. II Report of Study Team on Administrative Tribunals, A.R.C., (1968) pp.7-23 ; 24-37 ; 38-46 .
16. For example, see, Articles 136 and 227.
17. These Include: service matters; taxes; Industrial and labour disputes; land acquisition;
election disputes; production, procurement, supply and distribution of essential goods,etc.
 62

providing for the establishment of Administrative Tribunals,

both at the Centre and State levels, to adjudicate upon
disputes pertaining to service matters of civil servants. The
provisions of the Act have been implemented by the Centre
Government and many of the State Governments

Thus, we find that in the post-independence period there

has occurred a phenomenal growth and development of
Administrative Tribunals in practically every sphere of human
activity. The trend seems to be on the rise particularly in
view of the Constitutional recognition received by it.

3-2 Meaning and Nature

Etymologically, the word "tribunal" means the seat of a
judge; the place where the administers justice . In this
generic sense it is a term of wide import and meaning which
includes within its ambit every adjudicatory body having the
authority to hear and decide disputes so as to bind the
disputant. Originally, the term "tribunal" was used
synonymously with the term "court" - which also bears the same
20
dictionary meaning - the seat of justice . In this manner a
Tribunal was indistinguishable from a court, both having same
import and meaning.
However, with the passage of time, as the society
progressed and an organised system of administration of justice
18. For more details see, Infra Chapters 4 and 9.
19. Webster's Third New International Dictionary of the English Language, (unbr1dged),(1966)
2441.
20. Bouviers Law Dictionary (1914) 695.
 63

developed in every State, a distinction started emerging

between a Tribunal and a Court. The word "court" came to be
used to designate only such Tribunals as formed part of the
organised hierarchy of adjudicatory bodies set-up by the State
to administer justice.

It, thus, came to acquire a restrictive meaning to

include a particular category of Tribunals only. The word
Tribunal, however, retained its old generic meaning. It could,
thus, be said that all courts are Tribunals but all Tribunals
are not courts; a Tribunal is a genus of which courts have
emerged as a specie. Yet, even this distinction was not taken
seriously, to be of much relevance and importance so long as
the courts almost monopolised the judicial power of the State.
The two terms "tribunal" and "court" were quite often used
21
interchangeably
However, in modern times there has been a stupendous
growth of adjudicatory bodies, outside the hierarchy of courts,
possessing power similar to the courts, to decide disputes
between citizens or between citizens and the State. Though
these new varieties of adjudicatory bodies differ widely from
one another in their structure, composition, powers> functions
and procedures yet, the common element found in them is that,
like courts, they decide disputes (lis) between parties and
22
give decisions which have got finality . The growth of these
new adjudicatory agencies, commonly known as Administrative
21. While explaining the second meaning of the concept rule of law, A.V.Dicey has used the
two expressions, "Ordinary tribunals" and "courts", interchangeably, see, Introduction
to the study of the law of the Constitution, (1915) 189.
22. Though, of course, subject to appeal, review and revision as permitted under the
relevant law or the Constitution.
 64

Tribunals, (sometimes also referred to as special Tribunals -*

ok

or Tribunals simpliciter ) , is mainly attributable to the

inability of the courts to deliver that quantity and quality of
justice as is required in a modern welfare State. In the light
of these developments, it has now become necessary to redefine
the word "tribunal" by giving it a distinct meaning.
It may be said that the word "tribunal", simpliciter,
still retains its earlier meaning to include all adjudicatory
bodies having the authority to hear and decide disputes so as
to bind the disputants.In this sense it includes every person
and authority, from an obscure functionary in the Government
department to a regular judge of the Supreme Court, who are
vested, with judicial power of the State, that is, the
administration of justice.
However, the Tribunals with which we are so familiar
today and which we usually term as "administrative tribunals"
constitute a distinct category of Tribunals which can be
regarded as another specie of the genus tribunal. The use of
the word "administrative" qualifying Tribunal serves to
highlight this distinction between the two, the genus and the
specie. In addition, it also emphasises the fact that these
adjudicatory bodies have been set-up mainly for the
25
administrative reasons, that is, of efficiency and expediency.
23. Jackson,R.H., The Machinery of Justice In England (1967) Ch.VI.
24. Wade.H.W.R., Administrative Law (1982) 781-82; Garner,J.F., Administrative Law (1974)194
25. O.Hood Phillips, Constitutional and Administrative Law (1973)498. The term may however
be misleading 1n certain cases, see, Wade.H.W.R., Administrative Law (1982) 781-82.
 65

Thus conceived, an Administrative Tribunal may be said to

mean an adjudicatory body, other than a court, which performs
certain judicial functions of the State. It includes a vast
category of public agencies (an official, a board, a
commission, a specialised tribunals, etc.) who have been
authorised (under special laws) to hear and decide certain
kinds of disputes and to give a final decision which is binding
on the parties. Professor Robson, while quoting an American
writer , has also given a similar meaning to Administrative
Tribunals:
"An Administrative Tribunal 1s the little frequently used (term) 1n the
United States to denote a board or officer which has power to try questions
of law and fact, and to make a decision thereon binding on private persons,
and affecting private rights; and we can employ the term here (1n England)
1n the same sense"?

Thiis stated, the expression "administrative Tribunal" has

a definite and ascertainable meaning. Like Courts, they
constitute a specie of which the Tribunal (in its broad general
sense) is the genus. Both, the Courts and Administrative
Tribunals, exercise the judicial power of the State.

3.21 Indian Context

Although the word "tribunal" occurs in certain Articles
of the Constitution and in few Statutes yet, it is nowhere
defined as a term for the general application. Bharat Bank Vs.
28
Employees of Bharat Bank was the first case that came before
26. M.H.PIIlsbury, Administrative Tribunals, (1922-23) 36 Har.L.Rev. p.407.
27. Justice and Administrative Law (1951) 315
28. AIR 1950 S.C. 188.
 66

the Supreme Court under Article 136. The fundamental question

that arose for the Court's determination was to define and give

meanings to the two terms, 'court* and 'tribunal1, occurring in

that Article 29 .

It was observed by Mahajan,J. that "before a person or

persons can be said to constitute a court, it must be held that

they derive their powers from the State and are exercising

judicial powers of the State" . In order to determine whether

a person or body of persons is exercising judicial powers he

referred to the test of "judicial-power" given by Griffith.C.J.

in Huddart Parker and Co. Vs. Moore head (1909) 8 C.L.R. 330 at

page 337, wherein it is defined as follows:

"The words 'judicial powers... mean the power which every sovereign
authority must of necessity have to decide controversies between Its
subjects, or between Itself and Its subjects, whether the rights relate to
life, liberty or property. The exercise of this power does not begin until
some Tribunal which has power to give a binding and authoritative
decision.... Is called upon to take action".

As regards the meaning and scope of the word Tribunal, it

was observed that the real question to decide in each case is
as to the extent of judicial power of the State exercised by
them; Tribunals which do not derive authority from the
sovereign power cannot fall within the ambit of Article 136 .

29. Clause (1) of the Article 136 reads thus: "Notwithstanding anything 1n this chapter, the
Supreme Court may, 1n Its discretion, grant special leave to appeal from any judgment,
decree, determination, sentence or order, 1n any cause or matter passed or made by any
court or tribunal 1n the territory of India".
30. Supra note 28, at p.195 Lord Atkln's test of "duty to adjudicially" as formulated in
R. V s . Electricity Commissioners (1924) 1. K.B. 171 and as further clarified 1n Ridge
Vs. Baldwin (1964) A.C. 40 was also cited with approval as a guiding principle 1n this
context, Ibid., at p.198.
31. Ibid., at pp.195-6.
 61

Thus, the condition precedent for bringing a Tribunal

within the ambit of Article 136 is that it should be
constituted by the State. Again, a Tribunal would be outside
the ambit of Article 136 if it is not invested any part of the
judicial functions of the State but, discharges purely
administrative or executive duties .
Subsequently, in Harinagar Sugar Mills caseJ ,
Hidayatullah,J.; while referring to the above observation of
Mahajan.J. with approval, further clarified that where a public
agency (the Central Government in that case) exercises judicial
power of the State to adjudicate upon rights of the parties in
civil matters when there is a lis between the contesting
parties, the conclusion is inevitable that it acts as a
ih
Tribunal and not as an Executive bodyJ . The word "tribunal" is
a word of wide import and the words "court" and "tribunal"
embrace within them the exercise of judicial power in all its
formsJ .
From these decisions the position had clearly emerged
that a Tribunal is a public agency, other than a court, which
is invested with a part of the judicial power of the State. To
determine whether an administrative agency is so invested with
judicial powers of the State Lord Alkin's test of "duty to act
judicially" may be adopted. The duty to act judicially
essentially flows where an authority has the power to decide a
32. Ibid.
33. Harinagar Sugar Mills Vs. Shayam Sundar, AIR, 1961 S.C. 1669.
34. Ibid., at p.1676.
35. Ibid., at p.1681.
 68

dispute (lis) between parties which affect their rights and

duties, and to give a final decision which binds the parties.

36

But, in a subsequent case the Supreme Court created some

confusion by super-adding the condition of the "trappings of a

court" before designating a body as Tribunal. About two years

later the Supreme Court again took the opportunity to review

all previous pronouncements on the topic and to lay down a

clear picture as to the nature and meaning of the word

"tribunal" and its relation with the courts. It was observed

by the court that the Tribunals which fall within the purview

of Article 136(1) are, like courts, adjudicating bodies and

they deal with and finally determine disputes between parties

which are entrusted to their jurisdiction-" . It was pointed by

the Court that whereas the procedure followed by the courts is

regularly prescribed, the procedure which the Tribunals have

to follow may not always be so strictly prescribed, but the

approach adopted by both, the Tribunals and the Courts, is

substantially the same, and there is no essential difference

between the functions that they discharge . However, as in the

case of Courts, so also in the case of Tribunals, it is the

State's inherent judicial power which has been transferred. By

"judicial power" was meant power to deal with disputes between

parties and determine them on merits, fairly and objectively-'-'.

36. Jaswant Sugar Hills Vs. Lakshaml Chand, AIR 1963 S.C. 677, at p.685.
37. A.C.Companies Vs. P.N.Sharma, AIR 1965 S.C. 1595,1599.
38. Ibid.
39. Ibid., at p.1603.
 69

It was, next,pointed that the presence of some of the

attributes may assist the determination of the question as to
whether the power exercised by the authority which possesses
the said trappings, is the judicial power of the State or not
but, the main and the basic test, however, is whether the
adjudicating power which a particular authority is empowered to
exercise, has been conferred on it by a statute and can be
ko
regarded as a part of the State's inherent judicial power
Agreeing with the above views, the Supreme Court in
4l
another case , further clarified and added that to be a
"tribunal" does not mean that a body must exercise only the
State's judicial power or that it must exclusively exercise
adjudicatory functions. A body may have multiple functions -
administrative, legislative or judicial; it can be regarded as
a Tribunal in respect of its judicial functions however
42
fractional the same may be
From the foregoing discussion, following observations and
conclusions may, be made.

1. The use of the word "tribunal" in Article 136 in juxata-

position to the word "court" clearly shows that the word
"tribunal" does not include courts, thereby suggesting
that the word "tribunal" has been used in a restrictive
sense and not in the generic sense to include all
adjudicatory bodies.

40. Ibid., at p.1606.

41. All Party H111 Leaders' Conference, S M l l o n g Vs. Captain W.A. Sangma and others, AIR
1961 S.C. 1669, at p.1680.
42. Ibid., at p.2166.
 70

2. 'The word 'tribunal' has frequently been used by the court

in both the senses: the narrower sense of a specie and in
the broader sense as a genus. To say that "all courts are
tribunals but all tribunals are not courts" , is to give
it a broad meaning. Yet, at the same time to hold (and
rightly so) that tribunal in Art. 136(1) does not include
a court, suggests that it may also have a narrower
meaning.

3. Courts have consistently taken the view that an

adjudicatory authority would be designated as a Tribunal
provided it is constituted by the State and is Invested
with any part of the judicial power of the State.
4. To determine whether an authority is invested with
judicial power of the State Lord Atkins' test of "duty to
act judicially"may be applied.
5. Duty to act judicially can be inferred where an authority
is empowered to decide, finally, a dispute or controversy
(lis inter-parties) and thereby affect the rights of the
parties adversly.
6. The presence of the "trappings of a court" may assist in
determining whether an authority is under a duty to act
judicially or not; it cannot be an essential condition
for designating an authority as a Tribunal.

43. Harlnagar Sugar Mills Vs. Sham Sundar Jhunljhunwala, AIR 1961 S.C. 1669, at p.1680.
 71

7. In order that an adjudicatory authority may be character-

ised as a Tribunal it is not necessary that it should be
exclusively engaged in performing judicial functions.

It may finally be concluded that the word "tribunal" (in

its restricted sense) or an "administrative tribunal" refers to
any public agency, other than the ordinary courts of law, which
has got the legal authority to determine any claim, controversy
or dispute (lis-inter-parties ) affecting the rights of the
parties and to give a final decision which binds the parties.

3.3 Kinds and Classification: A General Approach

It has been pointed that the creation of Administrative
Tribunals and the conferment of adjudicatory functions on them
is essentially a twentieth century development. They are the
product of, first, the Industrialism, and then, the coming of
the welfare State. In modern times, there is an increasing
tendency to vest adjudicatory functions in persons, bodies or
institutions outside the hierarchy of regular Courts. This has
led to a stupendous growth and proliferation of Administrative
Tribunals of many different kinds.
Referring to the rapid growth and development of
Administrative Tribunals and authorities in India, the Law
Commission of India remarked:
 72

"The number of Indian statutes which constitute administrative authorities

purely administrative and quasi-judicial 1s legion. Some of these effect
valuable rights of the citizens and Impose onerous obligations on them".

These observations of the Law Commission refer to the

position obtaining in India about more than thirty years ago.
One can simply imagine the all-parvasiveness of Administrative
Tribunals in the present-day governmental scene. Infact, no
one knows for certain as to how many of these bodies exist-in
India to day, as no comprehensive study of these bodies has yet
been undertaken in India . Such a study becomes all the more
difficult as every new statute of social or economic complexion
is adding to their number.

Besides this enormity in their number, the Administrative

Tribunals exhibit a great deal of diversity of kinds. There
exists a bewildering variety or kinds of Administrative
Tribunals with no uniformity of composition, structure, area
of operation or procedure. The only common element among them
is that all these bodies operate, directly or indirectly, under
a statute and perform adjudicatory functions.
Structurally, a Tribunal may be an integral part of the
administrative department which is entrusted with the task of
implementing a particular policy, or it may be largely an
autonomous body free from the control and interference of the
department. Even where it is a part and parcel of the
department the Tribunal may consist of an official specified or

44. XIV Report on Reform of Judicial Administration (1958) 691.

45. A modest attempt was, however, made by the Indian Law Institute 1n this regard, See,
Administrative Tribunals 1n India. Existing and Proposed (1977) ed. by S.N.Jain.
 73

designated in the statute; or the task may be entrusted to the

Government as such. In the latter case the actual official who
will be functioning as a Tribunal is determined by the conduct
46
of Business Rules
As regards the composition, there is a case to case
variation amongst the various kinds of Tribunals. A Tribunal
may be composed of a single member or it may be a
multi-membered body. These members of the Tribunal may be
laymen with no formal qualification; or legal experts; or
specialists, or technical experts in a particular field; or a
combination of these. In matters regarding their appointment,
removal, tenure and other conditions of service, the Tribunals
are governed by the provisions of the special Act and/or the
rules, under which a particular Tribunal is constituted.
The jurisdictional limits of various Administrative
Tribunals differ widely, covering a broad spectrum of their
areas of operation. It includes small matters concerning a
single individual as well as subjects of nation-wide importance
47
affecting thousands at a time '. Most of the Tribunals are
engaged in the task of adjudicating upon disputes between
citizen and the State but, quite a few of these Tribunals are
concerned with the disputes between citizens inter-se in which
48
the State is not directly involved as a party
The methods of procedure and of giving decisions differ
from Tribunal to Tribunal. While in many cases Tribunal
46. See, Jaln.M.P. and Jaln.S.N., Principles of Administrative law (1986) 405-408.
47. For example the National Labour Tribunal.
48. For example the Rent Tribunals.
 74

conducts its proceedings in a highly informal manner following

only the minimal procedure; there are a few Tribunals which,

like Courts, have a detailed code of procedure with testimony

on oath and strict rules of evidence. In between there exists

various themes and models. Like-wise in giving their decisions

different Tribunals are guided by the considerations of policy

and law in varying proportions.

From the foregoing description of Tribunals, in very

broad terms, it becomes evident that the Tribunals are of

various kinds. Institutionally, there does not exist any sort

of hierarchical pattern of Administrative Tribunals parallel to

the Courts. This is so because they have been created in a

peacemeal manner as and when a necessity was felt. Hence the

diversity.

Owing to these complexities, of kind and number, an

attempt at classifying Administrative Tribunals is bound to

meet with little success. Moreover, it may not serve any

50
fruitful purpose^ . It was perhaps due to these difficulties

that the Committee on Administrative Tribunals, in U.K., 1957,

did not classify the Tribunals. Yet, some writers on the

subject have gone into this exercise with a varying degree of

success.

50. Robson.W.A. observes: "I have considered the possibility of classifying the Administra-
tive Tribunals described 1n Chapter 3, but have abandoned the attempt as unlikely to
produce results worth the trouble. The classification would have to be so elaborate as
to be almost useless and 1t would not succeed 1n reducing the complex phenomena to
scientific order", Justice and Administrative Law (1951) 633.
 75

As regards the Administrative Tribunals existing in

England fairly comprehensive analyses and classifications have

been made by Sir Carleton Allen and Professor J^F.Garner. The

former has categorised these bodies into fifteen broad

categories based upon the subject matter with which they deal.

These are: the social services; planning and housing;

agriculture; transport; industrial arbitration; national

service and claims arising from war; economic control;

education; the nationalised industries; miscellaneous

tribunals; special officers; inquiries; domestic tribunals;

51
trade associations; and advisory committees . A more precise

classification but, based on similar lines, has been made by

Professor Garner. He has grouped the various kinds of

tribunals under eight broad heads (on the basis of the subject

matter with which they deal): the control of land use; personal
welfare; transport; industry and employment; Immigration of
52 5"3
aliens; and domestic tribunals-^ . Some other writers , in

England and elsewhere, have also attempted to classify

tribunals and it would not serve much purpose to discuss and

examine each one of these classifications. The hard fact,

however, is that none of these classifications provide a fully

satisfactory scheme to categorise the various Administrative

Tribunals into different groups on a scientific basis. The

various classifications thus far attempted can be divided into

three broad categories:

TT. Administrative Jurisdiction (1956) Ch. I, pp.1-53.
52. Administrative Law (1974) Chapters VII and VIII, pp.193-273.
53. Friedman,W. ., Principles of Australian Administrative Law (1950) pp.87-95; Orr.G.S.,
Report on Administrative Justice 1n New Zealand (1964) 9-65.
 76

3.31 Classifications Based Upon the Subject-Matter

This is by far the most popular and commonly applied

method to classify tribunals. However, this scheme suffers from

certain defects and drawbacks. As Professor Garner observed

"owing to the great variety of subject-matter dealt with by

Administrative Tribunals, any classification according to

subject-matter is liable to be incomplete or otherwise to be

so general as to have no real significance"^ . Nevertheless,

the scheme may usefully be adopted to classify Administrative

Tribunals in India. On the basis of subject-matter the various

kinds of Administrative Tribunals may be grouped into the

following seven broad categories:

3.3H Tribunals in the field of service-matters

India has a vast network of services under the State to

run the affairs of the State. As such disputes and

controversies are bound to arise, frequently, in managing and

controlling this apparatus. Hence there exists a large number

of Administrative Tribunals in this field. The various

adjudicatory bodies that fall under this category include the

various administrative tribunals set-up under the statutes

enacted by the Centre or State Legislatures. At lower level, it

includes every Government official or body having legal

authority to take any disciplinary or other action against a

civil servant that, in any manner, affect his right

54. Supra note 52, at p.201.

 77

prejudicially. The Central Administrative Tribunal and State

Administrative Tribunals constituted under the recently enacted
Administrative Tribunals Act, 1985 are the main examples.

3.312 Tribunals in the field of trade, commerce and industrial

management and labour relations

One of the most important functions performed by a modern

welfare State is to regulate private activities in the field of
trade, commerce and industry, in the wider interests of public
health, safety, morals, etc. Accordingly, a large number of
laws have been passed dealing with various aspects of these
areas. Under these laws different kinds of Administrative
Tribunals operate at various levels. These include, an
anonymous functionary in a government department as well as a
full-fledged, largely autonomous tribunal, exclusively dealing
with the task of adjudication. Industrial tribunals and labour
courts functioning all over India are the most obvious examples
of administrative tribunals falling under this category.

3.313 Tribunals for election affairs

Elections are an essential part of the democratic life of
a country. A healthy democracy thrives on the free and fair
elections to its various representative bodies. In India,
which is the largest democracy of the world, the gigantic task
of superintendence, direction and control of matters relating
to elections to the Parliament, State Legislatures and to the
 78

office of 'President and Vice-President, exclusively vests in

an Election Commission consisting of a Chief Election
Commissioner and such number of other Election Commissioners as
the President may from time to time fix->->. Other statutory
officers who assist the Election Commission in election matters
are the Chief Electoral Officers, District Election Officers,
Electoral Registration Officers, Returning Officers and Polling
Officers. The persons holding these offices have their other
substantive posts under the centre or a State Government and
they are nominated by the Election Commission for discharging
their election duties.
56
The Election Commission acts as a Tribunal while
deciding any dispute arising at any stage of electoral
57
process . Its decision is final subject to an appeal to the
Supreme Court under Article 136 of the Constitution.
However, under section oOA^ of the Representation of
Peoples Act, 1951, read with Article 329(b) of the
Constitution, a High Court acting as a statutory body or
Tribunal can entertain a petition against the decision of the
Election Commission.
For the conduct of elections to the local bodies
different States have their own laws under which the task is
assigned
55.
to the various officials in the State administration.
Article 324 of the Constitution of India.
56. A.P.H.L. Vs. Sangma, AIR (1977) S.C. 2155 (Para 5 5 ) .
57. The various stages Include del1m1nat1on of constituencies, preparation of electoral
rolls, allotment of symbol, recognltlon/derecognltlon of a party, acceptance or
rejection of a nomination paper, actual conduct of poll, recording of votes, declaration
of result, cancellation of poll and ordering repoll, etc.

58. This clause was Inserted 1n the Act 1n 1965.

 79

In the discharge of these duties such officials exercise

powers, which are adjudicatory in nature, under diverse
circumstances.

3.31^ Tribunals in the field of revenue

Collection of revenue has always been an important
function of the State. This objective is achieved by the
imposition of various kinds of taxes, levies, duties, fees,
fines and land revenue. For the effective realisation of money
through these various means there has to be a big
administrative/revenue set-up. In the course of administration
of revenue affairs various kinds of decisions and
determinations are made by the administrative-cum-revenue
authorities. Further disputes, claims and controversies, which
are bound to arise quite often, are also invariably settled at
administrative level only. Hence, administrative tribunals of
diverse kinds abound in this field. These include an
administrative-cum-revenue officials, such as a tax inspector
or a Deputy Collector as well as the Tax Appellate Tribunal -
an autonomous body exclusively engaged in the task of
adjudication.

3.315 Compensation Tribunals

This category includes a large number of administrative
tribunals, operating at different levels, and which have been
created under the various central and State Legislations,
providing for the acquisition and requisition of private land
 80

for public purposes; land reforms and abolition of Zamindaris;

and the nationalisation of any trade or business activity.

Under this category also falls a large number of compensation

tribunals set-up under the Motor Vehicles Act, 1890 and the
y
Railways Act, I89O to determine accident claims.

3.316 Domestic Tribunals

Under this category falls certain less formal Tribunals

that may be set-up statutory or voluntarily under a contractual

relationship for the purpose of enforcing discipline and

regulating the affairs of a group of persons belonging to a

particular trade or profession; or to any sports or

recreational club or society.

Some of the examples of statutory domestic tribunals (the

other category of domestic tribunals do not, however, fall

within the scope of the definition of 'administrative tribunal'

given earlier in this chapter) that exist in India are:

(a) The Bar Council of India and the State Bar Councils

created under the Advocates Act, I96I;

(b) The Institute of Chartered Accountants of India

established under the Chartered Accounts Act, 19^9;

(c) The Medical Council of India, created under the Medical

Councils Act, 1956;

59. The Act has now been replaced by the Railway Act 1989 and also the Railways Claims
Tribunal Act, 1987.
 81

(d) The Council of Architecture created under the

Architectures Act, 1972; and

(e) The Dental Council of India, created under the Dentists

Act, 1948.

3.317 Miscellaneous Tribunals

The last residuary category includes a host of

adjudicatory authorities and bodies of diverse kinds, which do

not properly fall under any of the above-mentioned six

categories. Some of the main examples are: rent control

tribunals; adjudicatory powers of transport authorities; public

corporations; universities; boards; those dealing in town and

country planning; etc.

3.32 Classification Based Upon the Legal Status

Administrative Tribunals may be grouped into four broad

categories on the basis of their origin or legal status.

3.321 Administrative Tribunals set-up under Constitutional

provision
Administrative Tribunals constituted directly under the

provisions of the Constitution, include, inter alia, the

Election Commission, set-up under Article 324, and the Andhra

Pradesh Administrative Tribunal established under Article 371-D

to decide disputes pertaining to service matters of the State

Civil Servants ; etc.

60. The latter mentioned Tribunal has now been abolished w.e.f. 1.11.1989 and 1n Its place a
new Administrative Tribunal has been constituted under the provisions of Administrative
Tribunals Act, 1985.
 82

3-322 Statutory Tribunals

Administrative Tribunals falling under this broad
category may further be sub-divided into two groups.

(a) Administrative Tribunals constituted under a Statute

enacted under any special provision in the Constitution to that
effect. The main distinguishing feature of such tribunals is
that the law, under which they are constituted may exclude
power of judicial review by the High Court. Some of the main
examples are:

(i) The Central Administrative Tribunal and the State

.Administrative Tribunals established under the provisions
of Administrative Tribunals Act, 1985;
(ii) Powers of the High Court, acting as a statutory body
while deciding any election petition in pursuance of the
powers conferred by section 80A of Representation of
Peoples Act, 1951;
(iii) A River Board constituted under the provisions of Water
Disputes Act, 1956; etc.

(b) Other statutory Tribunals

This includes a large number of administrative tribunals
constituted directly under any centre or State Legislation made
by the concerned legislature in the exercise of its normal
legislative powers.
 83

3-323 Administrative Tribunals constituted under any statutory

instrument

Administrative Tribunals, which have been created and are

functioning as such under the provision of any rule and

regulation, made by any administrative authority, fall under

this category.

3.324 Government authorised to act as a Tribunal

Sometimes an Act confers adjudicatory powers on the

centre or a State Government as such. In that case the official

who is to act and function as such tribunal is determined by

the Conduct of Business Rules.

3.33 Classification on the Basis of Nature and Extent of

Judicial Control

Administrative Tribunals may be grouped into three broad

categories on the basis of nature and extent of Judicial

control exercisable over such bodies.

3.331 Administrative Tribunals subject to Judicial control by

the Supreme Court only

This category includes those tribunals whose decisions

can be challenged only before the Supreme Court under some

provision of the Constitution. Administrative tribunals, set-up
directly or indirectly under some special provision in the
constituted to that effect, fall in this category. In such

cases the Constitution may either expressly bar the

 84

jurisdiction of all other Courts, or it may authorise the

legislature to exclude courts' jurisdiction over them. Some of
the major examples of tribunals falling under this category
are: the Central Administrative Tribunal and the State
Administrative Tribunals established under the provisions of
the Administrative Tribunals Act, 19^5; the River Board
constituted under the provisions of Water Disputes Act, 1956;
the High Court acting as a tribunal while exercising its powers
under section 80A and 8l of the Representation of Peoples Act,
1951 to entertain any election petition; etc.

3.332 Administrative Tribunals subject to the judicial control

by a High Court and the Supreme Court only
This category would include every such administrative
tribunal in respect of which the higher judiciary, comprising
of the High Courts and the Supreme Court, can only exercise its
power of judicial control. The jurisdiction of the lower courts
to entertain any civil suit against these tribunals is either
expressly or impliedly excluded under the relevant law which
creates them. Generally speaking, a law providing for the
establishment of an administrative tribunal with the
requirement of including a judicial member as an adjudicator,
invariably, excludes the jurisdiction of lower courts to
challenge their decisions. In such cases, an aggrieved party
can approach a High Court or the Supreme Court either under the
provisions of the Constitution or under some provisioon of

61. Such as, under Article 32, 136,226 and 227.

 85

the law by which they have been created. The statutory

provisions in this regard do not follow any consistent

patterns. Yet, some of the examples of statutory provisions

providing for judicial control are as under:

(a) Reference to the High Court on a question of law

(b) Appeal to the High Court in cases involving substantial

question of law .

(c) Appeal to the High Court if the amount in dispute exceeds

64
a specified limit
(d) Direct appeal to the Supreme Court under the relevant
«. * +
statutory * *
provisions 64A

3*333 Administrative Tribunals subject to judicial review by

all courts

The last category includes all those adjudicatory bodies

and authorities in respect of whom judicial review is no bar at

any stage. Hence the decisions and determinations of these

bodies may be challenged like any administrative action, either

by way of a civil suit in the lower court or through a writ

Petition in the High Court or the Supreme Court.

3.4 Doctrinal Objections

The growth and development of administrative tribunals

has, from time to time, been influenced by the twin

Constitutional doctrines of the rule of law and the separation

62. Income Tax Appellate Tribunal.

63. The Workmen's Compensation Commissioner; The Employees Insurance Court.
64. Motor Accident Claims Tribunals.
64A. Monopolies and Restrictive Trade Practices Commission.
 86

of powers. During the initial phase of their development,

administrative tribunals had to face tough challenge from the
various votaries of these doctrines, who questioned the
validity itself of these new kinds of adjudicatory agencies.
However, with the passage of time, as the creation of the
different kinds of administrative tribunals, under diverse
situations, proved to be indispensable in every system of
Government, the doctrines of rule of law and separation of
powers had to be given new orientation. In this backdrop, the
meaning, scope and relevance of these doctrines may be
examined.

3.4l Rule of Law

The modern concept of "rule of law" has its origin in
the obscure past. The idea that law must rule; the ruler as
well as the governed should be subject to law has, in one form
or the other, prevailed in all ages and in all forms of
Government -\ Credit must however, go to Professor A.V. Dicey
who, for the first time, ventured to give it a concrete form
and constitutional status. Writing in 1885 he observed that
"rule of law is a characteristics of English Constitution" and
it includes three meanings :

65. For the Old History of the Concept, See, O.Hood Phillips and Paul Jackson,Constitutional
and Administrative Law (1978) 3 5 .
66. Introduction to the Study of the Law of the Constitution (1915) 198-99.
 87

(i) The absolute supremacy or predominance of regular law as

• opposed to the influence of arbitrary power, and excludes
the existence of arbitratlness, of prerogative, or even
of wide discretionary authority on the part of the
Government.

(ii) Equality before the law, or the equal subjection of all

classes to the ordinary law of the land administered by
the ordinary Law Courts.

(iii) The law of the Constitution is not the source but the
consequence of the rights of individuals, as defined and
enforced by the Courts.

In essence, Dicey was concerned with the protection of

rights and liberties of the people from the encroachment by the
executive. But, in order to attain this purpose, he invented,
directly or indirectly, a surprising hypothesis that the system
of administrative adjudication is incompatible with the rule of
law, relying exclusively on the remedies afforded by the
ordinary courts of law '. In his enthusiasm to expound his
hypothesis Dicey denounced the French Administrative Courts as
mere "official bodies" meant to protect and favour the
Government officials as against private citizens. He viewed
this system as the negation of rule of law. He even went to the

67. J a i n , P . C , Administrative Adjudication: A Comparative Study of France,U.K. ,U .S. A. and

India (1981) 159.
 88

extent of denying the very existence of 'droit administrartif'

(administrative law) in England.
(TO

It is said that Dicey not only mis-interpreted and

misconceived the French system of droit administratlf and
administrative courts but, also failed to take notice of
certain special courts and administrative adjudicatory bodies
that were in existence even at the time when he first wrote his
thesis .
In the context of increasing duties of a modern welfare
State, Dicey was forced to acknowledge the necessity of
conferring decision-making powers on administrative authorities™
Nevertheless he observed that "such transference of authority
saps the foundation of that rule of law which has been for
71
generations a leading feature of the English Constitution"1 .
This obstinacy on the part of Professor Dicey caused
great harm to the growth and development of the system of
administrative tribunals in England. The long controversy over
the desirability and validity of administrative tribunals was
finally settled when the Franks Committee acknowledged the
inevitability of administrative adjudication in a modern
72
welfare State and thus gave it a stamp of approval' . "The
rule of law", according to the Committee Report, "stands for
the view that decisions should be made by the application of
68. See, Wade.H.W.R., Administrative Law (1981) 159.
69. For Instance, the ecclesiastical and admirallty courts, and the Administrative Tribunals
that functioned under the Poor Law Amendment Act, 1834, the Public Health Act, 1875,etc.
70. In the 8th edition of his book Dicey recognised the growth of administrative bodies, 1n
England, with judicial and q u a s i - j u d l d a 1 powers but, regarded 1t an "Invasion of the
Rule of Law", Supra note 66, at p. xxxix.
71. The Development of Administrative Law In England (1915):31 L.Q.Rev. 148-153, at p.150.
72. See, Report of the Committee on Administrative Tribunals and Enquiries, (1957) 8-9.
 89

known principles or the laws. In general such decisions will

be predictable and the citizen will know where he is. On the

73
other hand there is what is arbitrary" .
Since India is a country with common law traditions it becomes

necessary to examine the relevance and validity of rule of law,

particularly in the context of the tremendous growth of

administrative tribunals that has taken place in the country

after independence and the adoption of the new Constitution for

the Democratic Republic.

It may be observed, at the outset, that unlike England,

India has a written Constitution which constitutes the supreme

law-of the land. It defines the powers as well as limitations

on the exercise of these powers by the various organs of the

State. Hence, Dicean's views about rule of law as forming an

essential characteristic of English Constitution would not be

tenable in the Indian context unless, the concept is reflected,

in some form or the other, in our constitutional document. For,

as rightly observed by Mathew J. "to be a basic structure, rule

of law must be a terrestrial concept having its habitat within

74
the four corners of the Constitution"1 .

The term "rule of law", as such, does not find any

express mention in any part of the Constitution. Therefore, the

various meanings given by Professor Dicey to the term have to

be examined independently, one by one, with a view to find out

whether these are, in any form included in our constitution.

73. Ibid., at p.6.
74. Smt. Indira Nehru Gandhi Vs. Raj Narayan, AIR 1975 S.C. 2299, at p.2385.
 90

Dicean first meaning of rule of law, namely, "the absolute

supremacy or predominance of regular law as opposed to the
influence of arbitrary power, of prerogative, even of wide
discretionary authority on the part of the Government", has
75
been modified in the latter edition of his book' . That is
because it was realised that it is not necessary that where law
ends tyranny should begin. As K.C.Davis says, "where the law
ends discretion begins and the exercise of discretion may mean
either beneficience or tyranny; either justice or injustice;
76
either reasonableness or arbitrariness"' .
While commenting upon this aspect of rule of law the
Supreme Court of India observed that rule of law requires the
pervasiveness of law throughout the whole range of Government
in the sense of excluding arbitrary official action in any
sphere; it means that decision should be made by the
application of known principles or rules and, in general, such
decisions should be predictable and the citizen should known
77
where he is .
This (Dicean) exposition of rule of law, observes
Mathew J. , is, in a sense, only the aspiration for an ideal
and it is not based on any down-to-earth analysis of practical
problems with which a modern Government is confronted.
Conferment of discretions on administrative authorities in the
exercise of administrative as well as judicial functions is a
75. Supra note 66, at pp.xxxvl 1-x lv111.
76. Discretionary Justice: A Preliminary Enquiry (1969) 3.
77. Ja1s1nghan1 Vs. Union of India, AIR 1967 S.C. 1427, at p.1434.
78. Supra note 74, at p.2384.
 91

practical necessity in a modern state of action and, ipso

facto, this does not amount to the violation of any provision
of the Constitution. Thus, this meaning of rule of law is more
in the nature of a moral obligaton of the State than a legal
norm imposing any positive duty, or acting as a limitation, on
any organ of the State.

The second meaning which Dicey gave to rule of law

implies equality before the law or equal subjection of all
classes of people to the ordinary law of the land as
administered by the ordinary courts. This meaning has a more
direct bearing on the modern phenomenon of administrative
adjudication or tribunals.

It may be observed that this aspect of rule of law finds

expression in the form of the provisions of Articles 14 to 18
of our Constitution dealing with the Fundamental Right to
Equality. The nature and scope of these provisions of the
Constitution, as Interpreted by the courts, determine,
accordingly, the meaning and scope of rule of law as a legal
concept, in the Indian context.
The courts in India have consistently taken the view that
the English doctrine of rule of law, as embodied in Article 14
of the Constitution, does not lay down the principle of
equality in absolute terms but, admits of reasonable
classification which, in essence, means equality of treatment
among equals . Article 14 ensures equality among equals; its

79. The true meaning and scope of Article 14 has been explained 1n several decisions of the
Supreme Court; the early decisions were re-examined and their effect summarised by
Das C.J. 1n R.K.Dalmla Vs. Justice Tendolkar, AIR 1958 S.C. 538.
 92

aim is to protect persons similarly placed against

discriminatory treatment. But, it does not operate against

rational classification. It, therefore, follows that a law need

not necessarily have a universal application but, it must

apply evenly and uniformly to all persons placed in similar

fin
circumstances or belonging to the same class . In the same

manner, it is not necessary, within the meaning of this

Article, that all laws should be administered by the ordinary

courts only to the exclusion of any other adjudicatory agency.

It has been held by the courts that the establishment of

special courts or tribunals, with special procedure, under the

special laws to try certain cases of special nature, does not,

per se, amount to the violation of the general rule of

equality, provided of course, the relevant law contains

sufficient guidelines or policy to enable the administration to

properly identify the cases or persons to be tried in these

special courts or tribunals

Thus,there is no violation of the principle of equality

or of rule of law if administrative authorities or tribunals

are empowered to exercise adjudicatory functions in

administering the laws. The courts, in India, do not enjoy a

monopolistic role in this sphere, as advocated by Dicey in the

context of English system. However, the real importance of

Article 14, in this regard, lies in checking arbitrariness on

80. For details, see, Jain,M.P., Constitution of India (1987) 471-496.

81. See, e.g., Kathl Rannlng Rawat Vs. Saurashtra, AIR 1952 S.C. 123.
 93

the .part of these bodies. As the Supreme Court has observed in

Op

Royappa's case , "from a posltivistic point of view, equality

is antithetic to arbitrariness. In fact equality and

arbitrariness are sworn enemies; one belongs to the rule of law

in a republic while the other to the whim and caprice of an

absolute monarch".

In order to ensure against arbitrariness and, thus, to

maintain the rule of law, the Courts, in India, have not only

mandated against conferment of unguided, unregulated and

unchecked powers but, have also emphasised upon the fairness in

procedure. They have insisted upon the requirement to follow

the principles of natural justice - the minimum essential norms

of fair procedure, not only in quasi-judicial proceedings but,

even in such administrative proceedings as entail civil

Oo

consequences . As such, any decision made or action taken by a

public authority, in derogation of the principles of natural

justice, would be termed as arbitrary and per-se illegal, if

such decision/action affects, adversely any right or interest

of an individual. In this manner, we can say that rule of law

has both, positive as well as negative contents; it not only

puts contraints on the conferment and exercise of arbitrary

powers but, also imposes an affirmative duty of fairness in

every governmental action.

82. E.P.Royappa Vs. Tamil Nadu, AIR 1974 S.C. 555, at p.583.
83. See, e.g., A.K.Kalrapak V s . Union of India, AIR 1970 S.C. 150; D.F.O. Kherl V s . Ram
Sanehl Singh, AIR 1973 S.C. 205; Haneka Gandhi Vs. Union of India, AIR 1978 S.C.597
 94

In Sambamurthy Vs. State of Andhra Pradesh , the Supreme

Court added another dimension to the rule of law while
declaring the provision of Article 371-D(5) of the Constitution
as invalid. This provision had authorised the Government of
Andhra Pradesh to nullify any decision of the State
Administrative Tribunal, set up under clause (3) of Article
371-D. It was categorically stated by the Court that 'it is a
basic principle of the rule of law that the exercise of power
by the executive or any other authority must not only be
conditioned by the Constitution but must also be in accordance
with law and the power of judicial review is conferred by the
Constitution with a view to ensuring that the law is observed.
It is through the power of judicial review conferred on an
independent institutional authority that the rule of law is
maintained and if this power of judicial review can be set at
naught by the executive by overriding the decision given
against it, it would sound the death knell of the rule of
law' .
While expressing the similar sentiments, the Law
Commission of India has also observed that -
"Our Constitution cannot function and no nation can march along the true
democratic way of life without a true and continuous realization of the
86
Importance of the rule of law and of judicial review".

84. AIR 1987 S.C. 663.

85. Ibid., at p.667.
86. XIV Report on Reform of Judicial Administration, Vol.11 (1958) 671.
 95

Thus, judicial review of every governmental action

assumes significance in every system of Government; it is an
essential safeguard against arbitrary Government power.
Professor Bernard Schwartz, while quotating a French
Constitional lawyer, has observed:
"For a country to live under the rule of law, 1t is absolutely Indispensable
that 1t have a High Court, with all possible safeguards of Independence,
Impartiality and competence, before whom can be brought an action to set-
aside any act challenged as contrary to law" 8 '

The Constitution of India makes express provisions

empowering the Supreme Court and the High Courts to exercise
their power of control and supervision over all public
governmental authorities to ensure that they operate within the
oo
bounds of their authority and in a legal manner . These powers
of the superior courts cannot, in any manner, be curtailed or
restricted by an ordinary legislation. However, an
administrative tribunal constituted under the provisions of
Articles 323-A or 323B nof the Constitution enjoys a status
equivalent to that of a High Court and hence such a tribunal
may not be amenable to the review jurisdiction of the High
Court, but it is, undoubtedly, amendable to the ultimate
jurisdiction of the Supreme Court exercisable under Article 32
and 136 of the Constitution.
It can, finally be said that the ultimate dominance of
the ordinary courts (especially the Higher Courts) over all
administrative tribunals, not only helps in keeping them in
line but, it also, to some extent, justifies Dicean thesis of
supremacy of law as enforced in the ultimate analysis, by the
ordinary courts of the land. As Dicey himself, at a later
stage, observed:
"The "act that the ordinary law courts can deal with any actual and probable
breach of the law committed by any servant of the Crown still preserves
(the) rule of law "89

87 , A Commentary on the Constitution of the United States, Part-I - The Powers of

Government (1963) 27, quoting the observations of Dugult, Locus de droit public
general (1926) 2 8 0 .
88. See Articles 32, 136, 226 and 227.
89. The Development of Administrative Law in England 1915:31 L.Q.Rev. 148-153, 152.
 96

3.^2 Separation of Powers

Though the doctrine of separation of powers is traceable
90
to Aristotle^ but, Moutesquieu's elaboration of it, based upon
qi
the study of Locke's writings^ and an imperfect understanding
92
of the eighteenth century English Constitution^ , gave
prominence to the doctrine. Montesquieu was concerned with the
preservation of political liberty and, therefore, asserted:
"Political liberty 1s to be found only when there 1s no abuse of power. But
constant experience shows us that every man Invested with power Is liable to
abuse 1t.... To prevent this abuse 1t 1s necessary from the nature of things
that one power should be check on another... when the legislative and
executive powers are united in the same person or body there can be no
liberty.... Again there 1s no liberty 1f the judicial power is not
separated from the legislative and the executive.... There would be an end
of everything 1f the same person or body were to exercise all three
93
powers";

Montesquieu's enunciation of the doctrine has generally

been construed to mean a functional as well as personnel
separation amongst the three organs of the Government, namely,
the legislature, executive and the judiciary. Though it is
practically impossible to apply the doctrine in its strict
sense, signifying a complete separation of governmental powers
into the three water light compartments, to any system of
Government yet, the doctrine has greatly influenced the makers
of most of the modern constitutions of the world.

90. Politics (Jowett's Translation) (1953).

91. Second Treatise of Civil Government (1690) Chapters 12-13.
92. See, Strong,C.F., Modern Political Constitutions (1966) 235-6; Allen,C.K., Law and
Orders (1956) 12.
93. L'Esprit de Lois (1748) Ch. xi, pp.3-6, cited in O.Hood Phillips. Constitutional and
Administrative Law (1973) 12.
 97

.The Constitution of the United States of America goes

farther than any other in applying the doctrine of separation
of powers. The first three Articles of the U.S.Constitution,
in seriatum, vest the legislative, executive and judicial
powers in the Congress; President, and the Supreme Court and
other federal courts, respectively. Structurally also the three
organs have been kept separate. President and his cabinet are
not members of the Congress; Congress cannot exercise its
control over the executive; and the Supreme Court has not been
expressly given the power of judicial review of legislative
and administrative acts. However, the separation of powers is
by no means complete and there are a few instances of
overlapping of powers^ .
• The United States Supreme Court has always acknowledged
the fundamental nature of the separation of powers and it has
shown great concern for the doctrine whenever there has been
any attempt by one organ to usurp the powers that essentially
95
belong to another. In Myers Vs. United States^ Congress'
attempt to arrogate to itself the (executive) powers to remove
certain executive officials rendered the statute in question
96
invalid. Similarly, in United States Vs. Brown^ the Supreme
Court struck down a law under which specified persons (Members
of the communist party) were penalised for their alleged
94. For example, the President exercises legislative powers through his right to send
messages to Congress and the-right to veto; the Congress has judicial powers of trying
Impeachments; the Senate participates 1n executive powers of treaty making and making
certain appointments; the Supreme Court exercises Its control over the executive and the
Legislature through judicial review, etc.
95. 272, U.S. 52 (1926).
96. 381 U.S. 437 (1965).
 98

involvement in engineering and participating in politically-

motivated strikes. The Court held it to be a case of usurption

of the function of the judiciary.

The U.S.Supreme Court has also invoked the principle of

separation in monitoring the President's powers. In the famous

1952 seizure cases, the Court held that President Truman was

asserting legislative and not executive powers when, to avert

an industry-wide strike during the Korean conflict, he directed

the secretary of commerce to take temporary possession of, and

operate most of the nations' steel mills; the Court

invalidated the President's order"'.

The doctrine of separation of powers has, however, been

greatly influenced, in modern times, in the wake of the

prolific growth of administrative agencies endowed with the

triple functions of legislation, administration and

adjudication. Despite separation of powers pedantry, there has

been a consistent delegation of powers of decision-making and

law-making to administrative agencies. The plain fact is that

the forces that have brought about the creation of these

administrative agencies have greatly diluted the classical

principal of separation. Yet, the doctrine has not become

redundant or irrelevant. It has been said about the doctrine

that its object is the preservation of political safeguards

against the capricious exercise of power; the great end of the

theory is to prevent absolutism by dispersing the centres of

97. youngstown Sheet & Tube Co. Vs. Sawyer, 343 U.S. 579 (1952).
 99

authority^ . For, as rightly observed by Davis K.C. the

"dangers of tyranny or injustice lurks in unchecked power, not

QQ

in blended power"-' .

The doctrine of separation of powers has not been

accorded a constitutional status in India. Though the

constitution of India expressly vests executive powers of the

Union and of a State in the President and the Governor,

respectively, but there are no corresponding provisions vesting

the legislative and judicial power in any particular organ.

However, by applying the doctrines of constitutional limitation

and trust, the essence of the doctrine of separation can be

said to exist in our Constitution . For Instance, a thorough

examination of the various provisions of the Constitution,

dealing with legislative business and procedure makes it

abundantly clear that subject to certain exceptions, as are

covered under Articles 123 and 213, the Constitution intends

the law-making powers to be exercised by the Legislature,

exclusively . Same can be said as regards the judicial powers

which are primarily exercisable by the courts. The

Constitution recognises a hierarchy of courts and to their

adjudication are normally entrusted all disputes between

citizens and citizens as well as between the citizens and the

c , . 102
State

98. Jaffe, and Nathanson, Administrative Law: Cases and Materials (1961) 3 8 .
99. Administrative Law and Government (1975) 5 4 .
100. In re Delhi Law Act, 1912 AIR 1951 S.C. 3 3 2 .
101. Ibid, at p.346; A.C. Comapnies Vs. P.N.Sharma, AIR 1965 S.C. 1595.
102. A.C. Companies case, at p. 1599.
 100

There, however, exists a lot of overlapping functional as

well as personnel, in the scheme of our Constitution. The

President of India in whom the executive authority is vested

exercises legislative powers by promulgating ordinances. Also

no bill of Parliament can become an Act unless assented to by

the President. The Council of Ministers forms a part of the

Legislature and is answerable to it. The Legislature, besides

performing legislative functions also exercises judicial

functions in trying impeachment of the President and the removal

of Judges of higher courts. The judiciary exercises its

control over the other two organs through its power of judicial

review. These are just a few illustrative examples and not an

exhaustive list to demonstrate the point.

It can, therefore, be said that the Indian Constitution

does not recognise separation of powers in its absolute

rigidity. There is a separation of powers in a broad sense

only. The functions of different branches of Government have

been sufficiently differentiated and the Constitution does not

contemplate assumption by one organ of the State of functions

that essentially belong to another. In the words of

Chandrachud, J. (as he then was) the principle of separation of

powers means no more than that one department should not

103
possess the whole power of another ; the there organs must

act in concert and not that their respective functions should

not ever touch one another. Thus construed, the principle of

separation of powers can be regarded as a principle of mutual

restraint.
103. Smt. Indira Nehru Gandhi Vs. Raj Narayan AIR 1975 S.C. 2299, at p.2381.
 101

• • As such, the doctrine of separation of power has never

caused any serious challenge to the growth of administrative

process and the rise and proliferation of administrative

tribunals in India.