Administrative Law

Class Note 1

Shuvro Prosun Sarker

B.A. LL.B (Calcutta), LL.M (NUJS), PhD Candidate (NUJS)
Assistant Professor
School of Law, KIIT University

Disclaimer: This class note is skeletal in nature and comprising only

points of discussions. So this note should not be construed as sample
answers or model answers for the purpose of any examination.

Shuvro Prosun Sarker, 2014.

42nd Constitutional Amendment (In General):

Enacted During the Emergency in 1975.

It is regarded as the most controversial
constitutional amendment of Indian history.
Many people name this amendment as the
Constitution of Indira

Changes done through this amendment:

The Amendment was meant to enhance

enormously the strength of the Government.
Gave preponderance to the Directive Principles
of State Policy over the Fundamental Rights.

Established the supremacy of Parliament and

curtailed the powers of Judiciary.

Specific Changes:

1. Preamble
The characterization of India as Sovereign
Democratic Republic
has been changed to
Sovereign, Socialist, Secular & Democratic
Republic.

2. Parliament and State

The life of the Lok Sabha and State Legislative

Assemblies was extended from 5 to 6 years.
It amended Article 74 to state explicitly that the
President shall act in accordance with the
advice of the Council of Ministers in discharge
of his duty .

3. Judiciary

It inserted Article 32A in order to deny the

Supreme Court the power to consider the
Constitutional validity of a State law.
Another new provision, Article 131A, gave the
Supreme Court an exclusive jurisdiction to
determine question relating to the Constitutional
validity of a central law.

Under Article 144A the minimum number of

judges of the Supreme Court to decide a
question of a Constitutional validity of a law was
fixed as at least seven and further, this required
two-thirds majority of the judges sitting declare
law as unconstitutional.
While the power of the High Court to enforce
fundamental rights remained untouched,
several restrictions were imposed on its power
to issue writs for other purposes.

4. Federalism

The Act added Article 257A in the Constitution to

enable the Centre to deploy any armed force of
the union, or any other force under its control
for dealing with any grave situation of law and
order in any State.

5. Fundamental Rights and Directive Principles

A major change that was made by 42nd

Constitutional Amendment was to give primacy
to all directive principles over the fundamental
right contained in Articles 14, 19 or 21.
The 42nd Constitutional Amendment added a few
more directive principles free legal aid,
participation of workers in management of
industries, protection for environment and
protection of forests and wildlife of the country .

6. Fundamental Duties
The 42nd Amendment Act inserted Article 51-A
to create a new part called IV-A in the
Constitution, which prescribed the
fundamental duties to the citizens.

7. Emergency

Prior to 42nd Amendment Act, the President

could declare emergency under Article 352
throughout the country and not in a part of
the country alone. The Act authorised the
President to proclaim emergency in any part
of the country.

8. Administrative Tribunals

Article 323A and 323B were inserted in the

Constitution to constitute Administrative
Tribunals.
Under Article 323B enabled the legislature to set
up tribunals and to exclude the jurisdiction of
High Courts under Article 226 or Article 227.

Sampat Kumar vs. Union of India

AIR 1987 SC 386
Under Article 323A parliament enacted the
Administrative Tribunals Act, 1985.

This Act by Section 28 excluded the power of

High Courts to exercise judicial review in
service matters under Article 226 and 227.
The issue raised in this case was with regard to
the validity of this Act.

Tribunal is a substitute of the High Court and is

entitled to exercise the powers thereof.
.Ranganath Mishra, J.
The impugned Act excluding the Jurisdiction of the
High Courts and vesting such jurisdiction in the
Administrative Tribunal can pass the test of
constitutionality
P N Bhagwati, C.J.

Thus, Supreme Court upheld the validity of the Act.

Post Sampat Kumar:

Administrative Tribunal fails toFunctioning was not satisfactory. Lacked

competence, objectivity and judicial approach.
Not successful in creating an effective alternative
mechanism for service matters.
Arrears Committee (1989-90) criticized the
tribunalization of justice.

R. K. Jain vs. Union of India

(1993) 4 SCC 119

Supreme Court expressed anguish on working of

the tribunals. SC expressed that the sole remedy
of judicial review under Article 136 was
ineffective and suggested to form an expert
body to consider whether an appeal to a two
judge bench of High Court can be given from the
orders of such tribunals.

L. Chandra Kumar vs. Union of India

(1995) 1 SCC 400
Expressed that the Sampat Kumar Judgment
should be reconsidered by a larger bench of the
High Court.

Upholding Constitution, independence of

judiciary, Judicial review as a basic feature of the
Constitution.

Seven-member constitutional bench of the supreme

court has unanimously struck down clause 2(d) of
Article 323A and clause 3(d) of Art. 323B which
provided for the exclusion of the jurisdiction of the
high courts under articles 226 and 227 and the
Supreme Court under article 32 of the constitution
as unconstitutional and invalid as they damage the
power of judicial review which is the basic structure
of the constitution.
Directions of administrative tribunals will be subject to
the scrutiny of Division Bench of concerned High
Court.

Defining Tribunal
No precise or scientific definition.
Durga Shankar Mehta v. Raghuraj Singh
AIR 1954 SC 520
It is now well settled by the majority decision of this
Court in the case of Bharat Bank Ltd. v. Employees of
the Bharat Bank Ltd. that the expression
"Tribunal" as used in article 136 does not mean the
same thing as "Court" but includes, within its ambit,
all adjudicating bodies, provided they are
constituted by the State and are invested with
judicial as distinguished from purely administrative
or executive functions.

Test for Determination of Tribunal

1.
2.
3.
4.

It is an adjudicating authority
Other than Court
Vested with Judicial Power
Judicial power is vested under Statute.

See Jaswant Sugar Mills Limited vs. Lakshmi Chand

AIR 1963 SCC 677, 685

Growth of Tribunals

Increasing governmental functions in socioeconomic contexts along with the failure of

ordinary Courts of Law to provide expeditious
justice is the principle reason behind
establishment of administrative tribunals.
1. Traditional judicial system was inadequate to
decide and settle all disputes requiring
resolution.

2. Can avoid technicalities of rules and evidence.

3. Can take preventive actions.

4. Use of discretion in good faith and.
5. Speedy decision, low cost, understanding social
context.

Characteristics of Administrative Tribunals

The main characteristics of Administrative

Tribunals are as follows:
1. Administrative Tribunals is the creation of a
statute.
2. An Administrative Tribunals is vested in the
judicial power of the State and thereby perform
quasi-judicial functions as distinguished form
pure administrative functions.

3. Administrative Tribunals is bound to act

judicially and follow the principles of natural
justice.
4. It has some of the trapping of a court and are
required to act openly, fairly and impartially.

5. An administrative Tribunal is not bound by the

strict rules of procedure and evidence
prescribed by the civil procedure.

6. The writs of certiorari and prohibition are

available against the decisions of administrative
tribunals.
7. Administrative tribunals are not subject to
administrative interference in the discharge of
their judicial or quasi-judicial functions.
8. Most of the tribunals are not concerned
exclusively with the cases in which Govt is a
party.

9. Administrative tribunals have to record findings

of fact and then to apply the law objectively.
10. Administrative tribunals can summon
witnesses, administer oath, can compel
production of documents, etc.

JURISDICTION, POWERS AND AUTHORITY

One of the main features of the Indian

Constitution is judicial review. There is a
hierarchy of courts for the enforcement of legal
and constitutional rights. One can appeal
against the decision of one court to another, like
from District Court to the High Court and then
finally to the Supreme Court. But there is no
such hierarchy of Administrative Tribunals and
regarding adjudication of service matters, one
would have a remedy only before one of the
Tribunals.

This is in contrast to the French system of

administrative courts, where there is a hierarchy
of administrative courts and one can appeal from
one administrative court to another. But in India,
with regard to decisions of the Tribunals, one
cannot appeal to an Appellate Tribunal. Though
Supreme Court under Article 136, has jurisdiction
over the decisions of the Tribunals, as a matter of
right, no person can appeal to the Supreme
Court. It is discretionary with the Supreme Court
to grant or not to grant special leave to appeal.

The Administrative Tribunals have the authority to

issue writs. In disposing of the cases, the
Tribunal observes the canons, principles and
norms of natural justice. The CAT Act provides
that a Tribunal shall not be bound by the
procedure laid down in the Code of Civil
Procedure 1908, but shall be guided by the
principles of natural justice. The Tribunal shall
have power to regulate its own procedure
including the fixing of the place and times of its
enquiry and deciding whether to sit in public of
private.

A Tribunal has the same jurisdiction, powers and

authority, as those exercised by the High Court,
in respect of Contempt of itself that is, punish
for contempt, and for the purpose, the
provisions of the contempt of Courts Act 1971
have been made applicable. This helps the
Tribunals in ensuring that they are taken
seriously and their orders are not ignored.

Rules of Procedure

1. Subject to statutory requirements tribunals

have powers to regulate their own procedure.
2. They have powers under CPC, 1908 in respect
of summoning witnesses, attendance,
discovery, inspection, production of
documents, etc.
3. Proceedings of tribunals are deemed to be
judicial as per Sections 193, 195 and 228 of IPC
and 345 and 346 of CrPC.

4. Technical rules of evidence do not apply to their

proceedings and they can rely on hearsay
evidence. See Dhakeshwari Cotton Mills vs. CIT
(AIR 1955 SC 65), State of Mysore vs.
Shivabasappa (AIR 1963 SC 375).

5. Tribunals can not decide cases without

evidence on record or can act upon what is not
evidence or on a document which is not
genuine. See Bareilly Electricity Co. vs. Workmen
(AIR 1972 SC 330).

6. Recording of reasons in support of the order

is considered to be a part of natural justice,
and tribunal is bound to record reasons in
support of orders passed by it. See M.P.
Industries vs. Union of India (AIR 1966 SC
671).
7. No appeal, revision or reference is
maintainable against the order of a tribunal if
such right is given by the constituting Statute.
But this does not affect the power of judicial
review of High Court and Supreme Court.

Finally

Tribunal has to1.

2.
3.
4.
5.

Act within its jurisdiction.

Orders should not be arbitrary or mala fide.
Observe the principles of natural justice.
Order should not be ultra vires.
Should be based on evidence and proper
consideration.

Lord Justice Denning observed in R vs. Medial

Appeal Tribunal, (1957) 1 All ER 796, 801

If tribunals were to be at liberty to exceed their

jurisdiction without any check by the courts, the
rule of law would be at an end.