Administrative Action

administrative action

In the 21st century various functions are performed by administrative entities so much so that the administrative process cuts across the traditional bounds of classification and combines into one the powers exercised by all the organs, i.e. legislature, executive, judiciary. It’s evident that a wide variety of activities fall within the sphere of ‘administrative action’ and that even administrative authority doesn’t restrict to courts and legislative bodies of the country. Residuary functions of administrative bodies may themselves partake themselves of the legislative or judicial quality.[i]  The consideration that arises is whether the function performed by executive authorities is purely administrative, quasi-judicial or quasi-legislative in nature, since there’s no precise or scientific test to distinguish one from another. 

Classification is essential and inevitable as many consequences flow from it, e.g. if an executive authority exercises judicial or quasi-judicial functions it must confirm with the principles of natural justice or amenable to certiorari or prohibition[ii] but if it’s an administrative, legislative or quasi-legislative function, that’s not the case.[iii] It is therefore imperative to determine what type of function the administrative authority performs.

Classification of administrative action

Classification of administrative action is necessary to determine the scope of effect of judicial and legislative powers on administrative actions, such as judicial review of administrative actions is less restricted as compared to legislative action; mandamus cannot be issued against an executive body with respect to its legislative actions, etc.  The general sentiment amongst legal writers and lawyers is that any attempt made at classifying administrative law is not merely impossible but also redundant. Even a student of administrative law is made to delve into this classification since there is a complex amalgamation of the three wings of the government and projection of one wing on another.

Broadly speaking, administrative action can be classified into three groups:[iv]

1. Quasi-legislative or rule-making action

2. Quasi-judicial action or rule-decision action

3. Purely administrative action or rule application action

Let’s understand this classification in detail:

Quasi-legislative action:

Legislature is the law-making branch of the State. Unlike constitutions like the Australian Constitution and American Constitutions[v], wherein this power has been explicitly demarcated, the Indian Constitution doesn’t have express provisions for the same. Though the intention of the Constitution makers remains that legislative powers should be exercised by those in whom it’s vested[vi], the same cannot be fructified in lieu of the efficient working of the intensive form of the modern government.

Therefore delegation of powers to administrative bodies is a necessity. When any administrative body exercises the law-making power delegated to it, it’s known as rule-making action or quasi-legislative action. When an instrument of a legislative nature is made by way of delegated powers, it’s called subordinate legislation[vii], being subordinate in the sense that the powers of the authority are limited by the statute which conferred these powers.

Quasi-legislative action is the function of subordinate legislation – making rules, regulations and other statutory instruments to fill in the details of legislative enactments in order to make the execution of laws possible.[viii] It imbibes in itself the characteristics which a normal legislation possesses.

According to Chinnappa Reddy, J. a legislative action has four features: 1. Generality; 2. Prospectivity; 3. Public interest; 4.rights and obligations flowing from it.[ix] These features help distinguish quasi-legislative actions from quasi-judicial action. However, this even in certain cases is not easy differentiation. In Express New Paper v UOI, the Supreme Court kept question whether the function of Wage Commission under the Journalists (Condition of Service) Act, 1956 is quasi-legislative or quasi-judicial was left open[x] . However the power to fix the price of sugar was held to be quasi-legislative.[xi] Therefore it can be understood that the task of differentiating between legislative and administrative action is difficult and theory and impossible in practice.

If a particular function is termed ‘rule-making’ instead of ‘judicial’ it can have substantial effects upon the parties concerned.[xii] There is no right of being heard before the making of a legislation, whether primary or delegated unless provided by the statute itself.[xiii] But since these actions are controlled by Parliament and the courts, Art 14 equally applies to these actions as well.[xiv]

Quasi-judicial action:

Majority of decisions which affect individuals and private bodies come not from administrative agencies. Since administrative decision making is a by-product of intensive form of government, the traditional judicial system falls short in giving quantitative and qualitative judgements required in a welfare state.  

Some jurisdictions use the term ‘quasi-judicial’ to describe administrative, adjudicatory or decision –making process. However since the term quasi-judicial is somewhat vague, it’s difficult to define and thereby falling to disuse. Administrative decision making may be defined as a power to perform acts administrative in nature but requiring some judicial characteristics.

On the basis of this various administrative functions have been held to be quasi-judicial by various courts:

1. Disciplinary actions against students.[xv]

2. Disciplinary proceedings against an employee for misconduct.[xvi]

3. Confiscation under the Sea Customs Act, 1878.[xvii]

4. Cancellation, suspension, revocation or refusal to renew licence or permit.[xviii]

5. Determination of citizenship.[xix]

6. Deciding statutory disputes.[xx]

7. Power to continue detention of seized goods beyond a certain period.[xxi]

8. Refusal to grant NOC under Bombay Cinemas (Regulations) Act, 1953.[xxii]

9. Forfeiture of pensions and gratuity.[xxiii]

10. Granting or refusing permission for retrenchment.[xxiv]

11. Grant of permit by regional transport committee.[xxv]

Donoughmore Committee on Minister’s Powers (1932) had attempted to analyse the attributes of a true administrative action. The Committee was of the view that a true judicial decision presupposes a lis between two or more parties and then involves:

1. Presentation of the case

2. Ascertainment of evidence

3. Submission of legal arguments

4. Decision which disposes of the whole matter by applying law and analysing evidence of the case

A quasi-judicial action involves the first two elements, may involve the third but never the fourth.  Decisions which are administrative stand on a wholly different footing from quasi-judicial and judicial decisions since in case of administrative actions there is no legal obligation to consider and weigh submission or collect evidence or pass judgement. The entire discretion is left to the administrative authority.  However this approach of the committee seems problematic because judges can’t be regarded merely as norm-producing machines.  Also in certain areas of administrative adjudication, such as tax, administration applies facts and laws similar to a judge. Hence it’s wrong to relegate a mixture of administration to the virgin purity of judicial pronouncement to a quasi-judicial position. Also this classification will fail in the case of independent tribunals.

The distinguishing feature of a quasi-judicial proceeding is that the authority concerned is required by law to act judicially. In India judicial search for the duty to act judicially was made within the statute[xxvi] under which the authority exercises powers, sometimes in extraneous and remote material[xxvii] and the implications arising thereof.[xxviii] This doctrinal approach of both Indian and English Courts caused confusion and eluded justice in several cases. Finally to prevent this, the foundation for application of principles of natural justice was laid down by Subba Rao, J.’s dissent in Radheshyam Kare v State of MP[xxix] . He wrote that incompetency carries with it a stigma and what is more derogatory than being stigmatized as incompetent to do their duty. It’s not reasonable to assume that officials in a democratic country are allowed to be punished without being given a chance to be heard. This dissent became strikingly pronounced in A.K. Kraipak v. Union of India[xxx]. Herein the Supreme Court held that though the action of making selection for government service is administrative, yet the selection committee is under a duty to act judicially. The Court observed that the dividing line between an administrative power and quasi-judicial power is quite thin and being gradually obliterated.[xxxi] Going a step further the Supreme Court clearly held in CB Boarding and Lodging House v State of Mysore[xxxii] that it is not necessary to classify an action of the administrative authority as quasi-judicial or administrative because the administrative authority is bound to follow the principles of natural justice in any case.

Purely administrative action

The expression administrative act is a comprehensive expression, comprising of three categories namely, quasi-legislative, quasi-judicial and purely administrative. In Ram Jawaya v State of Punjab[xxxiii] Mukherjee, CJ. observed 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. Thus administrative functions are those which are neither legislative nor judicial. A quasi-legislative act consists of making rules, regulations and the like, while a purely administrative act is concerned with the treatment of a particular situation. Therefore a legislative act is the creation and promulgation of a general rule of conduct without reference to particular cases; an administrative act includes the adoption of a policy, the making and issue of specific directions, and the application of a general rule to a particular case in accordance with the requirements of policy of expediency or administrative practice.

Accordingly[xxxiv]:

1. In certain circumstances an order has to be published as a statutory instrument if it is of a legislative nature but not if it is of an executive (i.e. administrative) character. But this test adopted for discriminating between the legislative and executive often appear to be pragmatic (is it in the public interest that this order should be published?) rather than conceptual.

2. It has generally been assumed that the courts will not award certiorari to .quash a legislative order Now that the courts no longer insist upon the need to characterize administrative decisions reviewable by certiorari as judicial in nature, it would perhaps be surprising, if they were to exclude from reach of the remedy administrative decisions of a legislative nature.

3. Courts may declare administrative act to be invalid for manifest unreasonableness, but it is not so clear that they have jurisdiction to hold a statutory instrument to be invalid for unreasonableness per se. However bye laws, a form of delegated legislation, have always been reviewable for manifest unreasonableness.

4. Authority to sub delegate legislative powers will be held to be implied only in the most exceptional circumstances. The courts are somewhat less reluctant to read into a grant of administrative authority to sub-delegate. It is, therefore, necessary to determine what type of functions the administrative authority performs

5. The duty to give reason for their decision does not extend to decisions in connection with the orders or schemes of a legislative and not of an executive character.

An administrative action is the residuary action which is neither legislative nor judicial. It has no procedural obligations of collecting evidence and weighing argument, it is based on subjective satisfaction where decision is based on policy and expediency. The principles of natural justice can be ignored completely when the authority is exercising “administrative powers”. Unless the statute provides otherwise, a minimum of principles of natural justice must always be observed depending on the fact situation of each case.

The new judicial trend is to insist that even if an authority is not acting in a quasi-judicial capacity, it still must act fairly. The courts have propounded the proposition that whether the function being discharged by the administration may be regarded as ‘quasi-judicial’ or ‘administrative’, it must nevertheless be discharged with fairness.[xxxv] The courts are increasingly shedding the use of the terms ‘quasi-judicial’ and ‘natural justice’ and instead adopting the concept of fairness. The advantage of the new judicial trend is that procedural fairness can be imposed on all decision-making bodies without having to characterise their functions as quasi-judicial.

The aim of both administrative inquiry and quasi-judicial inquiry is to arrive at a just decision and “if a rule of natural justice is calculated to secure justice, to prevent miscarriage of justice, it’s difficult to see why it should be applicable to quasi-judicial inquiry and not to administrative inquiry. It must logically apply to both. The concept of fairness has become a much more widely applicable procedural requirement. However, in spite of great expansion in the range of the administration where fair procedure is applied, the two concepts: quasi-judicial and natural justice-occur quite often in judicial opinions. For certain purposes the concept of quasi-judicial is still relevant. It therefore seems that the two concepts, ‘fairness” and “quasi-judicial” would continue to hold the field. It is also possible to argue on the basis of case law, that whereas those acting in a quasi-judicial manner have to observe the principles of natural justice those acting administratively have only to act fairly.

A few actions can be noted for the sake of clarity:

1. Issuing directions to subordinate officers not having the force of law[xxxvi]

2. Making a reference to a tribunal for adjudication under the Industrial Disputes act.[xxxvii]

3. Interment and deportation.[xxxviii]

4. Granting or withholding sanction to file a suit under Section 55(2) of the Muslim Wakf Act, 1954.[xxxix]

5. Granting or withholding sanction by the Advocate General under Section 92 of the Civil Procedure Code[xl]

6. Fact-finding action.[xli]

7. Requisition, acquisition and allotment.[xlii]

8. Entering names in the surveillance register of the police.[xliii]

9. Power of the Chancellor under the U.P. State Universities Act, 1973 to take decision on the recommendation of the Selection Committee in case of disagreement of the Executive Council with such recommendation.[xliv]

10. Functions of a selection Committee.[xlv]

11. Decision to extend time for anti-dumping investigation.[xlvi]

Administrative action can be statutory having the force of law or non statutory which are devoid of such force. The bulk of the administrative action is statutory because a stature or the Constitution gives it a legal force but in some cases it may be non-statutory, such as issuing directions to subordinate, but its violation may be visited with disciplinary action.[xlvii] Though by and large administrative action is discretionary and is based on subjective satisfaction, however, the administrative authority must act fairly, impartially and reasonably.

Conclusion

There is a general consensus amongst writers and lawyers alike that any attempt at classifying administrative functions on any conceptual basis is redundant. But sometimes even an administrative lawyer has to classify action into administrative, legislative, judicial and quasi-judicial. The fiction of quasi has been conveniently created to distinguish acts of the three organs. Although scholars decry such dichotomy as too artificial and superficial, such classifications are necessary especially between purely administrative and quasi-judicial. Also the concept of fair-play in administrative actions has discarded the distinction between the two, the fact still remains that in the present state of administrative law requires labelling of the functions and actions.  

Frequently Asked Questions

1. Who can challenge administrative action?

Administrative actions are amenable to judicial review. This means that if administrative actions are against principles of natural justice or in violation of citizen’s rights then the Courts can strike down such actions. Hence, persons – both natural and body corporate can challenge administrative actions in the Court of Law.

2. When does administrative action take effect?

Administrative action takes effect as soon as it is notified in the official gazette or on the date on which it is notified to come into effect.

3. Why is administrative action important?

The modern government is an intensive form of government based on the ideal of welfare state. Such a government has vast powers. To ensure that all these powers are exercised efficiently, for the citizen’s good, some of it is provided to administrative authorities. They ensure that the power is used efficiently, by way of various administrative actions hence, these actions are important.

4. How are administrative action and judicial review related?

Administrative action is of three kinds- quasi-legislative, quasi-judicial and pure administrative. Quasi-judicial actions include features of both pure administrative actions and judicial powers, and hence are naturally amenable to judicial review. But purely administrative actions, though can’t be referred to any judicial proceedings, are required to comply with basic principles of fairness. If it goes against that, such an action is amenable to judicial review.  

5. Can administrative action be combined with legislature and judiciary?

Certain aspects of administrative action have overtones of legislature and judiciary, the line of differentiation between them being extremely thin. However this doesn’t mean that the classification should be completely done away with.

Edited by Shikhar Shrivastava

Approved & Published – Sakshi Raje 

Reference

[i] DD Basu, Administrative Law, (1998) p. 6

[ii] Express News Paper (p) Ltd v. Union of India, AIR 1958 SC 578

[iii] Union of India v. Cynamide India Ltd, AIR 1987 SC 1802

[iv] SP Sathe , Administrative Law (1991) p. 126.

[v] Constitution of the United States of America, art 1 ; Constitution of Australia, sec 1

[vi] In Re Delhi Law Act Case, AIR 1951 SC 332.

[vii] Halsbury, (94th edn. Vol. 44), p 981

[viii] Jayantilal Amratlal v F. N. Rana, AIR 1964 SC 648 at 655.

[ix] Union of India v. Cynamide India Ltd.

[x] AIR 1958 SC 578.

[xi] Sita Ram Sugar Co. Ltd. v Union of India (1990) 3 SCC 233;

[xii] Schwartz, Administrative law (1976) p 143-44.

[xiii] Sundrajas Kanyalal Bhatija v. Collector, Thane, AIR 1990 SC 261.

[xiv] Sri Malaprabha Coop. Sugar Factory Ltd. v. Union of India, (1994)1 SCC 648.

[xv] Bhagwan v. Ramchand, AIR 1965 SC 1767.

[xvi] Cacutta Dock labour Board v. Jaffar Imam, AIR 1966 SC 282

[xvii] East India Commercial Co, y. Collector of Customs, AIR 1962 SC 1893.

[xviii] Fedco Ltd. v. Bilgrami, AIR 1960 SC 415

[xix] Ayubkhan v. Commr, AIR 1965 SC 1623.

[xx] C.S.T. v. Super Cotton works, (1989)1 SCC 643

[xxi] Lakhanpal v. Union of India, AIR 1967 SC 1507;

[xxii] State of Gujarat v. Krishna Cinema, (1970)2 SCC 744.

[xxiii] State of Punjab v. Iqbal Singh, (1976)2 SCC 1

[xxiv] Workmen v. Meenakshi Mills, (1922)3 SCC 336.

[xxv] Mitlesh Garg v. Union of India, (1992)1 SCC 168.

[xxvi] Province of Bombay v. Khusaldas Advani, AIR 1950 SC 222.

[xxvii] G. Nagesware Rao v. A.P. S.R.T.C., AIR 1959 SC 308.

[xxviii] Indian Sugar & Refineries Ltd. v. Amaravathi Service Co-operative society, AIR 1976 SC 775.

[xxix] AIR 1959 SC 107.

[xxx] (1969)2 SCC 262

[xxxi] AIR 1970 SC 150

[xxxii] AIR 1970 SC 2042.

[xxxiii] AIR 1955 SC 549

[xxxiv] De Smith, Judicial Review of Administrative Actions (1980) p. 71

[xxxv] Pergamon Press, (1970)3 All E.R. 535,

[xxxvi] Nagarajan v. State of Mysore, AIR 1966 SC 1942.

[xxxvii] State of Madras v. C.P. Sarathy, AIR 1953 SC 53.

[xxxviii] Gopalan v. State of Madras, AIR 1950 SC 27.

[xxxix] Abdul Kasim v.Mohd. Dawood, AIR 1961 Mad. 244.

[xl] A.K. Bhaskar v. Advocate-General, AIR 1962 Ker. 90

[xli] Narayanlal v. Mistry, AIR 1961 SC 29.

[xlii] Province of Bombay v. Khushaldas Advani, AIR 1950 SC 222.

[xliii] Malak Singh v. State of Punjab, AIR 1981 SC 760.

[xliv] Neelima Mishra v. Harinder Kaur, (1990)2 SCC 746.

[xlv] National Institute of Mental health and Neuro-Sciences v. K. Kalyana Raman, 1992 Supp(2) SCC 481.

[xlvi] Designated Authority (Anti-Dumping Directorate) Ministry of Commerce v. Haldor Topsoe A/s. (2000)6 SCC 626.

[xlvii] Raman and Raman v. State of Madras, AIR 1959 SC 694

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I am the first generation lawyer of my family with no legal backing whatsoever, planning to leave a mark in the legal world. I am always curious about various things and subjects which results in me being interested in a spectrum of discourses of the legal world. Currently, I am having an affinity for Competition Law and Human Rights, but it can change anytime. I love to explore, both in academic and non-academic domains. Curiosity might have killed the cat, but it is a trait I sincerely cherish in myself. I aim to be one of the most renowned faces in society and use my abilities to do well for the world.