Showing posts with label Administrative Law. Show all posts
Showing posts with label Administrative Law. Show all posts

 INTRODUCTION

Tribunal is a quasi-judicial institution that is set up to deal with problems such as resolving administrative or tax-related disputes. It performs a number of functions like adjudicating disputes, determining rights between contesting parties, making an administrative decision, reviewing an existing administrative decision and so forth. 

The term ‘Tribunal’ is derived from the word ‘Tribunes’, which means ‘Magistrates of the Classical Roman Republic’.  Tribunal is referred to as the office of the ‘Tribunes’ i.e., a Roman official under the monarchy and the republic with the function of protecting the citizen from arbitrary action by the aristocrat magistrates. A Tribunal, generally, is any person or institution having an authority to judge, adjudicate on, or to determine claims or disputes – whether or not it is called a tribunal in its title

 Need of Tribunal

  • To overcome the situation that arose due to the pendency of cases in various Courts, domestic tribunals and other Tribunals have been established under different Statutes, hereinafter referred to as the Tribunals.
  • The Tribunals were set up to reduce the workload of courts, to expedite decisions and to provide a forum which would be manned by lawyers and experts in the areas falling under the jurisdiction of the Tribunal.
  • The tribunals perform an important and specialised role in justice mechanism. They take a load off the already overburdened courts. They hear disputes related to the environment, armed forces, tax and administrative issues. 

Constitutional Provisions 

Tribunals were not part of the original constitution, it was incorporated in the Indian Constitution by 42nd Amendment Act, 1976.
  • Article 323-A deals with Administrative Tribunals.
  • Article 323-B deals with tribunals for other matters. 
  • Under Article 323 B, the Parliament and the state legislatures are authorised to provide for the establishment of tribunals for the adjudication of disputes relating to the following matters: 
  1. Taxation
  2. Foreign exchange, import and export
  3. Industrial and labour 
  4. Land reforms 
  5. Ceiling on urban property 
  6. Elections to Parliament and state legislatures
  7. Food stuff 
  8. Rent and tenancy rights 

Articles 323 A and 323 B differ in the following three aspects:

  • While Article 323 A contemplates the establishment of tribunals for public service matters only, Article 323 B contemplates the establishment of tribunals for certain other matters (mentioned above).
  • While tribunals under Article 323 A can be established only by Parliament, tribunals under Article 323 B can be established both by Parliament and state legislatures with respect to matters falling within their legislative competence. 
  • Under Article 323 A, only one tribunal for the Centre and one for each state or two or more states may be established. There is no question of the hierarchy of tribunals, whereas under Article 323 B a hierarchy of tribunals may be created. 
Article 262: The Indian Constitution provides a role for the Central government in adjudicating conflicts surrounding inter-state rivers that arise among the state/regional governments. 
n Tribunals in India

Administrative Tribunals

Administrative Tribunals was set-up by an act of Parliament, Administrative Tribunals Act, 1985. It owes its origin to Article 323 A of the Constitution. It adjudicates disputes and complaints with respect to recruitment and conditions of service of persons appointed to the public service and posts in connection with the affairs of the Union and the States. 
The Administrative Tribunals Act, 1985 provides for three types of tribunals: 
  • The Central Government establishes an administrative tribunal called the Central Administrative Tribunal (CAT).
  • The Central Government may, upon receipt of a request in this behalf from any State Government, establish an administrative tribunal for such State employees.
  • Two or more States might ask for a joint tribunal, which is called the Joint Administrative Tribunal (JAT), which exercises powers of the administrative tribunals for such States. 
  • There are tribunals for settling various administrative and tax-related disputes, including Central Administrative Tribunal (CAT), Income Tax Appellate Tribunal (ITAT), Customs, Excise and Service Tax Appellate Tribunal (CESTAT), National Green Tribunal (NGT), Competition Appellate Tribunal (COMPAT) and Securities Appellate Tribunal (SAT), among others. 

Central Administrative Tribunal

It has jurisdiction to deal with service matters pertaining to the Central Government employees or of any Union Territory, or local or other government under the control of the Government of India, or of a corporation owned or controlled by the Central Government. The CAT was set-up on 1 November 1985. It has 17 regular benches, 15 of which operate at the principal seats of High Courts and the remaining two at Jaipur and Lucknow. These Benches also hold circuit sittings at other seats of High Courts. The tribunal consists of a Chairman, Vice-Chairman and Members.The Members are drawn, both from judicial as well as administrative streams so as to give the Tribunal the benefit of expertise both in legal and administrative spheres. The appeals against the orders of an Administrative Tribunal shall lie before the Division Bench of the concerned High Court.

State Administrative Tribunal

  • Article 323 B empowers the state legislatures to set up tribunals for various matters like levy, assessment, collection and enforcement of any of the tax matters connected with land reforms covered by Article 31A.

 Water Disputes Tribunal 

The Parliament has enacted Inter-State River Water Disputes (ISRWD) Act, 1956 have formed various Water Disputes Tribunal for adjudication of disputes relating to waters of inter-State rivers and river valleys thereof.
Standalone Tribunal: The Inter-State River Water Disputes (Amendment) Bill, 2019 is passed by Parliament for amending the existing ISRWD Act, 1956 to constitute a standalone Tribunal to remove with the need to set up a separate Tribunal for each water dispute which is invariably a time-consuming process.

Armed Forces Tribunal (AFT)

It is a military tribunal in India. It was established under the Armed Forces Tribunal Act, 2007. It has provided the power for the adjudication or trial by AFT of disputes and complaints with respect to commission, appointments, enrolments and conditions of service in respect of persons subject to the Army Act, 1950, The Navy Act, 1957 and the Air Force Act, 1950. Besides the Principal Bench in New Delhi, AFT has Regional Benches at Chandigarh, Lucknow, Kolkata, Guwahati, Chennai, Kochi, Mumbai and Jaipur. Each Bench comprises of a Judicial Member and an Administrative Member.
The Judicial Members are retired High Court Judges and Administrative Members are retired Members of the Armed Forces who have held the rank of Major General/ equivalent or above for a period of three years or more, Judge Advocate General (JAG), who have held the appointment for at least one year are also entitled to be appointed as the Administrative Member.

National Green Tribunal (NGT)

The National Environment Tribunal Act, 1995 and National Environment Appellate Authority Act, 1997 were found to be inadequate giving rise to demand for an institution to deal with environmental cases more efficiently and effectively.
The Law Commission in its 186th Report suggested multi-faceted Courts with judicial and technical inputs referring to the practice of environmental Courts in Australia and New Zealand. As a result NGT was formed as a special fast-track, quasi-judicial body comprising of judges and environment experts to ensure expeditious disposal of cases.
The National Green Tribunal was established in 2010 under the National Green Tribunal Act 2010 as a statutory body. It was setup for effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources. It also ensures enforcement of any legal right relating to environment and giving relief and compensation for damages to persons and property. 

The Tribunal is mandated to make and endeavour for disposal of applications or appeals finally within 6 months of filing of the same. Initially, the NGT is proposed to be set up at five places of sittings and will follow circuit procedure for making itself more accessible. New Delhi is the Principal Place of Sitting of the Tribunal and Bhopal, Pune, Kolkata and Chennai shall be the other four place of sitting of the Tribunal. 

Income Tax Appellate Tribunal

Section 252 of the Income Tax Act, 1961 provides that the Central Government shall constitute an Appellate Tribunal consisting of many Judicial Members and Accountant members as it thinks fit to exercise the powers and functions conferred on the Tribunal by the Act.

Characteristics of Administrative Tribunals

  • Administrative Tribunal is a creation of a statute.
  • An Administrative Tribunal is vested in the judicial power of the State and thereby performs quasi-judicial functions as distinguished from pure administrative functions. 
  • Administrative Tribunal is bound to act judicially and follow the principles of natural justice. 
  • It is required to act openly, fairly and impartially. 
  • An Administrative Tribunal is not bound by the strict rules of procedure and evidence prescribed by the civil procedure court. 

Merging of Tribunals 

The Finance Act of 2017 merged eight tribunals according to functional similarity. The list of the tribunals that have been merged are given below:
  1. The Employees Provident Fund Appellate Tribunal with The Industrial Tribunal.
  2. The Copyright Board with The Intellectual Property Appellate Board . 
  3. The Railways Rates Tribunal with The Railways Claims Tribunal. 
  4. The Appellate Tribunal for Foreign Exchange with The Appellate Tribunal (Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976. 
  5. The National Highways Tribunal with The Airport Appellate Tribunal.
  6. The Cyber Appellate Tribunal and The Airports Economic Regulatory Authority Appellate Tribunal with The Settlement and Appellate Tribunal (TDSAT) . 

The Competition Appellate Tribunal with the National Company Law Appellate Tribunal. Difference Between Tribunal and Court 

Administrative Tribunals and Ordinary Courts both deal with the disputes between the parties which affects the rights of the subjects.Administrative Tribunal is not a court. 
Some notable differences between a court and Administrative Tribunal are as follows - 
  • A court of law is a part of the traditional judicial system whereby judicial powers are derived from the state. 
  • An Administrative Tribunal is an agency created by the statute and invested with judicial power. 
  • The Civil Courts have judicial power to try all suits of a civil nature unless the cognizance is expressly or impliedly barred. 
  • Tribunal is also known as the Quasi-judicial body. Tribunals have the power to try cases of special matter which are conferred on them by statutes 
  • Judges of the ordinary courts of law are independent of the executive in respect of their tenure, terms and conditions of service etc. Judiciary is independent of Executive. 
  • Tenure, terms and conditions of the services of the members of Administrative Tribunal are entirely in the hands of Executive (government). 
  • The presiding officer of the court of law is trained in law. 
  • The president or a member of the Tribunal may not be trained as well in law. He may be an expert in the field of Administrative matters. 
  • A judge of a court of law must be impartial who is not interested in the matter directly or indirectly. 
  • An Administrative Tribunal may be a party to the dispute to be decided by it.
  • A court of law is bound by all the rules of evidence and procedure. 
  • An Administrative Tribunal is not bound by rules but bound by the principles of nature of Justice. 
  • Court must decide all questions objectively on the basis of evidence and materials on record. 
  • Administrative Tribunal may decide questions by taking into account departmental policy, the decision of Administrative Tribunal may be subjective rather than objective.
  • A court of law can decide vires of a legislation 
  • Administrative Tribunal cannot do so. 

ABSTRACT

Delegated and Sub-delegated is part of the Constitution, but this is the concept under administrative law. To know delegated and sub-delegated legislation, firstly we need to know what administrative law is. Administrative law is the legal framework of the Constitution within the public administration. It creates and develops a system of public administration under the concept of law. Administrative law function as a blood in the Constitution skeleton. Delegated and sub-delegated legislation are the types of legislation which we study under administrative law. In this article, we will discuss meaning, forms or types, legal maxims and case laws of the delegated and sub-delegated legislation. The scope of delegated and sub-delegated legislation is very wider, it includes many forms of them.

DELEGATED LEGISLATION: MEANING, NATURE AND SCOPE, REASONS FOR DEVELOPMENT, CONSTITUTIONALITY AND LIMITATIONS

MEANING: Delegated legislation means delegation of power passed or delivers from higher authority to lower authority. Delegated legislation means the power is given by the parliament to the administrative authority. It can also mean that legislation made by other authorities other than legislature. Thee delegated authority has to work or act within the limitation of superior authority.

NATURE AND SCOPE: The scope of delegated legislation is too wider and broader. This legislation established a good administration in Indian legal system. The rigid application of the doctrine of non-delegability is not permissible in India, because of complexity and technicality of law in India. This helps to government to deal with the social and economic problems in effective and efficient manner. This legislation includes doctrine of ultra vires, it means beyond the scope, authority or power of any corporation or statutory body. It implies for absence of power to do any act. If delegated authority do any act beyond its within limit then it becomes ultra vires and illegal or invalid.[i]

REASON FOR DEVELOPMENT OF DELEGATED LEGISLATION
   PRESSURE ON PARLIAMENT – The work of legislation is so long and large. To make a law, it has lot of time and it is not possible to discuss every detail of matter or law or any act. So, the legislature made skeleton and executive laying down rules and policies in it.

·       TECHNICALITY – Now, the subject matter of legislation is so technical. So, we need an assistance of experts. In India, we do not have any expert politician in all Fields. So, these technical matters handle and solve by experts, for e.g. gas, atomic, electricity etc.

·       FLEXIBILITY – A law has foreseen contingencies in future, Parliament cannot foreseen any contingencies while passing an enactment but the executive can satisfying these demands of foreseen contingencies for provision because they are related public opinion. For e.g. Police regulation, Bank rate, import-export etc.

·       EXPERIMENT – This method help executive to experiment in rapid utilization of experience and implementation of necessary changes in the provision in the light of experience such as Road traffic rules etc.

·       EMERGENCY – Sometimes, Parliament is not in session at that time we do not make any laws which we needed at that time then executive make some rule and regulations or can pass ordinance for particular period of time.[ii]

CONSTITUTIONALITY AND LIMITATION: Constitutionality of delegated legislation means the permissible limit within the provision of Constitution. If legislature delegates his rule-making power or authority to executive, then he has to work within the limit of constitutional provision otherwise it will be ultra vires or invalid. The essential legislative function cannot be delegated. There are four limitations on delegated legislation:

 Constitutional Supremacy – The Constitution is grundnorm of every law and act. Constitution is supreme in India. If any delegated power beyond the limit of the constitutional provision, then the rules made by delegated authority was invalid.

2.     Not contradictory to Act – If any rule made by executive or administrative authority is contradictory to act or provision of the act, then also it is invalid.

3.     Judicial Review – The concept of judicial review in delegation indicates to ultra vires, it means beyond the scope, authority or power of corporation or statutory body. 

4.     Essential Legislative Function – Legislature cannot delegates its essential legislative function. For example, legislature makes skeleton for any statute but they cannot delegate this power to other authority, they can only delegates power of laying down principles and policies.

SUB – DELEGATED LEGISLATION: MEANING, NATURE AND SCOPE, TYPES OR FORMS AND PRECEDENT IN INDIA

MEANING: Sub-delegated legislation means when the rule making authority further delegates its rule making power to issue rules to other authority then such exercise of rule- making power is known as sub-delegated legislation. The maxim “Deleatus non potest delegare”, it means “A delegator cannot further delegate”. A delegator cannot further delegate its power to other authorities, rule-making authority unless this power of delegation contained enabling act. This legislation should be express for necessary implications.[iii]

NATURE AND SCOPE: The nature and scope of sub-delegation is also wide like delegated legislation. A rule-making authority can sub-delegate its rule-making power to other authority when enabling or parent act expressly or impliedly authorize them to further delegates their powers. The maxim, Delegatus non potest delegare narrow the scope of sub-delegation. If the enabling or parent act does not expressly authorise to delegate power then legislative power cannot be sub-delegated. In a leading case, Ganpati v. State of Ajmer[iv], it was held that an enabling or parent act authorised the Chief Commissioner to making rules for the establishment of a proper system for sanitation and conservancy. The Chief Commissioner authorised District Magistrate to made rules to invent a new way of doing something his own system. The Supreme Court held that the rules were made by District Magistrate was invalid because it was sub-delegation without an express authority. It can be valid if the parent act authorised to sub-delegation. Sub-delegation includes the principle or doctrine of Excessive Legislation, it means the legislature or rule making authority excessively delegates its power or legislative function to other authority, such delegation will be held unconstitutional. This principle fulfils two objectives that it ensures democratic accountability in the laws and it gives minimum delegation to the court with discretion to judge if the delegation is ultra vires to the enable act. 

TYPES OR FORMS OF SUB-DELEGATED LEGISLATION: There are three types of sub-delegation. These are the broader classification of the sub-delegated legislation under Indian Legal System.

1.     FULL OR PARTIAL – A delegation is full when all the powers are conferred to the agent or other authority. For e.g. all power to alter or amend or repeal any law by the competent authority. A delegation is partial when he requires getting some guidelines or guidance on crucial point from the delegated authority. For e.g. Section 5 of the Essential Commodities Act, 1955. 

2.     CONDITIONAL AND UNCONDITIONAL – Delegation is condition when the action of a delegated authority is subject to revise and confirm by the superior authority or it includes some conditions. Unconditional delegation means the delegated authority has similar power to superior authority. Under Section 3 of the Essential Commodities Act, 1955, the sugar control was made by the Central government (superior authority) then under the order certain function and power passed or conferred to Textile Commissioner (delegated authority) and under clause 10 the power of textile commissioner can authorize to any officer to act behalf on him (sub-delegated authority).

3.     SKELETON LEGISLATION – The skeleton legislation means that superior authority makes a skeleton of statute without laying down any policy and principles and delegated authority provides blood in this skeleton by laying down policy or principle with the help of guidance and they cannot cross the limits outside the guidance.

JUDICIAL PRECEDENTS IN INDIA OF DELEGATION AND SUB-DELEGATION 

In a leading case, Ajaib Singh v. Gurbachan Singh[v], it was held that under a statute Central Government has authority to make rules for detention of any person by any other authority but not the lower than rank of District Magistrate but order of detention was passed by the Additional District Magistrate which was held bad. The delegated legislation was held strict interpretation of the statute.

District Collector Chittoor v. Chittoor District Groundnut Traders Association,[vi] in this case, the Essential Commodities Act, 1955 confers rule-making to the Central Government and the Central Government sub-delegated his power to the State Government on the condition that the State Government should obtain the concurrence of the Central Government. The Supreme Court held that State Government made rule without concurrence of Central Government. So, the rules would be ultra vires.[vii] 

Delhi Laws Act, 1912[viii]

It was a landmark judgement and case under delegated legislation. In this case, the act gives power to the Central Government to extend the area of Delhi and Ajmer-Mawar with some restrictions and modified and it was held intra vires. The legality or validity of this case was also discussed that government extend to part C states any law in force in a part A and to repeal existing law. It was held ultra vires under Article 143 of the Constitution because the delegated powers act excessively. 

CONCLUSION

Delegation and sub-delegation are the common legislation under constitutional and administrative law. Now, due to technicality and development in the structure of law, these two legislations are plays an important role because of this, superior authority or legislation has less burden of work and they can save time as well. But these legislations have also negative impact, delegated or superior authority either one or both can misuse their power of delegation. As we seen in many cases that delegated authority alter, amend or repeal act by their own choice or sometimes superior authority uses his delegated powers excessively. At last, this is the need for a good administration in Indian legal system.


 By- Nishu Singh


 


 


 




[i] Delegated Legislation Development and Parliamentary Control, last visited on 16th August 2020, http://www.legalservicesindia.com/article/2421/Delegated-Legislation-Development-and-Parliamentary-Control.html

[ii] Meaning and definition of Delegated Legislation, last visited 17th August 2020 https://tyrocity.com/topic/meaning-and-definition-of-delegated-legislation/

[iii] Delegation of powers, last visited on 18th August 2020, https://www.britannica.com/topic/delegation-of-powers

[iv] 1955 AIR 188, 1955 SCR(1) 1065

[v] AIR 1965 SC 1619

[vi] AIR 1989 SCC 58

[vii] Conceptual analysis of sub Delegation: An overview, last visited on 19th August 2020, www.lawjournals.org