ABSTRACT
Administration in India is controlled in most aspects yet not exhaustive. The country does not follow a strict separation of power and therefore experiences overlapping in the functioning the three organs. The same overlapping applies to the delegated powers exercised by administrative authorities, and there might be an overreach in such a stretch of powers. The paper explores the scope and extent of administrative authorities in India to determine if any overreach exists by taking relevant case studies in consideration.
INTRODUCTION
Hon’ble Mr. Justice P. B. Mukharji once said, “Someone has said: “Tell me the philosophy of a man, and I shall easily tell you the kind of person he is.” If that be true of a man, it is truer still of jurisprudence. It is necessary to approach the problems of administrative law with reference to the legal philosophy that one has in mind”[1].
The Constitution of India has not bound the three organs of the Government toa strict separation of power. The bureaucracyis a subordinate of the political Executive and is subject to its directives.However, the judiciary is one of the organs of the Government; therefore, it claims its independence on the ground of the principle of separation of powers. This often results in a tussle between the political branches that represent the will of the people as representatives and the judiciary that delivers justice for the benefit of the larger masses. The same tussle has given rise to popular theories, i.e., red light, green light, amber light,and more.
The Supreme Court, over the years, has reiterated many times that the overlapping of functions amongst the three organs shall never escalate to overreach. It is ultra vires the Constitution. As wonderfully described in the case of Indira Gandhi v. Raj Narain[2], “The Constitution has a basic structure comprising the three organs of the Republic: The Executive, the Legislature and the Judiciary. Through each of these organs, the sovereign will of the people has to operate and manifest itself and not through only one of them. None of these three organs of the Republic can take over the functions assigned to the other. This is the basic structure or scheme of the system of the Government of Republic.[3]“
On the route of integrating its economy with the world’s trends, India has made progress. However, the nation’s legal system is attempting to cater to the trend of globalization to foster development following the values of the Indian Constitution and the traditions and vision of the Constitution’s creators. This is done per the Indian spirit and tradition of continuity, with incorporation and the ability to adapt.
Montesquieu valued the separation of powers principle because it upholds the rule of law and guards against authoritarianism, which would endanger civil liberties. An independent judiciary is necessary for a government founded on the rule of law and liberal democracy. It makes sense that the Indian court has zealously guarded the concepts of the separation of powers and the rule of law in addition to its independence and dignity.
The following paper attempts to understand the underlying transition from the discharge of delegated functions to the overreach of power. The author compares the evolution of delegated legislation in India with other countries and speculates on the Indian scenario by taking an example of Karnataka’s not-so-old Lokayukta and Anti-Corruption Bureau fiasco.
ADMINISTRATIVE DUTIES IN THE U.S., THE U.K., AND INDIA
In democratic nations, there is a typical inclination nowadays to give administrative officials much discretion—the amount of discretion to be given to what authority depends on the nature of the authority. If the legislature does not define the power it is keeping in the hands of the Executive, there is an enormous scope of maladministration and misuse of the loopholes.
The extent of the legislative branch’s ability to provide executive or administrative agencies with policy-making authority has been a point of contention since the administrative State was established. Generally speaking, the agencies are responsible for filling in the specifics of significant legal policy choices made by the legislature.The legislature must give the skeleton for every legislation and only leave out minimal details for the administration to fill. The legislature should include a straightforward principle, definable norms, and procedural protections in its legislation. The courts might hold that the legislature has violated the doctrine of nondelegation, which states that the legislature shall not assign its fundamental roles to the executive branch, the judicial branch, or administrative agencies without giving the guidance of the basic structure and objectives of the policy in question.
The courts in England have no way of regulating the amount of discretion that Parliament may provide the Executive due to the predominance of the idea of Parliamentary Sovereignty and the lack of judicial review of legislation[4].Since any law that administrative authorities pass is valid in all circumstances, the Parliament may frequently give absolute discretion on the administration without any means to regulate its functions. This means that the administration might ultimately judge right or wrong in its cases. The Parliament may dress up administrative bodies as an institution entirely immunized from judicial review. Also, English courts have declined to insert procedural safeguards into statutes that allow the administration to take administrative action[5].
There is one form of administration that the United States has chatted about since the framing of its Constitution, the presidential administration. The extent of powers provided to the presidential administration has always been debated whether or not they shall be given the power to shape policy and execute the laws as per their will[6].
Because of the system of checks and balances, chapters on parliamentary delegation and judicial review also discuss some of the factors underlying the inclination of presidential governments to attempt to increase executive authority. This is an underlying effort to overpower the doctrine of separation of powers in a country that follows it strictly. At the base of this ruckus, the underlying principle is that the Presidents should not compromise the Constitution, institutional integrity, or long-standing ties between the Executive and legislative branches in favor of short-term political and policy gains. Presidents must be aware of the history and concerned about the future. Strategies for the short term produce fleeting rewards.
The Indian approach to administrative law was unique and not stolen from either America or England[7].The primary element that defines the kind, tone, and method of administrative law permitted in a nation is that nation’s Constitution. Due process of law, which states that no one shall be deprived of their life, liberty, or property without due process of law, is the cornerstone of American administrative law.The only country that relies on natural justice to regulate administrative processes is England, which does not have a written constitution or a written bill of rights.
In India, the duty to maintain the separation of powers, as provided by the Constitution, lies with the Supreme Court, as held in L. Chandrakumar v. Union of India[8]. Therefore, the Executive’s attempts to opt administrative authorities out of the purview of judicial control is an outright overreach of its functions, unlike the system in England.
Long-term institutional interests of the Executive, legislative, and judicial branches include maintaining the health of all three institutions by exercising their unique prerogatives and the mutually intricate checks and balances between them.Administrators, judges, lawmakers, and executives must all avoid the urge to exaggerate their authority in order to advance their policy preferences. We should not be eager to forfeit our governing structure for the exhilaration of winning (or even a string of wins) in a particular policy battle.
LOKAYUKTA OR ANTI-CORRUPTION BUREAU?
A method adapted to inculcate smooth functioning of Government isdelegating judicial powers and functions to the Executive, who further delegates them. Such delegation has resulted in the growth of administrative tribunals and regulatory bodies. Before India began liberalizing government control over the economy, the Government recognized the need for more expeditious justice in some cases, professional expertise, and more sensitive decision-making in place of dispassionate adjudication of conflicts. As a result, independent tribunals entered the regulatory system before autonomous regulatory organizations. The Indian Constitution’s 42nd amendment gave the Parliament and relevant legislatures the authority to establish alternative tribunals and courts to resolve disputes[9].
A similar approach for inquiring into maladministration, in the form of corruption, is the emergence of the country’s Ombudsman and other administrative bodies. One such body in India is the Lokayukta; Lokayuktas are India’s adopted model of Ombudsman, in a broad sense of perspective.
Lokayukta is governed under the Lokpal and Lokayukta Act, 2013, and, therefore, remains a statutory body without any constitutional status. The chairperson of a Lokpal is either the former Chief Justice of India or the former Judge of the Supreme Court, or any learned individual deemed fit by the Selection Committee and the President[10]. The Lokayukta investigates the allegations of corruption against public officers and ensures checks and balances.
In 2016, the Karnataka government issued an order and formed an institution called the Anti-Corruption Bureau (A.C.B.)[11]. The powers and functions of this were parallel to that of the Lokayukta except for the fact that the power to appoint the head of the A.C.B. would lie with the Chief Minister of the State, giving immense discretionary power to him for choosing whomwould the A.C.B. inquire into. This involves a tremendous political agenda and defeats the purpose of erasing maladministration.
On September 9, 2022, the Government of Karnataka ordered the abolition of the Anti-Corruption Bureau (A.C.B.) after six years of it being in order[12]. The bench stated that it was “high time” that the state government strengthened the institution of Lokayuka and Upa-Lokayukta and returned it to the “glory” it had acquired. The executive order of the institution of A.C.B. had reduced Lokayukta into a “paper tiger”[13].
The high court of Karnataka also observed that “there was no necessity for the state government to constitute A.C.B. parallel to the institution of Lokayukta.”[14] This case is an example of malafide intentionby the Executive who created an administrative authorityonly to overreach the functions delegated to a statutory body.
The malpractice was so profuse that several petitions were filed against it, and all of them contended that it was disrespectful to the position and experience of Lokayutas and UpLokayutas since it is dignitaries of the legal profession who sit on those chairs. A political agenda was hidden behind it,and it resurfaced when one of the political parties included the abolition of A.C.B. in their election manifesto. After the judgment was delivered and the A.C.B. was abolished, the State published a statement saying they would not contest the judgment further in the Supreme Court.
SUGGESTIONS AND CONCLUSION
India developed the administrative field of governance independently, without any other country’s adaptation or interference. Over the years, there have been exciting developments in outreach and regulations in the field of administration and delegated legislation in the country. It differs from how administrative authorities function in countries with strict separation of powers, i.e., the U.S.A., and countries with minimal to no checks and balances on administrative authorities,i.e., the U.K.
However, every power has its pros and cons. Power corrupts when misused. Drawing inferences from the case study in this paper, it is a clear example of an administrative authority set up to overreach a statutory body’s powers. This is an example of administrative overreach in India. It took six years and several writ petitions to curb this overreach issue. Further, the political involvement in this particular case might also be a reason for the quick resolution of the issue.
Although the judicial review of the administrative authorities ensures checks and balances in the country, there will always be instances of such overreach that must be curbed occasionally.
To achieve a speedier eradication of such administrative overreach, the Central Government may introduce another institution likethe Ombudsman, neutral to the existing organs. This authority shall have central jurisdiction, i.e., over state governments and authorities. Such Ombudsman shall be able to inquire and adjudicate in the matters of administrative overreach in the country.
Although the country lacks infrastructural advancements, this might reduce what has happened to fast-track courts in the country. Therefore, any suggestion to become a practical reality is a long way to go in India.
[1]P. B. Mukharji, ADMINISTRATIVE LAW, 1(1) Journal of the Indian Law Institute, (1958).
[2] (1975) Supp. SCC 1.
[3](1975) Supp. SCC 1.
[4] See Supra note 3.
[5]Ibid.
[6]Jeremy Kessler and Charles Sabel, The Uncertain Future of Administrative Law, 150(3) The MIT Press on behalf of the American Academy of Arts & Sciences, (2021).
[7]P. B. Mukharji, ADMINISTRATIVE LAW, 1(1) Journal of the Indian Law Institute, (1958).
[8] (1997) 3 SCC 261.
[9]Sheela Rai, INDIA’S TRYST WITH INDEPENDENT TRIBUNALS AND REGULATORY BODIES AND ROLE OF THE JUDICIARY, 55(2) Journal of the Indian Law Institute, (2013).
[10]Lokpal and Lokayukta Act, 2013, § 3.
[11]Chidananda Urs B.G v. The State of Karnataka, 2022 SCC OnLine Kar 1488: (2022) 5 Kant LJ 193.
[12]Express News Service, After 6 years, Karnataka government orders abolition of ACB, revival of Lokayukta, Indian Express (2022). https://indianexpress.com/article/cities/bangalore/karnataka-government-orders-abolition-of-acb-revival-of-lokayukta-8141965/
[13]Chidananda Urs B.G v. The State of Karnataka, 2022 SCC OnLine Kar 1488: (2022) 5 Kant LJ 193.
[14]Ibid.