Codification of Administrative Adjudicatory Procedure

In recent years a tendency of vesting extensive adjudicatory powers affecting private lights and obligations in the administrative agencies, may be seen, To secure fairness in hearing and to guard against abuse of those powers, procedural safeguards providing minimum requirements of fair procedure are necessary. As was observed by an American authority, "an adequate pattern of procedure is imperatively needed to serve as a guide to and check upon administrative officials in the exercise of their discretionary po wers"1. In America the procedural safeguards are conta ned in the Administrative Procedure Act, 1946. In our country the administrative procedure is not governed by a single Act. The procedures are laid down in the statutes creating the administrative organs. The procedures thus prescribed are not uniform. In respect of adjudication of disputes the proceduies are diversified, varying from "no heaaring"2 at all to elaborate judicialised hearing procedure3. ln regard to review of administrative decisions the disparity is no less marked. At one extreme an appeal from an administrative decision to the High Court is permitted4 and at the other extreme resort to judicial redress is sought to be curtailed by making the administrative decisions final5 Differing procedures for differing administrative agencies would create confusion to any one unversed in the intricacies of any special law governing any matter. Thus the aduimstracive adjudicatory procedure in our country is unsystematic and in a chaotic condition. In this paper it is proposed to scrutinise the feasiility and desirability of codifying the administrative adjudicatory procedure with reference to our country.
Broadly stating, a code signifies the idea of a comprehensive and systematic written instrument containing rules on a given subiect.6 Systematic arrangement and uniformity of princsples are the two chief characteristics of codification7. For a successful codification of any law, according to Savigny, the founder of the Historical School of law, the subject has to be ripe and the law has to undergo "such a scientific refinement and specialisation as to be cap able of being crystallised into explicit rules." A code should be founded on the firm basis of experience. It is unwise to attempt to codily the law when it is in the process or formulation8. It is ripe for codification when the principles of law are well settled and when the decided cases are in the main-mere illustrations of accepted general rule9. The question therefore is whether the time has come for formulation of general procedural principles applicable to all types of administrative tribunals. While Feller expressed doubtl0, Parker categorically stated that ' the time is not yet mature and the subject is not yet settled"11. Moreover, administrative adjudications are not uniform, They are too diverse, too complex and variable to admit of a uniform code of adminis-trative procedure. In some cases the issues involved may be highly controversial and in others, stereo-typed. A state may be a party in some cases and it may be an adjudicater and a party in some other cases. Sometimes it may merely play the role of a referee.
The diversity of adjudications thus involved compelled Benjamin to remark that "it would be worse than useless to require all those proceedings to conform to the same standards of piocedure," According to him, "to devise a uniform code is impossible without doing violence to the diversity of types involved or unless it were so general as to be illusory"12. Davis expressed that "uniformity is impossible on major procedural patterns"13. Benjamin opined that a code of administrative procedure unlike a civil code, would not be subject to"unitying influence" because it would be interpreted and applied by various agencies with diverse results14. According to he majority view of the American Attorney-General Committee, variety of administrative agencies would preclude the idea of a code applicable to all agencies. The consequences of the adoption of a uniform code would be two-fold. Firstly, the retention of necessary flexibility would render the code merely exhortative. It may full of exceptions. Much discretion would be left to the admiaiscrative agencies thus making the provisions of the code nerely nugatory. Secondly, "the code comnands the obvious in situation whare dis-obedience of the command will, without the code, vitiate administrative action15. The idea of imposing a uniform procelure on every tribunal disregarding its special needs does not find favour with Robson16, Feller thought that it would be 'like adopting one set of rules for all the range of Courts in a state judicial system"17. The American President's Conference on Administrative Procedure did not accept that procedures of all agencies could be made uniform 18. Thus the consensus of opinion reveals that the detailed codification of administrative procedure is neither feasible nor desirable,
An American Experience
As a result of various attempts to secure uniform administrative procedure, the Administrative Procedure Act, 1946,was enacted. It is a first legislative attempt to cure the defects in the administrative process and points the way to a legislative formulation of the fundamentals of fair play in the administrative procedure as a whole. It is a comprehensive piece of legislation laying down standard procedures for all administrative agencies. The object of the Act was "to introduce greater uniformity of procedure and standardisation of administrative practice", among the various administrative agencies whose procedures depart widely from each otherl9. It embodies certain basic procedural principles which are to govern the administrative process. It sets forth certain essential requirements of adjudication and a simplified statement of the methods and scope of judicial review.
The Act requires that in every case where a statute provides for hearing in adjudicatory proceedings certain procedure is to be observed, Before hearing, notice of time, place of hearing and charge levelled against, must be given to the party. The notice must forth "the legal authority and jurisdicon under which the hearing is to be held, the matters of fact and law asserted". Notice which is not in conformity with the prescribed procedure under the Act is not a legal notice. Right to be represented by counsel is secured. Oral and documentary evidence is permitted Judicial resview is provided. This in brief is the summary of the provision relating to adjudicatory procedure.
There is divergence of opinion regarding the question whether the Act is a complete code embodying the procedural provisions applicable to all administrative agencies. According to Parker, it is anything but codification 20. Several reasons have been advanced in support of this view. Firstly the Act is too general and vague rather than specific. Secondly it contains several provisions whose applicability depends on the various agency enabling statutes. Thirdly, it does not achieve uniformity. Fourthly, it leaves the existing procedures unaltered and adds new types21. Fifth, the Act does not attempt to regulate every administrative procedure22. Sixthly it leaves the most important question when in adjudicatory proceedings hearings are required 23. Seventhly, it merely states in general terms that parties must be informed of time, place and nature of hearing, But the question whether in a given case there must be hearing and if so, who is entitled to it and whether it is to be oral, are as wide open as ever24. Senator McCanan also subscribes to the view that it is not a code, but it con-tains an outline of minimum basic essentials25. It is far from a comprehensive code of administrative procedure. It grants in broad terms discretionary power containing only a statement of minimum requirements.
Apart from the controversy whether the Act is a code or not, the Act by prescribing uniform standards of fair procedure tends to ameliorate to a larger extent the procedural defects in the hearings of administrative authorities. Procedure is also simplified.
India
The administrative procedure in our country is not governed by a single Act. The procedures are laid down in the statutes creating the administrative organs. The procedures thus prescribed are not uniform. They are in respect of adjudication of disputes, as well as review of administrative decisions, are diversified. A few randam examples illustrate the point.
The Coconut Committee Act (1944) as amended in 194626 provides for an appeal to the District Judge or the Judge of the Small Causes Court by the assessee who feels aggrieved by an assessment made by the Government. The Central Silk Board Act (1948) provides neither for an appeal nor does it specifically exclude the iwricdiction of the Court. The Tea Board Act (1933) provides that no order of the Tea Board granting permission to plant tea on any land not planted with tea at the commencement of the Act shall be called in question in a Court27. The Indian Telegraphs (Amendment) Act, 1957 makes provision for arbitration for settlement of disputes that might arise between government and sub-scribers28. All disputes are to be referred to an arbitration appointed by the Central Government and his award is conclusive and cannot be called in question in any Court. Under the Trade and Merchandise Marks Act. 1958, provision for appeal to the High Court is made29. Regarding hearing requirements the Moter Vehicles Act, 1939 itself presents procedures varying from no hearing to Court-like procedures.
In the case of disqualification to hold a driving licence, the Act requires that before the order is passed the party is to be "given an opportunity of being heard,30 whereas in licence issuance, renewal and revocation proceedings, the Act requires that the person is to be given in writing the reasons for the administrative action.3l Even in the hearing procedure for disqualification of driving licence the Act is silent regarding the kind of notice and hearing to be given of matters in issue. The Act does not require the Regional Transport .Authority to give any hearing before disqualifying a person for holding a licence for a specified period to drive a public service vehicle though reasons for its action are demanded 32. In the case of licences to stage carriage conductors, the Act does not contemplate any hearing procedure either for disqualification, renewal or revocation proceedings.33 In the case of refusal to register a vehicle no opportunity to make any representation is provided.34 A full-fledged hearing is assured to the party where suspension of registration is contemplated on the ground that a vehicle has been used for hire without a valid permit.35
From the brief summary it is quite obvious that no particular design is followed in prescribing hearing procedures or review of administrative decisions. At one extreme an appeal from an administrative decision to the High Court is permitted and at the other extreme resort to judicial review is sought to be curtailed by making the administrative decision final. The disparity is no less marked in regard to hearing procedure,
The Indian Law Commission rscom mended that the administrative decisions should be accompanied by reasons so that their validity may be tested by the machinery of appropriate writs. The tribunals delivering administrative decisions are required to act in conformity with the principles of natural justice and with openness, fairness and impartiality. In the case of judicial or quasi-judicial decisions an appeal on facts to an independent tribunal presided over by a person qualified to be a High Court Judge is necessary. On quesions of Law an appeal or revision to the High Court should be provided. The existing jurisdiction of the High Court and Supreme Court enabling them "to examine to a limited extent the action of the administrative bodies should be maiotained unimpaired." A simple procedure embodying the principles of natural justice applicable to all the tribunals in the absence of special provision in the statutes constituting the tribunals was emphasised.36
Conclusion
Though a perfect code of administrative procedure is neither feasible nor desirable, a code applicable to a majority of cases is possible, as there are certain fundamentals of just procedure which are the same for every type of tribunal and proceeding. To formulate uniform rules for many aspects of administrative proceduire is feasible and desirable. Implementation o the recommendations of our law commissio may be hoped to be a long stride to ware systematising administrative practices an procedures. Legislation on the pattern o the American Administrative Procedure Act, embodying the recommendations of our law commission, is necessary.

Author Name: A V Krishna MurtyÂ