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FUNCTIONING OF ADMINISTRATIVE COURTS IN INDIA AND GERMANY: A COMPARATIVE ANALYSIS

The blog is authored by, Rachita Agrawal, and Rajat Dayal ,LLM Candidates at National Law University, Delhi.

Header Image Credits: Pexels Free Photo


Introduction

Administrative law is a branch of public law that focuses on public administration, through administrative courts the disputes concerning the exercise of public power are settled. These courts are considered different from other general courts. Administrative courts are concerned with the litigation between a citizen and a state organ in an administrative context. The need for the establishment of administrative courts arises due to increasing burden on ordinary courts. The ordinary courts were not well equipped to handle specific cases dealing with administrative functions. Administrative courts are equipped with experts who can handle the dispute technically in a systematic, inexpensive and speedy manner. The members of the administrative courts are specialized in their subject and thus are able to solve the disputes by in depth examination of facts and evidence. Accordingly, several countries have adopted the concept of administrative courts. Administrative Courts are introduced in addition to general courts and have a separate system where general and administrative systems do not have jurisdiction over each other.

In India, the provisions relating to Administrative Tribunals are contained in Article 323A of the Constitution of India[1] and are established as per Administrative Tribunals Act, 1985[2]. In Germany, the Federal Administrative Court which is the supreme administrative court in the Federal Republic of Germany was established in 1953 and the Federal legislature passed the Act on the Federal Administrative Court (Gesetz über das Bundesverwaltungsgericht) of 23 September 1952. This paper analyses the functioning of administrative courts in India and Germany and a comparative analysis of scope and functioning of administrative courts in both the countries.

LITERATURE REVIEW

A significant amount of literature is available on the system of administrative courts in India and Germany. These are mainly carried out focusing their individual systems, lacunas and framework reforms. The research applicable to the current study was briefly examined to gain awareness of the work already done on the administrative court system with emphasis on India and Germany.

Assessment of Statutory Frameworks of Tribunals in India, Law Commission of India (Report No.272) considered working of tribunals in India and analysed the provisions in the existing legal framework constituting the tribunal. It provides recommendations to improve the working of the tribunal system in the country.

Adjudication By Tribunals in India: Landmark in the Field Of Natural Justice, R.C. Saksena traces changes in judicial procedure with introduction of tribunals by way of constitutional amendment along with the need of establishing tribunals law to address the growing problems arising out of multitudinous activities of the modern government.

Constitutional Status of Tribunals, K.C. Joshi discusses the constitutional provisions and judicial precedents governing the administrative tribunal structure in India. Also, Administrative Tribunals in India the Lights of The Decided Cases-in Constitutional Analysis, Shruthi Taarana and R. Dhivya elaborately states the provisions related to functioning of administrative tribunals in India and how judicial decisions evolved.

Urs Kramer and Tim Hinrichsen in their article titled ‘German Law of Administrative Court Procedure: and Overview’ has extensively dealt with the scope, powers, and functioning of administrative courts in Germany. The said article analyses in detail the provisions contained in the Code of Administrative Court Procedure. The authors are of the view that the German law of administrative jurisdiction has a homogeneous structure drafted in a way that is easy to understand in general but hard to handle in detail.

Rights of the Individual to Challenge Administrative Action before Administrative Courts in France and Germany’ an article authored by Hans Gerald Crossland examines the origin of administrative jurisdictions in France and Germany. The literature further analyses the difference between the two systems on the basis of application and concept. The article rightly concludes that despite several variations in the law, the ultimate aim of administrative jurisdiction of both the countries is to ensure that the administrative actions are scrutinized so that a balance is maintained between the rights of the administrative authorities to act with discretion with the protection of individual’s right and respect of justice.

Further, for analysing the scope, powers, and procedure of administrative courts in Germany it is pertinent to refer to the Code of Administrative Court Procedure established in 1960. The Code contains five parts that deal with courts constitution, procedure, appeals and resumptions of the proceedings, cost and execution, and transitional provisions related to administrative courts; these parts are divided into 17 chapters that are further divided into 195 sections.

In India apart from constitutional provisions setting up tribunals, the relevant statute for conducting this study is Administrative Tribunals Act enacted in 1985 is refereed. The Act contains five chapters that deal with Preliminary, Establishment of Tribunals and Benches, Jurisdiction, Powers and Authority of Tribunals, Procedure and Miscellaneous provisions; these are divided into 37 sections.

Thus, the existing available literature as reviewed above has mainly focused on the nature of administrative courts in India and Germany operating in their respective ambit. However, there is a lack of a comprehensive study on the comparative analysis of Indian and German functioning of administrative Courts. Hence, this study attempts to unreveal this aspect of administrative law.

ADMINISTRATIVE COURTS IN GERMANY

The legal system of Germany has five distinct jurisdictions namely; ordinary jurisdiction, labour jurisdiction, social jurisdiction, fiscal jurisdiction, and administrative jurisdiction. The administrative court jurisdiction decides matters relating to public law that are not related to constitutional law. Administrative jurisdiction can be invoked when the decisions or orders passed by the administrative or executive authorities are illegal, arbitrary or violates the rights of the person aggrieved. In addition, Germany has established various special administrative courts for particular areas of administrative law such as the Bundeswehr (German armed forces) Disciplinary and Complaints Court, Courts for certain professions and the Federal Patent Court.[3] The law of land provides that the federation shall establish the Federal Administrative Court as supreme court of administrative jurisdiction.[4]

In Germany, the administrative jurisdiction has been subdivided at district, state and central level. However, the basic principle is the same that governs the validity, invalidity or revocability of administrative acts and grants relief and damages in relation to the conduct of public authorities. The most conspicuous side of this is probably the declaration made in 1959 by the then president of federal administrative code administrative law is a concretized constitution. The broad norms and concepts of administrative law have evolved primarily in academic literature and judicial judgments. After World War II, Germany’s administrative court system grew to be extremely thorough.

ADMINISTRATIVE TRIBUNAL IN INDIA

Originally, tribunals were not in the Indian Constitution, but, with introduction of Part XIV-A by the 42nd Constitution Amendment[5] they were added. During the prime ministership of Indira Gandhi, this was a sort of mini constitution, because it had many dictatorial tendencies, obviously when other government came in 1977, they brought the 44th Amendment Act 1978 which extended superintendence of high courts over the tribunals. There are two articles constituting Part XIV-A, one is article 323A dealing with administrative tribunals focused on public service matters and other is 323B providing tribunals for other matters such as Taxation, Industrial and labour, Foreign exchange, import and export, Land reforms and many more as mentioned in constitution.  Few of such tribunals for other matters established under 323B includes National Green Tribunal[6], Competition Appellate Tribunal (COMPAT)[7], Securities Appellate Tribunal (SAT)[8], etc. Parliament has the power to establish administrative tribunals under 323A, unlike tribunals under 323B that can be established by both the Parliament and the State Legislature[9].

The objective of constituting tribunals on recommendations of the Swaran Singh Committee Report 1976 includes delivering speedy and inexpensive adjudication of disputes in various matters.[10] The amendment intended to reduce the mounting arrears in the High Courts and ensure the prompt resolution of service issues, tax matters, and other matters of particular interest in the socio-economic sense. In the interests of growth and development, it was deemed appropriate to establish administrative and other tribunals to deal with certain issues while retaining the Supreme Court’s jurisdiction. Modern administration requires expertise, knowledge, specialization in relevant fields which can be addressed through tribunals.[11] As courts traditionally established are only equipped with legal procedures and knowledge while adjudicating the disputes. In Kamal Kanti Dutta v. Union of India,[12] it was observed that:

‘Public servants ought not to be driven or required to dissipate their time and energy in court-room battles. The proceedings of such Tribunals can have the merit of informality and if they will not be tied down to strict rules of evidence, they might be able to produce solutions which will satisfy many and displease only a few.’

COMPARATIVE ANALYSIS OF FUNCTIONING OF ADMINISTRATIVE COURTS IN INDIA AND GERMANY

The Code of Administrative Court Procedure (hereinafter referred to as ‘Code’) was enacted in 1960 in Germany and since then it has been amended various times. The Code expresses the administrative jurisdiction exercised by courts from the administrative authorities.[13] Under German law, disputes are being heard at three levels; Administrative court, Higher Administrative court and the Federal Administrative Court. The first two organs are installed at district and state level respectively and the third one is established at central level in the city of Leipzig.[14]

Section 14 of the code provides for legal and administrative assistance to the courts of administrative jurisdiction by all the courts and administrative authorities. This provision is in consonance with the provisions of Basic Law for the Federal Republic of Germany which provides for legal and administrative assistance.[15] Further to ensure separation of power the courts of administrative jurisdiction are prohibited from exercising any administrative power outside the court. Administrative courts can litigate all public – law disputes of a non-constitutional matter and which are not explicitly under the jurisdiction of other courts by a federal statute.[16]

In India, The Administrative Tribunals Act of 1985 created the Administrative Tribunal[17]. The tribunal is in charge of adjudication or trials of matters relating to staff appointment and terms of service in India’s public sector for originating an efficacious alternate institutional mechanism or authority for specific judicial cases.[18] The Administrative Tribunals Act, 1985 is a legislation[19] in terms of article 323A intended to take away the jurisdiction of the High court for resolution of public service disputes under Article 226 and 227, except the jurisdiction of the Supreme Court under Article 136 of constitution. Appeals lies to the Supreme Court from orders of an Administrative Tribunal, by special leave under Art 136 on the following grounds such as error of law, finding of the Tribunal being perverse, the order of the Tribunal being without jurisdiction or ultra vires, the order of the tribunals being arbitrary or mala fide or it would lead to grave injustice. However, through amendment is Article 227[20], every high court superintendence over all courts and tribunals was instated.

Composition & Appointment

In administrative courts, disputes are heard before chambers composed of three judges and two honorary unless a single judge adjudicates. Honorary judges shall not participate unless an oral hearing takes place or in the exceptional case.[21] Further, in case of Higher Administrative Court[22] and the Federal Administrative Court[23], senates shall be formed which shall comprise of three and five judges respectively. Higher Administrative Court level courts do not have honorary judges unless otherwise stated by the law of a Land in respect thereof.

A representative of the interest of the federation at federal administrative court is appointed by the federal government who shall have a right to make a statement before the Federal Administrative court. Similarly, a representative of public interest may be appointed at the Higher Administrative court and at the administrative court that shall have the right to make a statement before the court.[24]

In India, a tribunal shall consist of Chairman and such number of judicial and administrative members as appropriate Government may deem fit.[25] They are appointed by the President after consultation with the Chief Justice of India in the case of Central tribunals[26] and by the President in consultation with the Governor or Governors in case of State or joint Tribunals[27].

Jurisdiction

Further, chapter 6 of the Code deals with Recourse to the administrative courts and jurisdiction and provides rights of the courts to adjudicate. The Administrative courts can adjudicate on all disputes for which recourse to the administrative court is available. The Higher Administrative Court shall adjudicate on appeal filed on fact and law against judgments of the administrative court and shall adjudicate on complaint filed against the other decisions of the administrative court. Further, the Federal Administrative Court shall rule on appeals on points of law against judgments of the Higher Administrative Court, appeals on points of law against judgments of administrative courts, and other complaints filed as per Section 46(3) of the Code.

An administrative court has territorial jurisdiction over any act of the administration commenced within its district and actions against any defendant whose seat or place of residence lies within its district.[28]

In India, jurisdiction, powers and authority of the Central Administrative Tribunal extends to the matters of recruitments concerning Union under section 14 of the act, similarly in case of State administrative tribunals jurisdiction extends to matters concerning recruitment, to any civil service of the State or to any civil post under the State[29]. A Joint Administrative Tribunal for two or more States is entrusted with all the jurisdiction, powers and authority as exercisable by the administrative tribunals for such States.[30]  Suit of proceeding within the jurisdiction of respective administrative tribunals before its establishment will be transferred to it under S.29 of the Act, except to the appeals pending in High courts. Section 29A (inserted in 1986) gives an appellate jurisdiction of the Central Administrative Tribunal. Appeals from judgement of Civil Courts in suits relating to service matters which are now governed by the A.T. Act shall lie to the Administrative Tribunals to the exclusion of any other Civil Appellate Court or the High Court.[31]The Tribunal has been conferred the power to exercise the same jurisdiction and authority regarding contempt of itself as a High Court.[32]

Proceedings

Proceedings under the German Administrative courts are not commenced ex-officio. The plaintiff must file a claim or application for initiation of proceedings. However, the court is empowered to investigate the facts of the case ex-officio. Admission of evidence during the hearing can be rejected only by passing a seasoned court order.[33]

Indian ordinary courts have to follow a uniform code of procedure for civil and criminal cases, in contrast to this administrative tribunals in India have no formal procedural code[34] and are based on the principle of natural justice[35]. In Disciplinary matters, the tribunal is competent to go into the facts and set aside the order passed by a disciplinary authority where the conclusion arrived at is arbitrary or perverse. In M.P. Industries Ltd. vs. Union of India,[36] Subba Rao J. observed: Arbitrariness in their functioning destroys the concept of a welfare state itself. A reasoned order is a desirable condition of judicial disposal. The tribunals are invested with powers conferred on civil courts by CPC in respect of summoning of witnesses and enforcement of attendance, discovery and inspection, production of documents, etc.[37] The proceedings of administrative tribunals are deemed to be judicial proceedings for the purposes of sections 193, 195 and 228 of IPC and sections 345 and 346 of CrPC.[38] However, as per pendency of cases in some of the Tribunals is reminiscent of the fact that the purpose of establishing Tribunals is not attained.[39]

Who can be a party to the proceedings?

Proceedings before administrative courts in Germany can be initiated by natural persons, bodies corporate, and associations having an entitled right. In case of land laws authorities can also initiate a proceeding. Further, the Code provides that association and authorities shall be represented by their legal representatives and boards.[40]

The jurisdiction of a specific tribunal in India for submitting an application is decided on the place where the applicant is currently stationed or where the cause of action arose, in whole or in part. The place of residence shall be the deciding element in determining the jurisdiction of the bench in the case of those who are not currently in service, such as those who have been retired, dismissed, or otherwise.[41] In the event of a disagreement, the Chairman of the CAT in Delhi shall have the last say.

Preliminary review provisions and Appeal

The Code provides for a preliminary review by the administrative authority to examine the lawfulness and expedience of administrative actions. However, in some cases the preliminary proceedings are not required. The purpose of providing such a review is to settle the dispute without invoking judicial actions. The preliminary proceedings must commence after filing of objection by the plaintiff.[42]

Further, an opportunity of being heard is provided to the party concerned while hearing the objection proceedings. If the authority considers the objection to be well-founded, it shall remedy it and rule on the costs.

The rescission and enforcement action in respect of any administrative act can be requesting by initiating a claim or an application and such action shall be admissible only if the plaintiff claims that the actions of the administrative authorities has violated his rights.[43] The rescissory action is invoked when the administrative actions violate the plaintiff’s rights and the enforcement action is invoked when the non-action of the administrative authorities contradicts the law and violates the plaintiff’s rights.

Initially the decision of the Tribunal could be challenged before Hon’ble Supreme Court of India by filing a Special Leave Petition under article 136. In S.P. Sampath Kumar v. Union of India,[44] the validity of Administrative Tribunals Act, 1985 was challenged on the ground that excludes power of judicial review of courts in service matters. The five-judge bench of the Supreme court upheld the validity and observed that the jurisdiction of the supreme court is kept unscathed. It was observed that administrative tribunals were the real substitutes of the High Court’s de jure as well as de facto in regards to the matters to be dealt with by them.[45] However, after L. Chandra Kumar v. Union of India,[46] orders of the Central Administrative Tribunal are now being challenged by way of Writ Petition under Article 226/227 of the Constitution before respective High Court in whose territorial jurisdiction the Bench of the Tribunal is situated.[47]

CONCLUSION

Tribunals are supposed to serve as alternative institutional mechanisms to high courts; they must therefore be able to inspire public confidence by proving themselves to be a competent and expert mechanism with a judicial and objective approach. In order to achieve this, it is essential that members of the tribunal are equipped with adequate judicial acumen and expertise. These judicial officers need to be balanced with experts in the particular field. Whole purpose of constituting tribunals will be defeated if measures are not reserved to maintain the independence of the members of these tribunals from political or executive interference. Just as the ordinary judiciary are protected from political control through security of tenure and through institutionalized methods of appointment (through a selection committee composed of the Chief Justice, Departmental secretaries, etc.) in order to further reduce the burden of high court. Conclusively, the Indian system can learn from German approach in many different ways to secure a fundamentally strong accountable administrative court framework. The approach of both the countries is different but the ultimate aim is to ensure transparency of administrative actions. Jurisdictions guaranteeing fundamental rights are very much pervasive, and administrative law has been carefully analyzed. So German courts have developed a number of cross cutting principles that are designed to limit administrative action to the benefit of individual liberties like principles of proportionality, equality, legitimate expectations; applicability of which can be seen in Indian context as well. Administrative law is now recognised as an academic field and a practical reality in both the common-law and continental worlds.

BIBLIOGRAPHY

Journal Articles

  • Hans Gerald Crossland, Rights of the Individual to Challenge Administrative Action before Administrative Courts in France and Germany, The International and Comparative Law Quarterly , Oct., 1975, Vol. 24, No. 4 (Oct., 1975), pp. 707-747
  • K.C. Joshi, Constitutional Status Of Tribunals, Journal of the Indian Law Institute, Vol. 41, No. 1 (January-March 1999), pp. 116-119
  • Kadri, Dr. Harunrashid, Superintendence Jurisdiction of High Courts over Administrative Tribunals,  Cochin University Law Review (2003)
  • R.C. Saksena, Adjudication By Tribunals In India : Landmark In Field Of Natural Justice, Journal of the Indian Law Institute, Vol. 37, No. 2 (April- June 1995), pp. 222
  • Shruthi Taarana, Administrative Tribunals In India The Lights Of The Decided Cases-in Constitutional Analysis, International Journal of Pure and Applied Mathematics Vol. 120, No. 5 (2018)
  • Urs Kramer and Tim Hinrichsen , German Law of Administrative Court Procedure: an Overview, Journal of Siberian Federal University. Humanities & Social Sciences 10 (2015 8) 2050-2061

Legislations/Regulations/ Rules

  • Basic Law for the Federal Republic of Germany
  • Code of Administrative Court Procedure, 1960
  • Constitution of India, 1950
  • The Administrative Tribunals Act, 1985 (13 of 1985)

Case Laws

  • Kamal Kanti Dutta v. Union of India, AIR 1980 S.C. 2056
  • L. Chandra Kumarv. Union of India, (1997) 3 SCC 261
  • M.P. Industries Ltd. vs. Union of India, AIR 1966 SC 671
  • S.P. Sampath Kumar v. Union of India,1987 SCR (3) 233

Reports

Assessment of Statutory Frameworks of Tribunals in India, Law Commission of India (Report No.272)

Web References


References

[1] This Article was introduced by the 42nd Constitutional Amendment Ac, 1976.

[2] Act No. 13 of 1985

[3] Available at https://www.bverwg.de/en, last visited 20.05.2021

[4] Article 95: Supreme federal courts, Basic Law for the Federal Republic of Germany

[5] Constitution (Forty-second Amendment) Act, 1976, s. 46 (w.e.f. 3-1-1977)

[6] National Green Tribunal was established on 18.10.2010 under the National Green Tribunal Act 2010 for effective and expeditious disposal of cases relating to the environment.

[7] COMPAT (Competition Appellate Tribunal) was established under the Competition Act of 2002 along with CCI. It was set up by the Centre in 2009, to hear appeals from a decision of the CCI.

[8] It is a statutory body established to hear and to dispose of appeals against orders passed by SEBI or by an adjudicating officer under the provisions of the Securities and Exchange Board of India Act, 1992.

[9] Art. 323B (1), Explanation

[10] Justice J.C. Shah Committee, popularly known as The High Courts’ Arrears Committee, 1969 also pointed out that independent Tribunals are necessary establishments required in view of huge writ petition pendency in Supreme Court and high courts with respect to public service matters

[11] R.C. Saksena, “Adjudication by Tribunals in India” Vol. 37 No. 2 JILI 223 (1995)

[12]  AIR 1980 S.C. 2056

[13] Section 1, The Code of Administrative Court Procedure

[14] Section 2, The Code of Administrative Court Procedure

[15] Article 35, Basic Law for the Federal Republic of Germany

[16] Section 40, The Code of Administrative Court Procedure

[17]  S. 3 (aa), The Administrative Tribunals Act, 1985 (13 of 1985) defines “Administrative Tribunal”, in relation to a State, means the Administrative Tribunal for the State or, as the case may be, the Joint Administrative Tribunal for that State and any other State or States

[18] S.14, The Administrative Tribunals Act, 1985 (13 of 1985)

[19] The Act provides for the establishment of three kinds of administrative Tribunals: The Central Administrative Tribunal, The State Administrative Tribunals and The Joint Administrative Tribunals

[20]  Constitutional (Forty-fourth Amendment) Act 1978, sec 31(a) w.e.f. 20-6-1979

[21] Section 5, The Code of Administrative Court Procedure

[22] Section 9, The Code of Administrative Court Procedure

[23] Section 10, The Code of Administrative Court Procedure

[24] Chapter 4: Representative of the public interest, The Code of Administrative Court Procedure

[25] S. 5(1), The Administrative Tribunals Act, 1985 (13 of 1985)

[26] S. 6 (3), The Administrative Tribunals Act, 1985 (13 of 1985)

[27] S. 6(4), The Administrative Tribunals Act, 1985 (13 of 1985)

[28] Section 52, The Code of Administrative Court Procedure

[29] S. 15, The Administrative Tribunals Act, 1985 (13 of 1985)

[30] S. 16, The Administrative Tribunals Act, 1985 (13 of 1985)

[31] Union of India v. Deep Chand Pandey (1992) 4 SCC 432

[32] S.17, The Administrative Tribunals Act, 1985 (13 of 1985)

[33] Section 86, The Code of Administrative Court Procedure

[34] Structures, Powers And Procedure of Administrative Tribunals, available at https://www.legalbites.in/structures-powers-and-procedure-of-administrative-tribunals/#powers, last accessed on 21-05-2021

[35] As observed by the Law commission in its 14th report (1958) that administrative tribunals performs quasi-judicial functions and they must act judicially.

[36] AIR 1966 SC 671

[37] Administrative Tribunals in India available at http://www.legalserviceindia.com/legal/article-4249-administrative-tribunals-in-india.html#:~:text=The%20proceedings%20of%20administrative%20tribunals,the%20principles%20of%20natural%20justice, last accessed on 21-05-2021

[38] Ibid.

[39] Assessment of Statutory Frameworks of Tribunals in India, Law Commission of India (Report No.272)

[40] Section 61, The Code of Administrative Court Procedure

[41] Study Material on Handling of Litigation In Government – A Synopsis, Institute Of Secretariat Training & Management, GOI

[42] Section 68, The Code of Administrative Court Procedure

[43] Section 42, The Code of Administrative Court Procedure

[44] 1987 SCR (3) 233

[45] Supra note 35

[46] (1997) 3 SCC 261

[47] Introduction, available at http://www.cgatnew.gov.in/writereaddata/Delhi/docs/Introduction.pdf,, last accessed on 21-05-2021

Views expressed are personal.

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