Distinguishing Legislative, Judicial, Quasi-judicial and Administrative Functions

Why it matters

Because natural justice attaches to the second and not to the first. A Government fixing prices need not hear every manufacturer; a Government ordering one manufacturer to refund must hear it. This is the single most useful consequence in the whole chapter.

Distinction 2: legislative and executive functions

This is the harder of the first two, and students confuse it with the first.

The test

A legislative act lays down a new general rule that binds; an executive act applies or carries out an existing rule, or acts on policy where the law leaves a choice.

The Indian starting point is Rai Sahib Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549.

Facts. Six persons who prepared, printed, published and sold school text books in Punjab petitioned under Article 32, complaining that the Education Department, pursuing a policy of nationalising text books, had issued a series of notifications from 1950 which restricted their right under Article 19(1)(g) and practically drove them out of the trade. They said such restrictions could not be imposed by executive orders without legislation.

Held. Mukherjea CJ said it may not be possible to frame an exhaustive definition of an executive function, and that ordinarily executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away. The Indian Constitution has not recognised the doctrine of separation of powers in its absolute rigidity, but the functions of the branches are sufficiently differentiated that no organ may assume functions essentially belonging to another. The executive may exercise subordinate legislative power when the legislature delegates it, and judicial functions in a limited way when empowered, but can never go against the Constitution or any law. It does not follow that a law must already exist before the executive can act, nor is executive power limited to carrying out existing laws. The petitions were dismissed.

Why it matters here. It supplies the definition of the executive function by subtraction, and it establishes that the executive may act without a prior statute so long as it does not infringe rights or contravene a law. That last point is the one students miss: an executive act is not invalid merely because no statute authorised it.

The practical indicators

The consequence, treated in [Sources of Administrative Law], is that a circular cannot do what a rule can. If the Act requires something to be done "by rules made under this section", a circular will not do.

Distinction 3: judicial and quasi-judicial functions

The test

A judicial function is performed by a court: there is a lis, meaning a dispute between two contending parties, the court is bound to decide it according to law on evidence, and it has the trappings of a court.

A quasi-judicial function is performed by a body outside the judicial hierarchy which is nevertheless under a duty to act judicially in determining a question affecting rights.

The Indian authority on the duty to act judicially is Province of Bombay v. Kusaldas S. Advani, AIR 1950 SC 222.

Facts. Section 3 of the Bombay Land Requisition Ordinance 1947 provided that if in the opinion of the Provincial Government it was necessary or expedient to do so, the Government might by order in writing requisition any land for any public purpose. The first respondent, a refugee from Sind, took an assignment of tenancy rights in a Bombay flat and went into possession. A few days later the Government requisitioned the flat under section 3, allotted it to another refugee and directed an Inspector to take possession. The High Court issued a writ of certiorari against the Province of Bombay, and a Division Bench confirmed it on appeal.

Held. By the Full Court, certiorari lies whenever a body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, acts in excess of that authority; it does not lie against an order that is administrative or ministerial. By the majority of four to two, on a proper construction of section 3 the Government's decision that the property was required for a public purpose was an administrative act and not a judicial or quasi-judicial decision, so the High Court had no jurisdiction to issue certiorari. Kania CJ said that merely because an executive authority has to determine objective facts affecting rights as a preliminary step to discharging an executive function, it does not follow that it must determine them judicially, and that the true test is whether the law under which the authority is making a decision itself requires a judicial approach. It cannot be laid down broadly that there must be a proposition and an opposition, or a lis, or a right to examine and cross-examine witnesses. Fazl Ali J put it that the mere fact that an executive authority has to decide something does not make the decision judicial: it is the manner in which the decision has to be arrived at that makes the difference, and the real test is whether there is a duty to decide judicially.

Why it matters here. It is the leading Indian statement of the test, and it shows the test being applied to defeat the claim. It also shows how much turned on the classification before 1969: because the act was administrative, certiorari did not lie at all, and the citizen had no remedy on that route.

The indicators

Then the line moved

Everything above describes the position as it was worked out before 1969. The classification was decisive, and a great deal of litigation was spent on it, because natural justice attached only to the quasi-judicial box.

Facts. A.K. Kraipak v. Union of India, AIR 1970 SC 150, concerned a Special Selection Board constituted to select officers of the Jammu and Kashmir forest department for the Indian Forest Service. One member of the Board was the Acting Chief Conservator of Forests, who was himself a candidate and had obtained his acting post by superseding another Conservator whose appeal against supersession was pending. He withdrew when his own name was considered but sat when his rivals' claims were considered and when the order of preference was settled. His name came top; three rivals were left out. The list went to the Home Ministry and then to the Union Public Service Commission, which examined the records afresh, and the Government notified it. Those left out petitioned under Article 32.

Held. The rules of natural justice operate in areas not covered by any validly made law and supplement rather than supplant it. There was no reason why they should not apply to administrative proceedings as well as quasi-judicial ones, especially because it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial ones, and an unjust decision in an administrative enquiry may have a more far reaching effect than one in a quasi-judicial enquiry. What rule of natural justice applies in a given case depends on the facts, the framework of the law under which the enquiry is held, and the constitution of the body. The rule that enquiries be held in good faith and without bias is part of natural justice. On the facts there was a conflict between interest and duty, and the member was a judge in his own cause; his participation when his rivals were considered and when the list was prepared must have had an impact, because in group discussion each member influences the others subtly without their being aware of it. The selection had not been made fairly and justly.

Why it matters here. It is the case that made the third distinction much less important than it had been. The question in a modern case is not "was this quasi-judicial?" but "what does fairness require here?"

A worked example: sorting one file

The State Electricity Regulatory Commission does four things about a distribution company, Konkan Power Limited.

1. It issues regulations prescribing the standards of supply that all distribution licensees must meet. Prospective, general, expressed by description. Legislative. Konkan Power cannot complain that it was not individually heard, though the statute may require consultation.
2. It issues a tariff order fixing the tariff Konkan Power may charge for the coming year, after a public hearing at which consumers and the company were heard. Here the correct answer is that it has elements of both: it applies to one identified licensee and follows a hearing, so it is at least quasi-judicial in the way it must be made, even though tariff fixing is often described as legislative in character. The safe treatment is to say that whatever the label, the duty to act fairly and to give reasons attaches, on the authority of A.K. Kraipak v. Union of India, AIR 1970 SC 150.
3. It decides a complaint by a consumer that Konkan Power overcharged him last year, after hearing both. Named parties, past facts, an existing rule applied. Quasi-judicial, and the full rules of natural justice apply.
4. It directs its own staff to inspect all substations in the district before the monsoon. Internal, policy, no rights determined. Administrative, and nobody is entitled to be heard.

What beginners get wrong

Thinking the number of people affected decides it. It does not. What decides it is whether the persons affected are described as a class or identified individually.

Thinking a body with no lis cannot be quasi-judicial. Kusaldas Advani says expressly that a lis is not necessary; the test is whether the law requires a judicial approach.

Thinking that after Kraipak the classification is dead. It is not. It still decides whether a hearing is owed at all in rule making, and it still decides which writ to ask for.

Thinking an executive act needs a statute behind it. Ram Jawaya Kapur holds otherwise: the executive may act without prior legislation so long as it does not infringe rights or contravene a law.

Quick revision

1. Legislative against judicial: rule for the future for a class, against determination of an existing dispute between named parties on evidence.
2. Class by description is legislative even if it contains one member; identification by name is not.
3. Legislative against executive: a new binding general rule, against carrying policy or an existing rule into effect. Executive power is the residue: Rai Sahib Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549.
4. Delegated legislation binds citizens and courts; an administrative circular binds only the administration.
5. Judicial against quasi-judicial: a court deciding a lis according to law, against a body outside the hierarchy under a duty to act judicially.
6. Province of Bombay v. Kusaldas S. Advani, AIR 1950 SC 222: the true test is whether the law under which the authority decides requires a judicial approach; a lis is not necessary; certiorari does not lie against a purely administrative order.
7. A.K. Kraipak v. Union of India, AIR 1970 SC 150: the line between administrative and quasi-judicial is not easy to draw and natural justice applies to administrative enquiries too.

Test yourself

1. Distinguish between legislative and judicial functions. A legislative function lays down a general rule of conduct for the future, binding a class of persons defined by description, made on grounds of policy, without hearing those affected and without a duty to give reasons. A judicial function determines an existing dispute between named parties by applying an existing rule to facts found on evidence, after hearing them, and ordinarily with reasons. The consequence is that natural justice attaches to the second and not ordinarily to the first, and that a rule is challenged as ultra vires the parent Act while a determination is quashed by certiorari. What matters is not the number of persons affected but whether they are defined by description or by identity.

2. Distinguish between legislative and executive functions. A legislative act creates a new general rule that binds citizens and courts as law; an executive act applies an existing rule or carries policy into effect. Executive power was defined in Rai Sahib Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549, as the residue of governmental functions remaining after legislative and judicial functions are taken away, and the Court held that the executive may act without a prior statute so long as it does not infringe rights or contravene any law. In practice the distinction shows itself in the difference between a rule made under a statutory rule making power, which must ordinarily be published and which binds everyone, and an administrative circular, which binds only the administration internally.

3. Distinguish between judicial and quasi-judicial functions. A judicial function is performed by a court, which decides a lis between contending parties according to law and on evidence and has the trappings of a court. A quasi-judicial function is performed by an authority outside the judicial hierarchy which is under a duty to act judicially in determining a question affecting rights; it is not bound by the law of evidence, it may take policy into account, and it has no contempt power unless one is conferred. The test of the duty to act judicially, from Province of Bombay v. Kusaldas S. Advani, AIR 1950 SC 222, is whether the law under which the authority decides itself requires a judicial approach; a lis is not necessary, and the mere fact that an executive authority must find an objective fact before exercising a power does not make the finding judicial.

4. "The distinction between administrative and quasi-judicial functions has lost much of its significance." Discuss. The proposition is broadly correct and its source is A.K. Kraipak v. Union of India, AIR 1970 SC 150. Before it, the rules of natural justice attached only to quasi-judicial acts, so a litigant had to place the decision in that box or lose. The Court held that natural justice supplements rather than supplants the law, that it is not easy to draw the line demarcating administrative enquiries from quasi-judicial ones, and that an unjust decision in an administrative enquiry may have a more far reaching effect. The result is a general duty to act fairly. The distinction retains significance in three respects: the legislative and non-legislative divide still decides whether any hearing is owed, the appropriate writ still depends on the nature of the act, and the duty to give reasons is stronger for a determination than for a policy decision.

5. A Government notification fixes the maximum retail price of a medicine. A separate order directs one company to refund excess collections. Classify each. The notification is legislative: it is prospective, applies to a class defined by description, rests on policy, and no individual's case is determined, so those bound by it are not entitled to a hearing and it is challenged, if at all, as being outside the parent Act or unconstitutional. The order is quasi-judicial: it identifies a particular company, rests on past facts, and applies an existing rule to determine liability, so the company is entitled to notice, an opportunity to be heard and reasons, and the order may be quashed by certiorari if those are denied.