Classification of Administrative Functions

The whole of Module II's first half is about this function: how it may lawfully be conferred, what its limits are and how it is controlled.

2. The judicial or quasi-judicial function, or adjudication

The authority determines a question affecting the rights of an identified person, on the basis of facts found and law applied.

A purely judicial function is what a court performs: there are two contending parties, a dispute of fact or law between them, the decision is on evidence, and the body is bound to decide according to law.

A quasi-judicial function is performed by a body which is not a court but which is under a duty to act judicially. The word "quasi" is Latin for "as if". The classical Indian test comes from Province of Bombay v. Kusaldas S. Advani, AIR 1950 SC 222.

The marks of a quasi-judicial act are: an identified person whose rights or interests are affected, a decision reached after considering the matter, and an element of discretion exercised on legal principle rather than pure policy.

3. The administrative or executive function

The authority acts, in furtherance of policy, without either laying down a general rule or determining a dispute. Examples: making an appointment, granting or withholding a subsidy, requisitioning property, transferring an officer, issuing a departmental circular, launching a scheme.

The marks of an administrative act are: it is based on policy and expediency rather than on the application of legal rules to found facts; it need not be preceded by any lis; and it usually affects an individual.

The fourth: the ministerial function

Most writers add a fourth, and MU's reading list includes writers who do, so it belongs in an answer.

A ministerial function is one in which the authority has no discretion at all: the law tells it what to do and it must do it, on the existence of a stated fact. Making an entry in a register, issuing a certificate on production of the prescribed documents, paying a sum the statute directs to be paid. There is nothing to challenge except a refusal to act, and the remedy for that is mandamus.

A worked example: one authority, four functions in a week

The Municipal Commissioner of a city has powers under a Municipal Act.

Monday. He makes bye laws prescribing the hours during which loudspeakers may be used in the city. General, prospective, applying to everybody. Legislative.

Tuesday. He decides an objection by Mr Fernandes that his property has been wrongly assessed to property tax, after hearing him and his valuer. An identified person, rights affected, decision after considering evidence. Quasi-judicial.

Wednesday. He decides to build the new market on the eastern plot rather than the western one, because the eastern plot is nearer the highway. Policy, expediency, no lis. Administrative.

Thursday. He signs the birth certificate of a child whose birth has been registered, the statute providing that the certificate shall be issued on application. No discretion at all. Ministerial.

Friday. He cancels the licence of a hawker for repeated obstruction. Which is it? An identified person and rights affected point to quasi-judicial; the fact that he acts on inspection reports rather than on a hearing between contending parties points to administrative. The answer since 1969 is that the label matters much less than it used to, because either way he must act fairly and give the hawker a chance to be heard. That is the point of the next chapter.

The classification is not watertight, and the courts have said so

An answer that presents the three categories as sharp boxes will lose marks, because the leading Indian case says the opposite.

Facts. A.K. Kraipak v. Union of India, AIR 1970 SC 150, concerned selection to the Indian Forest Service from officers of the Jammu and Kashmir forest department. A Special Selection Board was constituted, and one of its members was the Acting Chief Conservator of Forests, who was himself a candidate and who had obtained his acting post by superseding another Conservator whose appeal 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. He was placed at the top of the list; three of his 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: they do not supplant the law but supplement it. There is no reason why they should not apply to administrative proceedings as well as quasi-judicial ones, especially as 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 particular rule of natural justice applies depends on the facts, the framework of the law, and the constitution of the body concerned. The requirement 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; and although he did not sit when his own name was considered, his participation when his rivals were considered and when the list was prepared must have influenced the result, because in group discussion each member influences the others in a subtle way without their being aware of it. The selection was not made fairly and justly.

Why it matters here. It is the case that broke the classification open. Before it, a decision had to be shown to be quasi-judicial before natural justice would attach. After it, the duty to act fairly attaches to administrative action too, and the energy that used to go into classifying a function goes instead into asking what fairness requires in the particular case.

What survives of the classification after 1969

Something important survives, and a strong answer says what.

1. The legislative and non-legislative divide still matters a great deal. Natural justice does not attach to rule making, because a rule affects a class and not an identified person. When a Government makes a rule it does not have to hear everybody the rule will bind. That distinction is alive and it decides real cases.
2. The remedy still follows the classification. Certiorari quashes a determination; mandamus commands the performance of a duty; the choice between them still turns on what kind of act is complained of: [Judicial Remedies against Administrative Arbitrariness: the Writs].
3. The duty to give reasons attaches more strongly to a determination than to a policy decision.
4. What has faded is the natural justice consequence of the line between quasi-judicial and administrative, which is exactly what Kraipak decided.

Distinctions in one table

What it does NOT mean

It does not mean a function has a fixed label for all purposes. The same act may be treated as administrative for one purpose and as attracting a duty of fairness for another. The question is always what consequence is being argued for.

It does not mean administrative action escapes control. That was the position the classification produced before 1969 and it is precisely what Kraipak rejected.

It does not mean quasi-judicial bodies are courts. They are not, and the difference is set out in [Tribunal and Court Distinguished].

Quick revision

1. Three functions: legislative, or rule making; judicial and quasi-judicial, or adjudication; administrative, or executive action. A fourth, ministerial, has no discretion.
2. Legislative: general, prospective, no identified person. Quasi-judicial: identified person, rights affected, duty to act judicially. Administrative: policy and expediency, no lis. Ministerial: no choice.
3. The classification matters because natural justice, reasons, the choice of writ and the standard of review all depend on it.
4. Province of Bombay v. Kusaldas S. Advani, AIR 1950 SC 222, supplied the test of the duty to act judicially.
5. A.K. Kraipak v. Union of India, AIR 1970 SC 150, held that the line between administrative and quasi-judicial enquiries is not easy to draw and that natural justice applies to administrative proceedings too.
6. What survives: legislative against non-legislative is still decisive; the remedy still follows the classification; reasons attach more strongly to determinations.

Test yourself

1. Classify the functions of administrative authorities and explain the importance of the classification. They are classified as legislative, where the authority makes a general rule for the future applying to a class; judicial or quasi-judicial, where it determines a question affecting the rights of an identified person after considering the matter, being under a duty to act judicially; and administrative or executive, where it acts on grounds of policy and expediency without laying down a rule or determining a dispute. A fourth category, ministerial, covers acts in which there is no discretion at all. The classification is important because different consequences follow: natural justice and reasons ordinarily attach to a quasi-judicial determination but not to rule making; certiorari and prohibition lie against a determination while mandamus lies to compel the performance of a duty; and the standard of review differs.

2. Has the classification lost its importance? Give reasons. It has lost part of it. Before A.K. Kraipak v. Union of India, AIR 1970 SC 150, everything turned on classifying a decision as quasi-judicial, because natural justice attached only there. Kraipak held that the line between administrative and quasi-judicial enquiries is not easy to draw and that natural justice applies to administrative proceedings as well, so a duty to act fairly now attaches to administrative action. What survives is significant: the divide between legislative and non-legislative still decides whether a hearing is required at all, the choice of writ still follows the nature of the act, and the duty to give reasons attaches more strongly to a determination than to a policy decision.

3. Distinguish a ministerial function from an administrative function. In a ministerial function the authority has no discretion: the statute directs what is to be done on the existence of a stated fact, as where a certificate must be issued on production of prescribed documents. In an administrative function the authority has a choice and exercises it on considerations of policy and expediency. The consequence is that a ministerial act can be compelled by mandamus and there is nothing else to review, whereas an administrative act can be reviewed on the grounds applicable to discretion, such as improper purpose or irrelevant considerations.

4. A Municipal Commissioner makes bye laws on the use of loudspeakers, and separately cancels one hawker's licence. Classify each and state the consequences. The bye laws are a legislative function: a general rule, for the future, binding a class, with no identified person whose case is determined. Natural justice does not ordinarily apply, and validity is tested by the rules on delegated legislation, in particular whether the bye laws are within the parent Act and reasonable. Cancelling one hawker's licence affects an identified person's rights and is at least administrative and arguably quasi-judicial; on either view, after A.K. Kraipak v. Union of India, AIR 1970 SC 150, the Commissioner must act fairly, which means giving the hawker notice of what is alleged and an opportunity to answer, and ordinarily giving reasons.

5. What is meant by a quasi-judicial function? A function performed by an authority which is not a court but which, in determining a question affecting the rights of an identified person, is under a duty to act judicially. The test in 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; it is not necessary that there be a formal lis, or a right to examine and cross-examine witnesses, and the mere fact that an executive authority has to determine an objective fact before exercising a power does not make the determination judicial.