Judicial Function: The Test for Identifying Judicial Function from Other Classes of Function in India

Judicial function:

The functions of an Authority may be judicial or administrative. One person may at one time and in one capacity perform judicial functions, whereas act another time and in another capacity perform administrative functions. The vesting of the two types of functions in one person has always been deplored and called undesirable.

In some countries, rigid separation of powers has been effected by written Constitutions. Take, for instance, the Australian Constitu­tion.

Section 71 of the Commonwealth of Australian Constitution Act (63 and 64 Vict. Chapter 12) provides that the judicial power of the Commonwealth shall be vested in a Federal Supreme Court to be called the High Court of Australia and in such other federal Courts as the Parliament creates and such other courts as it invests with federal jurisdiction.

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The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the parliament prescribes. The scheme of Sections 71 to 80 which form part of Chapter III of the said constitution is that the judicial power of the State can be conferred only on courts recognized by the provisions of the said Chapter.

In other words, it is not competent for the Legislature in Australia to confer judicial power properly so called on anybody or authority other than or apart from the Court recognised by Chapter III, and, therefore, the use of the expression “judicial power” of its conferment in regard to tribunals which are not Courts properly so called would, under the Australian Constitution, be wholly inap­propriate.

If any tribunals other than Courts are established and power is given to them to deal with and decide special disputes between the parties, the power which such tribunals would exercise cannot be described as judicial power but would have to be called quasi-judicial power.

Under the Constitution of India, there is not rigid separation of powers as under the Australian Constitution. Therefore, in India it is not constitutionally inappropriate or improper to say that judicial power of the State can be conferred on the hierarchy of Courts estab­lished under the Constitution of India as well as on the tribunals which are not Courts strictly so-called.

Indeed the fact that Article 136 (1) of our Constitution, refers to Courts and tribunals and makes the determination, sentence or order passed by them subject to appeal to the Supreme Court by special leave, shows that our Constitution assumes, that judicial power of the State can be vested in, and exercised by both Courts and tribunals alike.

The functions discharged by the Courts and the Tribunals men­tioned in Article 136 (1) is essentially the same, though the following may be different:-

(a) The nature of the questions entrusted to their jurisdiction.

(b) The procedure required to be followed by them, and

(c) The extent and character of their powers.

Though the Indian Constitution is based on a broad separation of powers, there is no rigidity or exclusiveness involved in it as under the Australian Constitution, and, therefore, the main test in determin­ing the status of any authority, in the context of Article 136 (1) is whether or not inherent judicial power of the State has been trans­ferred to it.

Tests for identifying a Function to be Judicial:

Since a writ of certiorari can be issued only to correct the errors of a court or a quasi-judicial body, it follows that the real and determining test for ascertaining whether an act authorised by a statute is a quasi-judicial act or an administrative act, is whether the statute has expressly or impliedly imposed upon the statutory body the duty to act judicially as required by the above third condition.

The question whether or not there is a duty to act judicially, must be decided in each case in the light of the cir­cumstances of the particular case and the construction of the par­ticular statute with the assistance of the general principles laid down in judicial decisions (ibid).

The principles deducible from the various Judicial decisions considered by the Supreme Court in the case of Province of Bombay v. Khusaldas S. Advani, A.I.R. 1950 S.C.222: (1950) S.C.R. 621 are formulated thus:

(a) If a statute empowers an authority, not being a Court in the ordinary sense, to decide disputes arising to it of a claim made by one party under the statute which claim is op­posed by another party and to determine the respective rights of the contesting parties who are opposed to each other there is a list and prima facie and in the absence of anything in the statute to the contrary, it is the duty of the authority to act judicially and the decision of the authority will be a quasi-judicial act; and

(b) If a statutory authority has power to do any act will prejudicially affect the subject, then, although there are not two parties apart from the authority and the contest is be­tween the authority proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasi- judicial act, provided that the authority is re­quired by the statute to act judicially.