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A Glance at Models of Administrative Adjudication

If we simply understand the literal meaning of the word administrative adjudication, it can be understood as the determination of any matter whether it is judicial or quasi-judicial nature by an administrative department or agency of the government. In this paper, the author explains the five models of administrative adjudication and the variables they consist of i.e., how they function in different countries with different variables.

The author emphasized the functioning of administrative adjudication i.e., every country provides beneficial or regulation schemes to their people i.e., subsidies, Government bank services, rules which govern the appointment and recruitment of Government servants, etc., and there are high chances of conflict between the Government/its agencies and the individuals availing or accessing those services/schemes and in that case need of an administrative adjudicator arises.

Most administrative adjudicative systems follow three phases that are initial decision-making, administrative reconsideration, and judicial review. To understand any administrative adjudication process, one must recognize the following four variables as suggested by Michael Asimow in his paper[1].

  • Is the adjudicatory body a combined functions agency or a separate tribunal?
    Combined function agency conduct investigation, prosecution, initial decision-making, and re-consideration whereas in the case of a separate tribunal it only reconsiders the decision but does not take part in the investigation or prosecution.
  • Are the proceedings inquisitorial or adversarial?
    Inquisitorial is a legal system in which the court/judge is actively involved in the investigation of the facts of the case whereas in an adverse system the court/judge plays a passive role in which the trial is separated from the investigatory part of the case.
  • Is judicial review open or closed?
    Open judicial review means whilst reviewing the judgment the court may allow the introduction of new evidence whereas in the closed judicial review no new evidence can be allowed.
  • Does a reviewing court have generalized jurisdiction or is it a specialized administrative court?
    It questions whether the review of the administrative decision is done by a special tribunal or by the general Higher Court.

Discussion of the following models of administrative adjudication that consist of different combinations of variables will elucidate the concept of administration adjudication:
Model 1: Adversarial hearing/combined function/limited judicial review
In the first model, the agency which makes the outset decision and reconsideration is the combined function agency. It means the initial decision is concluded by the hearing officer following the adversarial system in which, the hearing officer does not participate in the investigation but functions as an independent adjudicator, and the reconsideration of the initial decision is done by the same agency.

At a higher level, a systematic review is the closed judicial review of the agency decision by the general courts in which no new introduction of evidence/witness is allowed. In the USA many administrative adjudicatory separate tribunals and specialized separate agencies at the federal level are functioning, we can say the first model has a dominant position in the USA.

Model 2: Inquisitorial initial decision and reconsideration
Under model 2 administrative adjudication follows the inquisitorial procedure at the stage of initial decision and reconsideration. In European countries, the adjudication proceedings are inquisitorial rather than adversarial. For that instance, in cases of competition and merger the staff member of the director general for the competition of the European Commission (DG-COMP) which is referred to as a case handler, conducts an investigation, and writes down a statement of the object.

DG-COMP hears the parties on the statement of the object which is considered as a part of the investigation, thereafter the decision is submitted for comments/consultancy to other DG-COMPs subjecting to which later the result might be changed. The reconsideration of the decision is done by the College of Commission of the European Commission and the judicial review is done by the general court which is the closed judicial review.

Presently though hearing is conducted by an independent hearing officer and the main function rest with the case handler i.e., decision on merit, thereby the fundamental nature of the inquisitorial system remains the same. In my opinion, whatever the nature of the system whether inquisitorial or adversarial what is required is an effective and expeditious resolution of the conflicts. An independent administrative tribunal equipped with trained judges is the best approach for that purpose.

Third Model: Tribunal
It talks about the administrative adjudication system in the UK and other countries that are following this model are Canada and Australia. In the U.K. the beneficiaries and regulatory agencies make the initial decision. It can be said that at the stage of initial decision inquisitorial system is followed. But in the U.K. the reconsideration the of decision is done by an independent tribunal. In 2007 the U.K. enacted the Tribunal, Courts and Enforcement Act which causes a paradigm shift in the tribunal system.

It provides for the establishment of first tier tribunal which considers most of the agency's decision and the Tribunal which reconsider der such decision and provide the first level of a judicial review later review of the decision of the tribunal can also be exercised by the High Court but on the point of law and subject to other qualification. In my opinion, this model is a more efficient approach than other models as an independent tribunal deals with the conflict in a more pragmatic way than the courts, as courts are already burdened with other cases.

Model 4: Open judicial review
Under model 4 the administrative adjudication at an initial decision or reconsideration level is unstructured. An agency may provide an initial hearing but the final decision occurs at the level of judicial review. China, Japan, and Argentina are examples of countries that employ the variations of model four which provide open judicial review by the federal or the trial court as established by the government for that purpose. This model consists of the variations on which the court can decide any question of fact, or law arising before him whilst reviewing the decision of government lower\higher agencies.

Model 5: Open Judicial Review in Specialised Court
This model is followed by several countries that provide the review of the government agencies' actions by specialized administrative courts. Under this model, the review is done by expert judges. In another sense establishment of specialized courts for that purpose also bear expenditure in infrastructure, amenities, etc. There would also be chances of conflict between the general and specialized courts over the issue of jurisdiction and the resolution of the same is required to be done by another mechanism.

If we talk about France and German administrative systems, the France administrative court system is a part of the executive rather than of the judiciary. The France administrative courts provide for open judicial review. On the other side, the German courts are considered part of the judicial branch rather than of executive branch.

It provides for open judicial review of agency decisions. It provides the review of decisions at three adjudicatory levels i.e., administrative courts, higher administrative courts, and Federal administrative courts. In my opinion, the model of open judicial review by a specialized court is also an effective approach as it demarcates the jurisdiction that the categorized matters would be resolved/reviewed by the specialized court but still there can be chances of jurisdiction conflict and establishing the special court for that purpose might also result in the government expenditure on the infrastructure, etc. as the author advocated.

Review of the Indian Administrative Adjudication
In light of the above models, if we examine the evolution/mode of administrative adjudication in India, the same has been started in pre-independence India. In 1941 the income tax tribunal was created to unburden the courts. Later, articles 323A and 323B were inserted which provide for the establishment of tribunals. Article 323A provides for the establishment of a tribunal to deal with the complaint/disputes relating to the recruitment/conditions of services of the Centre and State Government.

Whereas article 323B empowers the Centre and State Government to establish a tribunal to deal with specific matters. Further, the Administrative Tribunal Act 1985 was also enacted which provides for the procedure, and compositions of the administrative tribunals established under the act. Many of these tribunals follow the investigatory system. These tribunals are not exclusively judicial nor administrative, therefore they are called Quasi-judicial bodies.

Thus, in India the administrative adjudication is done by the tribunals, the decision of tribunals can also be reviewed by the High court and then the Supreme court. If any party is aggrieved by the decision of the administrative tribunal they can approach the High Court and Supreme Court. On the other side, the specialized courts as reflected in model 5 are also established for dealing with particular conflicts such as labour courts, consumer courts, etc. but in India, their decision is subject to judiciary scrutiny i.e., High Court and Supreme Court, unlike France.

Therefore, in my opinion, India follows the third model of administrative adjudication. I support the idea that there should be an effective administrative adjudication in a country to resolve the conflict between government agencies and private individuals. Transplanting one system of adjudication from one country to another country is not the panacea, each country must have its administrative adjudication system with variables that are suitable to the system so that the conflict between individuals and government agencies should be minimized.

What is required is the bodies giving initial decisions or reconsideration of the decision, or review of the same must be well funded by the government for proper adjudication and equipped by the independent judges/investigating officers. The Hearing examiner's independence, notably their separation from the complaint-issuance process, is a significant precaution against injustice in administrative adjudication.

The main features of a good system are that it should be accessible to all. It should allow at a low cost to common people and even self-representation should be allowed. The body making each decision-initial, reconsideration, or judicial-must be sufficiently funded and staffed by skilled and impartial authorities. An aggrieved party before seeking a judicial review must approach the concerned department for consideration or reconsideration of the agency's decisions.

A good system makes judgments in a fair amount of time and at a reasonable cost to the government and private parties. If the impartiality of the reviewing authority is assured and these adjudication authorities guide themselves whilst hearing the conflicts between the government agencies and private individuals with the principle of natural justice all these objectives can be received under any of the five models.

  1. Article 226, 32, Constitution of India, 1950.
  2. Article 323A, 323B Constitution of India 1950.
  3. Philip Elman, A Note on Administrative Adjudication, 74 YALE L.J. 652 (1965).
  4. Jean Massot, The Powers, and Duties of the French Administrative Judge, in Comparative Administrative Law (Susan Rose-Ackerman & Peter Lindseth eds. 2010); Jean-Bernard Auby and Lucie CluzelM�tayer, Administrative Law in France, in Administrative Law Of The European Union, Its Member States, And The United States 61-92 (Rene Seerden, ed., 2d ed. 2007).
  5. Cane, Peter. "Judicial review and merits review: comparing administrative adjudication by courts and tribunals." Comparative Administrative Law. Edward Elgar Publishing, 2010.
  1. Asimow, Michael. "Five Models of Administrative Adjudication." The American Journal of Comparative Law, vol. 63, no. 1, Oxford University Press, 2015, pp. 3�31,

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