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
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.
- Is the adjudicatory body a combined functions agency or a separate
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
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
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
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
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
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.
- Article 226, 32, Constitution of India, 1950.
- Article 323A, 323B Constitution of India 1950.
- Philip Elman, A Note on Administrative Adjudication, 74 YALE L.J. 652
- 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 CluzelMétayer, 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).
- Cane, Peter. "Judicial review and merits review: comparing
administrative adjudication by courts and tribunals." Comparative
Administrative Law. Edward Elgar Publishing, 2010.
- Asimow, Michael. "Five Models of Administrative Adjudication." The
American Journal of Comparative Law, vol. 63, no. 1, Oxford University
Press, 2015, pp. 3–31, http://www.jstor.org/stable/26386647