Judicial power

Griffith, C. J., in an Australian case, namely, Huddart Parker and Co. v. Moorehead which to some extent neutralised the effect of the negative tests enumerated in the judgment. The observations of Griffith, C.J., are as follows :-

“I am of opinion that the words ‘judicial power’…. mean to power which every sovereign authority must have to necessity to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action.”

It may be stated that the authority to hear and decide on evidence between a proposal and an opposition though it is one of the most essential of judicial powers, may be present in an administrative tribunal also. In the majority of cases, administrative bodies are also armed with the powers of a Court of justice in summoning witnesses, administering oaths and punishing disobedience to its order made for the purpose of effecting its enquiries. Vide W. F. O’Conner v. Waldron. As a matter of fact, it is usual to find that those features which were at one time attached exclusively to activities carries on in a Court of law are being extended to committees, commissions or boards conducting enquiries under directions or supervision of the Government. The presence or absence of these features, therefore, does not furnish any conclusive test to determine whether a particular body is a judicial body or not. In the observations of Griffith, C.J., quoted above, the learned Chief Justice laid stress on the power to make a binding and authoritative decision as the essential element in the exercise of judicial power. The exact meaning and implication of these expressions were the subject-matter of discussion in later Australian cases and it was held by the majority of the Judges in Rola Co. (Australia) Pty. Limited v. The Commonwealth that they do not simply mean that if an authority is given power to decide controverted questions of fact and its determination is made binding on the parties to the controversy, if would be sufficient to show that judicial power was entrusted to such authority. A determination, it was pointed out, may be binding on the parties in the same sense as contract is binding on them. What is necessary is that the determination by its own force and without the aid or instrumentality of any other authority or power must affect the rights and obligations of the parties; or in other words, the decision itself irrespective of the facts decided, must create rights and impose obligations; and it should be enforceable as such under the ordinary law of the land. This undoubtedly is one of the fundamental tests which distinguishes a judicial body from one which exercises administrative or quasi judicial functions. Sometimes the decision or report of the administrative tribunal becomes operative after it is accepted by the head of the department under which the tribunal conducted its enquiries and it is then enforced by some sort of administrative process; or it might create rights between the parties which have to be sued upon in the ordinary way in a Court of Law and it is only on the basis of a judgment or decree that is obtained in such action that relief could be had by the party. The essence of judicial determination is that nothing further remains to be done except the enforcement of the judgment, a step which is compelled automatically by the law of the land.

In Cooper v. Wilson, Scott, L. J., quoted with approval and adopted as the basis of his judgment the following passage from the report of the above committee :

“A true judicial decision presupposes an existing dispute between two or more parties, and then involves four requisites :- (1) The presentation (not necessarily orally) of their case by the parties to the dispute; (2) if the dispute between them is a question of fact, the ascertainment of the fact by means of evidence of adduced by the parties to the dispute and often with the assistance of argument by or on behalf of the parties on the evidence; (3) if the dispute between them is a question of law, the submission of legal argument by the parties to the dispute and often with the assistance of argument by a finding upon the facts in dispute and an application of the law of the land to the facts so found, including where required a ruling upon any disputed question of law. A quasi judicial decision equally presupposes an existing dispute between two or more parties and involves and but does not necessarily involve and never involves. The place of is in fact taken by administrative action, the character of which is determined by the Minister’s free choice.”