PROCEDURAL FAIRNESS AND AGENCY POWER Guidance Documents, Administrative Tribunals and Emergency Discretion in the Administrative State: A Comparative Study of India and the United States
DIVYAM GAUTAM MURARI
, BHAVESH TIWARI
Governments today rule via administrative agencies and the agencies exercise their power via three instruments which are all very much at odds with the conventional notion of a fair hearing. The first is informal guidance in the form of circulars, master directions, policy statements and manuals which all have the effect of shaping behaviour without ever going through the process of formal rule making. The second is the in-house adjudicator, the tribunal member or administrative law judge who is the one who makes the decisions on the disputes in the first instance, or at least very close to the executive branch whose policies are in question. The third is emergency discretion, the wide power to act which is conferred by statute in the name of public health or national security and which is often exercised with the normal procedural protections completely bypassed. The paper contends that the principle of procedural fairness, which is normally conceived of as a right to be heard prior to a decision being taken, is in fact a structural obligation which applies to the way in which agencies make rules, the way in which they determine who is entitled to be a party to a dispute and the way in which discretion is exercised when the state is claiming an emergency. Using a doctrinal and comparative approach the paper looks at India and the US with reference points from the UK. It reads the law along a line of development from Maneka Gandhi v. Union of India (1978) and the US Administrative Procedure Act of 1946 to the decisions of the last three years: Loper Bright Enterprises v. Raimondo and SEC v. Jarkesy (2024), Madras Bar Association v. Union of India (2025) and Learning Resources, Inc. v. Trump and Trump v. Slaughter (2026). The conclusion is that both systems have developed robust doctrines of individual fairness and comparatively weak doctrines of structural fairness. With respect to India it suggests a number of reforms: a statutory Administrative Procedure Code, a binding regime for guidance documents, an independent National Tribunals Commission and a proportionality based framework for emergency powers. Keywords: procedural fairness; natural justice; due process; administrative law; guidance documents; notice and comment rule making; administrative tribunals; administrative law judges; judicial independence; emergency powers; proportionality; India; United States.
"PROCEDURAL FAIRNESS AND AGENCY POWER Guidance Documents, Administrative Tribunals and Emergency Discretion in the Administrative State: A Comparative Study of India and the United States", IJSDR - International Journal of Scientific Development and Research (www.IJSDR.org), ISSN:2455-2631, Vol.11, Issue 10, page no.b951-b992, October-2026, Available :https://ijsdr.org/papers/IJSDRTH01028.pdf
Volume 11
Issue 10,
October-2026
Pages : b951-b992
Paper Reg. ID: IJSDR_312366
Published Paper Id: IJSDRTH01028
Downloads: 00017
Research Area: Other area not in list
Country: MUMBAI, MAHARASHTRA, India
ISSN: 2455-2631 | IMPACT FACTOR: 9.15 Calculated By Google Scholar | ESTD YEAR: 2016
An International Scholarly Open Access Journal, Peer-Reviewed, Refereed Journal Impact Factor 9.15 Calculate by Google Scholar and Semantic Scholar | AI-Powered Research Tool, Multidisciplinary, Monthly, Multilanguage Journal Indexing in All Major Database & Metadata, Citation Generator
Publisher: IJSDR(IJ Publication) Janvi Wave
