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GENERAL PRINCIPLE OF JUDICIAL REVIEW ON ADMINISTRATIVE ACTION IN INDIAN LEGAL SYSTEM
The doctrine of judicial review has been originated and developed by the American Supreme Court, although there is no express provision in the American Constitution for the judicial review. In Marbury v. Madison,[1] the Supreme Court made it clear that it had the power of judicial review. Chief Justice George Marshall said,
“Certainly all those who have framed the written Constitution contemplate them as forming the fundamental and paramount law of the nations, and consequently, the theory of every such Government must be that an act of the legislature, repugnant to the Constitution is void”.
There is supremacy of Constitution in U.S.A. and, therefore, in case of conflict between the Constitution and the Acts passed by the legislature, the Courts follow the Constitution and declare the acts to be unconstitutional and, therefore, void. The Courts declare void the acts of the legislature and the executive, if they are found in violation of the provisions of the Constitution.
A. Meaning
Judicial review is a great weapon in the hands of judges. It comprises the power of a court to hold unconstitutional and unenforceable any law or order based upon such law or any other action by a public authority which is inconsistent or in conflict with the basic law of the land.
Kailash Rai defines judicial review as the authority of the Courts to declare void the acts of the legislature and executive, if they are found in the violation of the provisions of the Constitution. Judicial Review is the power of the highest Court of a jurisdiction to invalidate on Constitutional grounds, the acts of other Government agency within that jurisdicition.[2]
Broadly speaking, judicial review in India deals with three aspects: (i) judicial review of legislative action; (ii) judicial review of judicial decision;
and (iii) judicial review of administrative action.[3] In this short-paper, we are concerned with the last aspect, namely, judicial review of administrative action.
It is necessary to distinguish between ‘judicial review’ and ‘judicial control’. The term judicial review has a restrictive connotation as compared to the term judicial control. Judicial review is ‘supervisory’, rather than ‘corrective’, in nature. Judicial review is denoted by the writ system which functions in India under Arts. 32 and 226 of the Constitution. Judicial control, on the other hand, is a broader term. It denotes a much broader concept and includes judicial review within itself. Judicial control comprises of all methods through which a person can seek relief against the Administration through the medium of the courts, such as, appeal, writs, declaration, injunction, damages statutory remedies against the Administration.[4]
B. Object
The underlying object of judicial review is to ensure that the authority does not abuse its power and the individual receives just and fair treatment and not to ensure that the authority reaches a conclusion which is correct in the eye of law.
As observed by the Supreme Court in Minerva Mills Ltd. v. Union of India[5], the Constitution has created an independent judiciary which is vested with the power of judicial review to determine the legality of administrative action and the validity of legislation. It is the solemn duty of the judiciary under the Constitution to keep different organs of the State within the limits of the power conferred upon them by the Constitution by exercising power of judicial review as sentinel on the quo vive. Thus, judicial review aims to protect citizens from abuse or misuse of power by any branch of the state.
Judicial quest in administrative matters is to strike the just balance between the administrative discretion to decide matters as per government policy, and the need of fairness. Any unfair action must be set right by administrative review.[6]
C. Judicial Review, Appeal and Revision
It should be remembered that the object and scope of judicial review of administrative action is different from that of appeal. The object of judicial review of administrative action by the ordinary courts is to keep the administrative authorities within the bounds of their powers under the law. Appeal, on the other hand, means that the superior administrative tribunal or court to whom appeal lies under the law, has the power to reconsider the decision of the inferior tribunal on the merits. Appeal, however, is a creature of statue and there is no right of appeal unless there is a specific statutory provision creating that right.[7]
The power of revision is usually placed at the hands of the highest authority, e.g., the State Government, to correct any illegality or irregularity in the proceedings before the inferior authorities. There are: (a) Sometimes the statue expressly states that the power of revision may be exercised suo motu as well as on the application of the party aggrieved; (b) Sometimes the statue only authorizes the superior authority to use his power or revision suo motu or of his own motion, e.g., original s. 33 of the Income-tax Act, 1922. In such a case the party aggrieved has no right to relief and the revisional authority has no duty to perform, on the application of such party; (c) Difficulty of interpretation arises where neither the words ‘suo motu’, nor ‘on application’ are used by the statue.[8]
D. Nature and Scope
Judicial review of administrative action is perhaps the most important development in the field of public law in the second half of this century. In India, the doctrine of judicial review is the basic feature of Indian Constitution. Judicial review is the most potent weapon in the hands of the judiciary for the maintenance of the rule of law. Judicial review is the touchstone of the Constitution. The Supreme Court and High Courts are the ultimate interpreters of the Constitution. It is, therefore, their duty to find out the extent and limits of the power of coordinate branches, viz. executive and legislature and to see that they do not transgress their limits. This is indeed a delicate task assigned to the judiciary by the Constitution. Judicial review is thus the touchstone and essence of the rule of law.
The power of judicial review is an integral part of Indian Constitutional system and without it, there will be no government laws and the rule of law would become a teasing illusion and a promise of unreality. The judicial review, therefore, is a basic and essential feature of the Constitution and it cannot be abrogated without affecting the basic structure of the Constitution.[9]
In judicial review, the court is not concerned with the merits or correctness of the decision, but with the manner in which the decision is taken or order is made. A court of law is not exercising appellate power and it cannot substitute its opinion for the opinion of the authority deciding the matter. The areas where judicial power can operate are limited to keep the executive and legislature within the scheme of division of powers depends upon the facts and circumstances of each case. The dimension of judicial review must remain flexible.
It is a cardinal principle of Indian Constitution that no one howsoever highly placed and no authority lofty can claim to be the sole judge of its power under the Constitution. The rule of law requires that the exercise power by the legislature or buy the judiciary or by the government or by any other authority must be conditioned by the Constitution. Judicial review is thus the touchstone and repository of the supreme law of the land.
In recent times, judicial review of administrative action has become extensive and expansive. The traditional limitations have vanished and the sphere of judicial scrutiny is being expanded. Under the old theory, the courts used to exercise power only in cases of absence or excess or abuse of power. As the State activities have become pervasive and giant public corporations have come in existence, the stake of public exchequer justifies larger public audit and judicial control.[10]
The scope of judicial review in India is not a wide as in USA. The American Supreme Court can declare any law unconstitutional on the ground of its not being in “due process of law”, but the Indian Supreme Court has no such power. In India, outside the limitation imposed on the legislative powers, Parliament and State legislature are supreme in their respective legislative fields and the Court has no authority to question the wisdom or policy of the law duly made by the appropriate legislature. Another reason
is because the Indian Supreme Court has consistently refused to declare legislative enactments invalid on the ground that they violate the natural, social or political rights of citizens, unless it could be shown that such injustice was expressly prohibited by the Constitution.[11]
E. Justiciability
Judicial review must be distinguished from justiciability. The two concepts are nor synonymous. The power of judicial review goes to the authority of the court and can be exercised by the court in appropriate cases.
Justiciability is not a legal concept with fixes contents, nor is it susceptible of scientific verification. There is not and there cannot be a uniform rule regarding scope and reach of judicial review applicable to all cases. It varies from case to case depending upon subject-matter, nature of right and other relevant factors.
The power of judicial review relates to the jurisidcition of the court whereas justiciablity is hedged by self-imposed judicial restraint. A court exercising judicial review may refrain to exercise its power if it finds that the controversy raised before it is not based on judicially discoverable and manageable standards. Moreover, the area of justicibiality can be reduced or curtailed. Even when, exercise of power is bad, the court in its discretion decline to grant relief considering the facts and circumstances of the case.[12]
F. Limitations
Judicial review has certain inherent limitations. It is suited more for adjudication of disputes than for performing administrative functions. It is for the executive to administer the law and the function of the judiciary is to ensure that the Government carries out its duty in accordance with the provision of the Constitution.
The duty of the court is to confine itself to the question of legalist. It has to consider whether a decision-making authority exceeded its power, committed an error of law, violated rules of natural justice, and reached a decision which no reasonable man would have reached or otherwise abused
its powers. Though the court is not expected to act as a court of appeal, nevertheless, it can examine whether the “decision-making process” was reasonable, rational, not arbitrary or not violative of Article 14 of the Constitution. The parameters of judicial review must be clearly defined and never exceeded. If the authority has faultered in its wisdom, the court cannot act as super auditor.
Unless the order passed by an administrative authority is unlawful or unconstitutional, power of judicial review cannot be exercised. An order of administration may be right or wrong. It is the administrator’s right to trial and error and so long as it is bonafide and within the limits of the authority, no interference is called for. In short, power of judicial review is supervisory in nature. Unless this restriction is observed, the court, under the guise of preventing abuse of power by the administrative authority, will itself be guilty of usurping power.
Bernard Schwarts rightly stated:[13]
“If the scope of review is too broad, agencies are turned into little more than media for the transmission of cases to the courts. That would destroy the values of agencies created to secure the benefit of special knowledge acquired through continuous administration in complicated fields. At the same time, the scope of judicial inquiry must not be so restricted that it prevents full inquiry into the question of legality. If that question cannot be properly explored by the judge, the right to review becomes meaningless. It makes judicial review of administrative orders a hopeless formality for the litigant. … It reduces the judicial process in such cases to a mere feint.”
G. Conclusion
It is fundamental principle of law that every power must be exercised within the four corners of law and within the legal limits. Exercise of administrative power is not an exception to that basic rule. The doctrines by which those limits are ascertained and enforced form the very marrow of administrative law. Unfettered discretion cannot exist where the rule of law reigns. Again, all power is capable of abuse, and that the power to prevent the abuse is the acid test of effective judicial review.[14]
Under the traditional theory, courts of law used to control existence and extend of prerogative power but not the manner of exercise thereof. That position was, however, considerably modified after the decision in Council of Civil Service Unions v. Minister for Civil Service[15], wherein it was emphasized that the reviewability of discretionary power must depend upon the subject-matter and not upon its source. The extent and degree of judicial review and justifiable area may vary from case to case.[16]
At the same time, however, the power of judicial review is not unqualified or unlimited. If the courts were to assume jurisdiction to review administrative acts which are ‘unfair’ in their opinion (on merits), the courts would assume jurisdiction to do the very thing which is to be done by administration. If judicial review were to trespass on the merits of the exercise of administrative power, it would put its own legitimacy at risk.
It is submitted that the following observations of Frankfurter, I. in Trop v. Dulles,[17] lay down correct legal position:
“All power is, in Madison’s Phrase ‘of an encroaching nature’. Judicial Power is not immune against this human weakness. It also must be on guard against encroaching beyond its proper bounds, and not the less so since the only restraint upon it is self restraint.”
***
END NOTES:
[1] 1 Cranch 137 (1803).[2] Kailash Rai, Administrative Law, Allahabad Law Agency, Haryana, 2006, p. 395. See also L.P. Berths, Constitution and the Supreme Court, p. 16.[3] C.K. Takwani, Lectures on Administrative Law, Eastern Book Company, Lucknow, 2003, p. 236.[4] M.P. Jain and S.N. Jain, Principles of Administrative Law: An Exhaustive Commentary on the Subject containing case-law reference (Indian & Foreign), 6th Ed., Wadhwa and Company Nagpur, New Delhi, 2007, p. 1779.[5] (1980) 3 SCC 625 (677-78): AIR 1980 SC 1789 (1925-26). See also Fertilizer Corpn. Kamgar Union v. Union of India, (1981) 1 SCC 568 (574-
75): AIR 1981 SC 344 (347).[6] Tata Cellular v. Union of India, (1994) 6 SCC 651: AIR 1996 SC 11, 13.[7] Durga Das Basu, Administrative Law, 5th Ed., Kamal Law House, Calcutta, 1998, p. 413.[8] Ibid, p. 412.[9] C.K. Takwani, Supra note no. 3, p. 237.[10] Ibid., pp. 237-238.[11] M.V. Pylee, Constitutional Government in India, p. 379.[12] Ibid, p. 239.[13] Administrative Law, 2nd Edn., p. 584 cited in Tata Cellular v. Union of India, (1994) 6 SCC 651 (680): AIR 1996 SC 11, 13.[14] Wade, Administrative Law, (1994), pp. 39-41.[15] (1984) 3 All ER 935: (1984) 3 WLR 1174: (1985) AC 374.[16] Craig, Administrative Law, (1993), p. 291.[17] (1985) 35 US 86.
MAIN REFERENCES:
Basu, Durga Das, Administrative Law, 5th Ed., Kamal Law House, Calcutta, 1998.
Jain, M.P. and S.N. Jain, Principles of Administrative Law: An Exhaustive Commentary on the Subject containing case-law reference (Indian & Foreign), 6th Ed., Wadhwa and Company Nagpur, New Delhi, 2007.
Rai, Kailash, Administrative Law, Allahabad Law Agency, Haryana, 2006.
Takwani, C.K., Lectures on Administrative Law, Eastern Book Company, Lucknow, 2003.
Judicial Review of Administrative Action: The law revisited
One of the key chapters taught to law students in an Administrative Law course relates to
'judicial review of administrative action' in as much as judicial review has been declared by the
courts as a part of the basic structure of the constitutional ethos in India and also that in as
much as all administrative bodies are required to act in consonance with the legal regime and
principles of natural justice in dealing in pursuance of their actions.
In a recent decision, called upon the examine the validity of a Circular issued by the Director
General of Foreign Trade (DGFT) in respect of import of marbles in India, Justice S. Muralidhar
is the Delhi High Court culled out the following tests which are required to be observed to test
the validity of administrative action by the judiciary;
37. Two essential legal principles govern the exercise of the power of judicial review by a High
Court in matters such as these. First, the court will not sit in appeal over the ultimate decision of
the administrative body. It is really concerned about the procedure adopted in arriving at such
decision. Was it a fair, reasonable and just procedure? Were relevant materials considered and
irrelevant materials kept out? As far as the final decision is concerned, is it vitiated by malafides
or is it so arbitrary that no reasonable person would, in the circumstances, have arrived at it.
Second, in policy matters, the Court will be slow to interfere. As the case law reveals, where the
question is of reasonableness of restrictions imposed through an import policy, the degree of
deference shown by the judicial wing to the executive is greater. In Dy. Assistant Iron & Steel
Controller v. L. Manichand the Supreme Court explained: (SCC p. 337)
“11…… In granting licences for imports, the authority concerned has to keep in view various
factors which may have impact on imports of other items of relatively greater priority in the
larger interest of the over-all economy of the country which has to be the supreme
consideration; and an applicant has no absolute vested right to an import licence in terms of the
policy in force at the time of his application because from the very nature of things at the time of
granting the licence the authority concerned may often be in a better position to have a clearer
over-all picture of the various factors having an important impact on the final decision on the
allotment of import quota to the various applicants.”
38. It was observed in Liberty Oil Mills v. Union of India (SCC p. 477):
“6….. The import policy of any country, particularly a developing country, has necessarily to be
tuned to its general economic policy founded upon its constitutional goals, the requirements of
its internal and international trade, its agricultural and industrial development plans, its monetary
and financial strategies and last but not the least the international political and diplomatic
overtones depending on 'friendship, neutrality or hostility with other countries' (Glass Chotans
Importers and Users' Association v. Union of India [1962]1SCR862 . There must also be a
considerable number of other factors which go into the making of an import policy. Expertise in
public and political, national and international economy is necessary before one may engage in
the making or in the criticism of an import policy. Obviously courts do not possess the expertise
and are consequently incompetent to pass judgment on the appropriateness or the adequacy of
a particular, import policy. But we may venture to assert with some degree of accuracy that our
present import policy is export oriented. Incentives by way of import licences are given to
promote exports…..”
39. In M.P. Oil Extraction v. State of M.P. it was held (SCC, p.611):
“41…….The executive authority of the State must be held to be within its competence to frame
policy for the administration of the State. Unless the policy framed is absolutely capricious and,
not being informed by any reason whatsoever, can be clearly held to be arbitrary and founded
on mere ipsi dixit of the executive functionaries thereby offending Article 14 of the Constitution
or such policy offends other constitutional provisions or comes in conflict with any statutory
provision, the Court cannot and should not out step its limit and tinker with the policy decision of
the executive functionary of the State. This Court, in no uncertain term, has sounded a note of
caution by indicating that policy decision is in the domain of the executive authority of the State
and the Court should not embark on the unchartered ocean of public policy and should not
question the efficacy or otherwise of such policy so long the same does not offend any provision
of the statute or the Constitution of India. The supremacy of each of three organs of the State
i.e. legislature, executive and judiciary in their respective field of operation needs to be
emphasised. The power of judicial review of the executive and legislative action must be kept
within the bounds of constitutional scheme so that there may not be any occasion to entertain
misgivings about the role of judiciary in out stepping its limit by unwarranted judicial activism
being very often talked of in these days. The democratic set up to which the polity is so deeply
committed cannot function properly unless each of the three organs appreciates the need for
mutual respect and supremacy in their respective field.”
40. In Secretary to Govt. of Madras v. P.R. Sriramulu the Supreme Court observed (SCC p.
358):
“15. As pointed out earlier with reference to the decisions of this Court the State enjoys the
widest latitude where measure of economic regulations are concerned. These measures for
fiscal and economic regulation involve an evaluation of diverse and quite often conflicting
economic criteria, adjustment and balancing of various conflicting social and economic value
and interests. It is for the State to decide what economic and social policy it should pursue. It is
settled law that in view of the inherent complexity of the fiscal adjustments, the Courts give a
large discretion to the legislature in the matter of its references of economic and social policies
and effectuate the chosen system in all possible and reasonable ways. If two or more methods
of adjustment of an economic measure are available, the legislative preference in favour of one
of them cannot be questioned on the ground of lack of legislative wisdom or that the method
adopted is not the best or there are better ways of adjusting the competing interests and the claims as the legislature possesses the greatest freedom in such areas. It is also well settled that lack of perfection in a legislative measure does not necessarily imply its unconstitutionality as no economic measure has so far been discovered which is free from all discriminatory impact and that in such a complex area in which no fool proof
device exists, the Court should be slow in imposing strict and rigorous standard of scrutiny by reason of which all local fiscal schemes may be subjected to criticism under the Equal Protection clause.”
41. In P.T.R. Exports (Madras) P Limited v. Union of India, the Supreme Court observed:
“5. It would, therefore, be clear that grant of licence depends upon the policy prevailing as on
the date of the grant of the licence. The Court, therefore, would not bind the Government with a
policy which was existing on the date of application as per previous policy. A prior decision
would not bind the Government for all times to come. When the Government are satisfied that
change in the policy was necessary in the public interest, it would be entitled to revise the policy
and lay down new policy. The Court, therefore, would prefer to allow free play to the
Government to evolve fiscal policy in the public interest and to act upon the same. Equally, the
Government is left free to determine priorities in the matters of allocations or allotments or
utilisation of its finances in the public interest. It is equally entitled, therefore, to issue or
withdraw or modify the export or import policy in accordance with the scheme evolved. We,
therefore, hold that the petitioners have no vested or accrued right for the issuance of permits
on the MEE or NQE, nor the Government is bound by its previous policy.”
42. In Ugar Sugar Works Limited v. Delhi Administration the Supreme Court observed thus
(SCC p. 643):
“18. ………. It is well settled that the Courts, in exercise of their power of judicial review, do not
ordinarily interfere with the policy decisions of the executive unless the policy can be faulted on
grounds of mala fide, unreasonableness, arbitrariness or unfairness etc. Indeed, arbitrariness,
irrationality, perversity and mala fide will render the policy unconstitutional. However, if the
policy cannot be faulted on any of these grounds, the mere fact that it would hurt business
interests of a party, does not justify invalidating the policy. In tax and economic regulation
cases, there are good reasons for judicial restraint, if not judicial deference, to judgment of the
executive. The Courts are not expected to express their opinion as to whether at a particular
point of time or in a particular situation any such policy should have been adopted or not. It is
best left to the discretion of the State.”
43. As far as the present case is concerned, it is not possible to hold that the transition from the
dual policy to a unified policy was either arbitrary or irrational. The decision-making process
itself appears to be a well deliberated one where matters were considered at different levels.
The Respondents were faced with an unenviable task of accommodating several competing
interests. How these should in fact be resolved should be left to the Respondents. The court
cannot be expected to sit in appeal over the decision of the government to introduce a
requirement for eligibility for grant of an import licence and opine that one criterion is more
appropriate than the other.
Have a look at the decision.
Administrative Law And Judicial Review Of Administrative Action
Administrative Law And Judicial Review Of Administrative Action*
By Justice Markandey Katju**
Cite as : (2005) 8 SCC (J) 25
The topic of "Administrative law and judicial review of administrative action" is a very
important subject in modern times. I
intend to dwell on the aspects of how administrative law came into existence, its objects and its
broad principles.
According to Wade, administrative law is the law relating to the control of powers of the
executive authorities1 To
consider why such a law became necessary, we have to consider its historical background.
Up to the 19th century the functions of the State in England were confined to (i) defence of the
country from foreign
invasion, and (ii) maintenance of law and order within the country.
Feudal, agricultural society, was relatively simple and social relations were uncomplicated.
There were few laws, mainly
customary (not statutory). But with the advent of industrial revolution in the 18th and 19th
centuries, society became
complex. Concentration of people in urban areas called for new regulatory State authorities for
town planning, housing
improvement, public health, education, factory management, street lighting, sewerage, drainage,
sanitation, schemes for
providing water, electricity, etc. Also the early 20th century laid the foundation for a Welfare
State dealing with health
insurance, unemployment allowance, sickness and old age benefits, free and compulsory
education, etc.
This vast expansion in the State functions called for a huge amount of legislation and also for
wide delegation of State
functions by Parliament to executive authorities, so also was there a need to create a body of
legal principles to control
and to check misuse of these new powers conferred on the State authorities in this new situation
in the public interest.
Thus, emerged administrative law. Maitland pointed out in his Constitutional History:
"Year by year the subordinate Government of England is becoming more and more important.
We are becoming a much
governed nation, governed by all manner of councils and boards and officers, central and local,
high and low, exercising
the powers which have been committed to them by modern statutes."
But in the early 20th century following the tradition of Dicey's classic exposition in his The Law
of the Constitution, there
was a spate of attacks on parliamentary delegation culminating in the book New Despotism by
the then Chief Justice of
England, Lord Hewart published in 1929. In response, the British Government in 1932 set up a
committee called the
Committee on Ministerial Powers headed by Lord Donoughmore, to examine these complaints
and criticisms. However,
the Donoughmore Committee rejected the argument of Lord Hewart and accepted the reality that
a modern State cannot
function without delegation of vast powers to the executive authorities, though there must be
some control on them.
Parliament could theoretically exercise this control, but in practice it could not, since it did not
have the time. Hence it
became the duty of the Judges, though unelected, to become representatives of the people and
ensure that executive
authorities do not abuse their powers, but instead use it in the public interest.
But Judges too are not supposed to act arbitrarily. Hence a body of legal principles was created
(largely by Judges
themselves in their judgments and not by Parliament) on the basis of which Judges had to
exercise their powers of
judicial review of administrative action on settled principles but not arbitrarily. It is this body of
rules which is known as
administrative law.
Being largely Judge-made, administrative law is not contained in any Administrative Law Act,
just as the income tax law
is contained in the Income Tax Act or the sales tax law in the Sales Tax Act. Hence some writers
have criticised
administrative law as a "wilderness of single instances, and not a separate, coherent branch of
law". However, the
fundamental principle behind administrative law has always remained the same, namely, that in a
democracy the people
are supreme, and hence all State authority must be exercised in the public interest.
It is a mistake to think that administrative law is necessarily antagonistic to efficient government.
As Wade points out
"intensive administration will be more tolerable to the citizen, and the Government's path will be
smoother, where the law
can enforce high standards of legality, reasonableness and fairness".
As pointed out by Sir John Donaldson, M.R., in R. v. Lancashire CC, ex p Huddleston2 All ER
p. 945c the development
of administrative law
"has created a new relationship between the courts and those who derive their authority from the
public law, one of
partnership based on a common aim, namely, the maintenance of the highest standards of public
administration".
In Tata Cellular v. Union of India3 (para 113) the Supreme Court laid down the following basic
principles relating to
administrative law: (SCC pp. 687-88, para 94)
The Practical Lawyer
http://www.supremecourtcases.com Eastern Book Company Generated: Saturday, August 13,
2011(1) The modern trend points to judicial restraint in administrative action;
(2) the Court does not sit as a court of appeal over administrative decisions, but merely reviews
the manner in which the
decisions were made;
(3) the Court does not have the expertise to correct administrative decisions. If a review of the
administrative decisions is
permitted it will be substituting its own decision without the necessary expertise, which itself
may be fallible;
(4) a fairplay in the joints is a necessary concomitant for the administrative functioning.
(5) however, the administrative decision can be tested by application of the Wednesbury
principle of reasonableness,
and must be free from arbitrariness, bias or mala fides.
There are two kinds of controls on executive powers viz.:
(1) statutory, and
(2) non-statutory.
Statutory controls
Statutory controls are given in the statute (or rules or regulations made under the statute). Any
executive action in
violation of the same will be declared illegal by the courts, by applying the ultra vires doctrine.
Thus, where the London County Council had statutory powers to purchase and operate
tramways, it was held by the
House of Lords that it had no power to run omnibuses, which was not incidental to the running
of tramways4 Similarly a
local authority with the power to acquire land other than "park, garden or pleasure house" acts in
excess of jurisdiction in
acquiring land which is part of a park5
An executive authority may also act unlawfully if it fails to perform a duty imposed upon it by
statute such as maintenance
of civic services (e.g. sewerage, drainage, water supply, etc.) by the Municipalities or other local
bodies whose duty
under the statute is to maintain such services. Here also a mandamus will issue from the courts to
compel such authority
to perform its statutory duty.
Where the statute delegates a power to a particular authority, that authority cannot sub-delegate
that power to another
authority or person unless the statute permits such sub-delegation.
Similarly, discretion exercised by the prescribed authority on the direction of a higher authority
would be illegal6
When the statute prescribes the manner of doing an act, the authority must do it in that manner
alone7
Difficulty, however, arises in the matter of what is called "subjective discretion" conferred by the
statute. An instance of
such subjective discretion is where the statute says that an executive authority can take such
decision "as it deems fit".
Another example is where the statute says that action can be taken or order passed where the
authority has "reasonable
grounds to believe" to take that action or pass such order e.g. Section 132 of the Income Tax Act
which confers power on
the Commissioner of Income Tax to order search and seizure where he has "reason to believe"
that some person is
concealing his income.
In Liversidge v. Anderson8 the Defence (General) Regulations, 1939 provided:
"If the Secretary of State has reasonable cause to believe any person to be of hostile origin or
association he may make
an order against that person directing that he be detained."
The detenu Liversidge challenged the detention order passed against him by the Secretary of
State. The majority of the
House of Lords, except Lord Atkin, held that the Court could not interfere because the Secretary
of State had mentioned
in his order that he had reasonable cause to believe that Liversidge was a person of hostile origin
or association.
Liversidge8 was delivered during the Second World War when the executive authority had
unbridled powers to detain a
person without even disclosing to the Court on what basis the Secretary had reached to his belief.
However,
subsequently, the British courts accepted Lord Atkin's dissenting view that there must be some
relevant material on the
basis of which the satisfaction of the Secretary of State could be formed. Also, the discretion
must be exercised keeping
in view the purpose for which it was conferred and the object sought to be achieved, and must be
exercised within the
four corners of the statute9
Sometimes a power is coupled with a duty10 Thus, a limited judicial review against
administrative action is always
The Practical Lawyer
http://www.supremecourtcases.com Eastern Book Company Generated: Saturday, August 13,
2011available to the courts.
Non-statutory controls
Some of the non-statutory controls are:
(a) The Wednesbury principle
(b) Rules of natural justice
(c) Proportionality (See Teri Oat Estates (P) Ltd. v. Union Territory, Chandigarh11, Union of
India v. Rajesh P.U.12, etc.)
(d) Promissory estoppel13
(e) Legitimate expectation14
We may only consider some of these in detail.
Wednesbury Principle
Up to 1947 the law in England was that the courts could interfere only with judicial or quasi-
judicial decisions and not with
administrative decisions. This legal position changed after the famous decision of Lord Greene in
Associated Provincial
Picture Houses Ltd. v. Wednesbury Corpn.15 in which it was said: (All ER pp. 682 H-683 A)
A person entrusted with discretion must, so to speak, direct himself properly in law. He must call
his attention to matters
which he is bound to consider. He must exclude from his consideration matters which are
irrelevant to what he has to
consider. If he does not obey those rules he may truly be said to be acting unreasonably.
Similarly, there may be
something so absurd that no sensible person could ever dream that it lay within the powers of the
authority.
The above observation incorporates what is frequently called as the Wednesbury principle.
The courts often intervene to quash as illegal the exercise of administrative discretion on the
ground that it suffers from
"Wednesbury unreasonableness".
Thus, in Dy. Director of Consolidation v. Deen Bandhu Rai16, the settlement officer rejected an
application for permission
to effect an exchange of holdings on the grounds (i) that the granting of the permission would
entail considerable work on
the part of officers of the department, and (ii) that the applicants were big landholders. The
Supreme Court held that
these reasons were not germane and pertinent for the rejection of the petitions.
In Barium Chemicals Ltd. v. Company Law Board17 the Secretary of the Company Law Board
issued an order under
Section 237(b) of the Companies Act, 1956 appointing inspectors to investigate the affairs of a
company. Section 237(b)
of the Act authorised such an appointment to investigate the affairs of a company "if, in the
opinion of the Central
Government" there were circumstances suggesting (a) that the business of the company was
being conducted with the
intent to defraud its creditors, members, or any other person; (b) that the persons concerned in
the formation of the
company or the management of its affairs had been guilty of fraud or misconduct towards the
company or towards any of
its members; (c) that the members of the company had not given out all the information with
respect to its affairs. The
Supreme Court held that before the discretion conferred by Section 237(b) of the Companies Act
can be exercised, there
must exist circumstances which in the opinion of the authority suggest the grounds set out in the
statute.
Unfettered discretion would also be inconsistent with Article 19 of the Constitution which
permits only reasonable
restrictions on the rights conferred by that Article. Similarly, it would also be violative of Article
14 which prohibits
arbitrariness18 In Shalini Soni v. Union of India19 the Supreme Court observed: (SCC p. 549,
para 7)
"It is an unwritten rule of the law, constitutional and administrative, that whenever a decision-
making function is entrusted
to the subjective satisfaction of a statutory functionary, there is an implicit obligation to apply his
mind to pertinent and
proximate matters only, eschewing the irrelevant and the remote."
In Rohtas Industries v. S.D. Agarwal20, an investigation into the affairs of a company was
ordered under Section 237 of
the Companies Act, 1956. The Company Law Board took into account the fact that there were
complaints of misconduct
against one of the leading directors of the company in relation to other companies subject to his
control for which he was
being prosecuted. The Court held that this factor was irrelevant in establishing fraud.
The Wednesbury principle is often misunderstood to mean that any administrative decision
which is regarded by the
Court to be unreasonable must be struck down. The correct understanding of the Wednesbury
principle is that a decision
will be said to be unreasonable in the Wednesbury sense if (i) it is based on wholly irrelevant
material or wholly irrelevant
The Practical Lawyer
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2011consideration, (ii) it has ignored a very relevant material which it should have taken into
consideration, or (iii) it is so
absurd that no sensible person could ever have reached to it.
As observed by Lord Diplock in Council of Civil Service Unions v. Minister for the Civil
Service21, a decision will be said
to suffer from Wednesbury unreasonableness if it is "so outrageous in its defiance of logic or of
accepted moral
standards that no sensible person who had applied his mind to the question to be decided could
have arrived at it" (All
ER p. 951a-b).
An administrative decision cannot be struck down by the Judge merely because he disagrees with
the administrator22
There may be degrees of unreasonableness, and the Wednesbury unreasonableness refers only to
the extreme degree
of unreasonableness which no sensible person could reach after taking into account the relevant
materials or relevant
considerations. Thus, in W., Re,23 Lord Hailsham observed: (All ER p. 56g-h)
"Two reasonable parents can perfectly reasonably come to opposite conclusions on the same set
of facts without
forfeiting their title to be regarded as reasonable. ... Not every reasonable exercise of judgment is
right, and not every
mistaken exercise of judgment is unreasonable."
Hence, the Wednesbury unreasonableness means "unreasonableness verging on absurdity" as
observed by the House
of Lords in Puhlhofer v. Hillingdon L.B.C.24
Rules of Natural Justice
The rules of natural justice were originally only two viz.:
1. Audi alteram partem i.e. the person(s) to be affected by an order of the authority should be
heard before the order is
passed, and
2. The rule against bias.
Subsequently, some more rules of natural justice are in the process of development e.g. that the
administrative authority
should give reasons for its decisions, particularly when the decisions affect the rights and
liabilities of the citizens.
It must, however, be made clear that the rules of natural justice are flexible, and are not a
straitjacket formula25 In
exceptional cases not only can they be modified but even excluded altogether26 Natural justice is
not an unruly horse. If
fairness is shown, there can be no complaint of breach of natural justice27
As regards the rule audi alteram partem, up to 1964 the legal position in England was that in
judicial and quasi-judicial
proceedings opportunity of hearing had to be given, but it was not necessary to do so in
administrative proceedings. This
legal position changed in Ridge v. Baldwin28 in which the House of Lords held that opportunity
of hearing had to be
given even in administrative proceedings if the administrative order would affect the rights and
liabilities of the citizens.
This view of the House of Lords was followed by the Supreme Court in State of Orissa v. Dr.
Binapani Dei29 and State of
Maharashtra v. Jalgaon Municipal Council30 wherein it was held that administrative orders
which involve civil
consequences have to be passed consistently with the rules of natural justice. The expression
"civil consequences"
means where rights and liabilities are affected. Thus, before blacklisting a person he must be
given a hearing31
It may be noted that even if the statute does not expressly require that opportunity of hearing
must be given before
passing an order which affects rights and liabilities, the courts have held that such opportunity of
hearing must be given
unless expressly excluded by the statute32 Thus, natural justice is an implied requirement of
administrative decisions
which affects rights and liabilities.
It may be mentioned that a hearing need not always be an oral hearing. In certain circumstances,
the Administrator can
only issue a show-cause notice to the party likely to be affected and on his/her reply can pass the
decision without giving
a personal hearing to the parties. However, in certain circumstances where the party may be very
seriously affected the
courts have insisted that an oral hearing with opportunity of presenting witnesses and cross-
examining the witnesses on
the other side must be given.
Similarly, the principle that "no man should be a judge in his own cause" disqualifies an
Administrator from giving a
decision which affects the rights and liabilities, if he is biased.
It may, however, be pointed out that in H.C. Narayanappa v. State of Mysore33 the Supreme
Court observed that the
Minister or officer invested with the power to hear objections to a scheme is acting in his official
capacity and unless there
is reliable evidence to show that he is actually biased, his decision will not be liable to be called
in question merely
because the objections to the government scheme are heard by the government itself or by its
officers.
The requirement to give reasons in administrative decisions which affect rights and liabilities has
been held to be
The Practical Lawyer
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2011mandatory by the Supreme Court in S.N. Mukherjee v. Union of India34 This reduces the
chances of arbitrariness on the
part of the authority, as the reasons recorded by him are subject to judicial scrutiny by the higher
courts or authorities.
Before concluding, it must also be mentioned that there are certain administrative matters which
are inappropriate for
judicial review. One of these is policy decisions of the government or of the executive authority
which ordinarily should
not be interfered with by the courts unless they are clearly violative of the statute or shockingly
arbitrary35, Union of India
v. International Trading Co.14, etc. In the instant case the facts were that the Central
Government had initially decided to
locate the headquarters of South Western Railways at Bangalore. Later it was decided to locate it
at Hubli, and this
decision was challenged. The Supreme Court held that it was a policy decision and hence the
Court cannot interfere,
even if the decision was political36
Similarly, maintenance of law and order is an executive function, and the courts should not
ordinarily interfere with the
same37
Apart from that, practically every legal system recognises certain subjects as inappropriate for
judicial review e.g. foreign
affairs, declaration of wars, etc.
Remedies
Remedies for enforcing administrative law are available before the higher judiciary e.g. the
Supreme Court under Article
32 of the Constitution and the High Courts under Article 226 of the Constitution. The higher
judiciary can issue writs of
certiorari, mandamus, habeas corpus, prohibition and quo warranto and also issue orders or
directions "in the nature of
writs".
The language used in Articles 32 and 226 is thus wide, and it has been held that the Indian courts
have wider powers
than the British courts in issuing writs38 Article 226 confers powers on the High Court not only
to issue prerogative writs,
but also issue order or direction to enforce fundamental and other legal rights39 Hence the High
Courts in India are not
confined to the procedural technicalities of the English rules40 The Court can also mould the
relief to meet the peculiar
and complicated requirements of this country, provided the High Court does not contravene any
provisions of the
Constitution or the law.
A writ can be issued by the High Courts and the Supreme Court not only to the Government, but
also to what are called
instrumentalities of the State. A writ of certiorari will be issued when the court finds that there is
an error of law apparent
on the face of record. A mandamus will be issued to a public authority to compel it to do its
public duty.
In the grants of public contracts the courts usually (though not invariably) insist that such grants
be made by public
auction/public tender after advertising the same in well-known newspapers having wide
circulation so that there is
transparency and compliance with Article 14 of the Constitution. Such grants by private
negotiation are ordinarily
disapproved41
A writ can be issued to enforce the statute or statutory rule or order. However, a question may
arise whether it can be
issued to enforce non-statutory government orders or executive instructions.
The earlier decisions of the Supreme Court were of the view that no mandamus will issue to
enforce mere administrative
instructions which have no statutory force42 However, subsequently, certain exceptions have
been carved out to the
above principle. In certain exceptional circumstances, mandamus can be issued to enforce a non-
statutory administrative
order. Some of such exceptions are:
(i) Where the principle of promissory estoppel applies e.g. in Union of India v. Indo Afghan
Agencies Ltd.43, Motilal
Padampat Sugar Mills Co. Ltd. v. State of U.P.44, etc.
(ii) Where the principle of legitimate expectation applies45
(iii) In service matters, where there are no statutory rules, administrative instructions can fill in
the gap, and are
enforceable46
(iv) In many matters e.g. awards of public contracts, an executive authority must be rigorously
held to the standards by
which it professes its actions to be judged, even if such actions are non-statutory47
I am not going into further details of administrative law or judicial review of administrative
action as I only intended to set
out the broad outlines.
The Practical Lawyer
http://www.supremecourtcases.com Eastern Book Company Generated: Saturday, August 13,
2011* Lecture delivered in the "Nain Singh Memorial Lecture" held on 26-9-2005 at the
Uttaranchal Academy of
Administration, Nainital, Uttaranchal. Return to Text
** Hon'ble Chief Justice of the High Court of Madras. Return to Text
- Administrative Law (9th Edn.) Return to Text
- (1986) 2 All ER 941 (CA) Return to Text
- (1994) 6 SCC 651 Return to Text
- London County Council v. Attorney General, 1902 AC 165 (HL) Return to Text
- White and Collins v. Minister of Health, (1939) 2 KB 838 : (1939) 3 All ER 548 (CA) Return
to Text
- Anirudhsinhji Karansinhji Jadeja v. State of Gujarat, (1995) 5 SCC 302 : 1995 SCC (Cri) 902
Return to Text
- Bhavnagar University v. Palitana Sugar Mill (P) Ltd., (2003) 2 SCC 111; Capt. Sube Singh v.
Lt. Governor of Delhi,
(2004) 6 SCC 440 Return to Text
- 1942 AC 206 : (1941) 3 All ER 338 (HL) Return to Text
- Clariant International Ltd. v. SEBI, (2004) 8 SCC 524 Return to Text
- G.P. Singh: Principles of Statutory Interpretation (9th Edn.) p. 395. Return to Text
- (2004) 2 SCC 130 Return to Text
- (2003) 7 SCC 285 : 2003 SCC (L&S) 1048 Return to Text
- State of Punjab v. Nestle India Ltd., (2004) 6 SCC 465 Return to Text
- Union of India v. International Trading Co., (2003) 5 SCC 437 Return to Text
- (1947) 2 All ER 680 : (1948) 1 KB 223 (CA) Return to Text
- (1964) 4 SCR 560 : AIR 1965 SC 484 Return to Text
- 1966 Supp SCR 311 : AIR 1967 SC 295 Return to Text
- Maneka Gandhi v. Union of India, (1978) 1 SCC 248 Return to Text
- (1980) 4 SCC 544 : 1981 SCC (Cri) 38 Return to Text
- (1969) 1 SCC 325 Return to Text
- 1985 AC 374 : (1984) 3 All ER 935 (HL) Return to Text
- Gazi Saduddin v. State of Maharashtra, (2003) 7 SCC 330 : 2003 SCC (Cri) 1637 Return to
Text
- 1971 AC 682 : (1971) 2 All ER 49 (HL) Return to Text
- (1986) 1 All ER 467 (HL) Return to Text
- Bar Council of India v. High Court of Kerala, (2004) 6 SCC 311 (paras 49 and 50). Return to
Text
- Union of India v. Tulsiram Patel, (1985) 3 SCC 398 : 1985 SCC (L&S) 672 (para 101). Return
to Text
- Chairman, Board of Mining Examination v. Ramjee, (1977) 2 SCC 256 : 1977 SCC (L&S) 226
Return to Text
- 1964 AC 40 : (1963) 2 All ER 66 (HL) Return to Text
- (1967) 2 SCR 625 : AIR 1967 SC 1269 Return to Text
- (2003) 9 SCC 731 Return to Text
- Raghunath Thakur v. State of Bihar, (1989) 1 SCC 229 Return to Text
- State Govt. Houseless Harijan Employees' Assn. v. State of Karnataka, (2001) 1 SCC 610
(paras 27 to 30). Return to
Text
- (1960) 3 SCR 742 : AIR 1960 SC 1073 Return to Text
- (1990) 4 SCC 594 : 1990 SCC (Cri) 669 Return to Text
- Union of India v. Manu Dev Arya, (2004) 5 SCC 232 : 2004 SCC (L&S) 769 Return to Text
- Union of India v. Kannadapara Sanghatanegala Okkuta, (2002) 10 SCC 226 Return to Text
- State of Karnataka v. Dr. Pravin Bhai Thogadia, (2004) 4 SCC 684 : 2004 SCC (Cri) 1387;
Rama Muthuramalingam v.
Dy. Supdt. of Police, AIR 2005 Mad 1 Return to Text
- Dwarkanath v. ITO, (1965) 3 SCR 536 : AIR 1966 SC 81 Return to Text
- Air India Statutory Corpn. v. United Labour Union, (1997) 9 SCC 377 : 1997 SCC (L&S)
1344; P.J. Irani v. State of
Madras, (1962) 2 SCR 169 : AIR 1961 SC 1731 Return to Text
- T.C. Basappa v. T. Nagappa, (1955) 1 SCR 250 : AIR 1954 SC 440 Return to Text
- S. Selvarani v. Commr., Karaikudi Municipality, (2005) 1 CTC 81 Return to Text
- G.J. Fernandez v. State of Mysore, (1967) 3 SCR 636 : AIR 1967 SC 1753; J.R. Raghupathy v.
State of A.P., (1988) 4
SCC 364 Return to Text
- (1968) 2 SCR 366 : AIR 1968 SC 718 Return to Text
- (1979) 2 SCC 409 Return to Text
- J.P. Bansal v. State of Rajasthan, (2003) 5 SCC 134 : 2003 SCC (L&S) 605, paras 25 to 30.
Return to Text
- Amarjit Singh Ahluwalia (Dr.) v. State of Punjab, (1975) 3 SCC 503 : 1975 SCC (L&S) 27,
para 8; B.N. Nagarajan v.
State of Mysore, (1966) 3 SCR 682 : AIR 1966 SC 1942; Sant Ram Sharma v. State of
Rajasthan, (1968) 1 SCR 111 :
The Practical Lawyer
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2011AIR 1967 SC 1910 Return to Text
- Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489, para
10. Return to Text
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