Judicial Review of Administrative Action

8/3/2019 Judicial Review of Administrative Action

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JUDICIAL REVIEW OF

ADMINISTRATIVE ACTION


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JUDICIAL REVIEW

of

ADMIISTRATIVE ACTIONADMINISTRATIVE LAW DEALS WITH-

1. Powers and duties of administrative authorities.

2. Procedure followed by administrative authorities inexercising the powers and disharging and duties.

3. The remedies available to an aggrieved person

when his rights are affected by any action of

administrative authorities .NOTE:Review means second examination of the matter.


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EXECUTIVE or

ADMINISTRATIVE

ACTION(FUNCTIONS)

The Executive performs those functions which arenot vested in the other two branches of theGovernment i.e. legislature and

judiciary(True/False)

The functions of the Administration may bedivided into three broad categories:-

Quasi-Legislative;Quasi-judicial;

&

Purely Administrative


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ADMINISTRATIVE ACTION

Simply speaking, it means act of an administrative

authority. It is, however, a term of wider

connotation. It is said that the administration is the

meeting point of three kinds of governmental

functions, namely legislative, judicial and executive.

Classification of Administrative Action:-

(i) Quasi-legislative(ii) Quasi-Judicial

(iii) Purely administrative


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(I) Quasi-legislative Administrative

Action

(a) Rules etc. made by CentralGovernment, State Government, Boardof Revenue, I.G. of Police etc.

(b) Rules, Regulations, Bye-laws,scheme etc. framed by authoritiesother than legislative come under this

category.

(c) All India Services (Conduct) Rules,1968 and All India Services (Discipline

and Appeal), 1969


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(II) Quasi-Judicial Administrative Action

Three criteria for determining when an action ofan administrative authority becomes quasi-

judicial administrative action. They are:-

(i) The administrative agency should be vested

with legal authority.

(ii) The administrative agency should be

competent to determine questions affecting the

rights of the subjects.(iii) The administrative authority should be

under a duty to act judicially.


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Quasi-Judicial Function Differsfrom a Purely Judicial Function

A quasi-judicial authority has some ofthe trapping of a court, but not all ofthem; nevertheless there is an

obligation to an act judicially.

A lis inter partes is an essentialcharcteristics of a judicial function, but

this may not be true of a quasi-judicialfunction.

A court is bound by the rules of

evidence and procedure while quasi-


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While a court is bound by precedents,a quasi-judicial authority is not.

A court can not be judge in its owncause (except in a contempt case),while an administrative authority

vested with quasi-judicial powers maybe a party to the controversy but canstill decide it.


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Purely AdministrativeFunctions: Ingredients

An administrative order is generally basedon governmental policy.

No legal obligation to adopt a judicial

approach to the question to be decided,the the decisions are usually subjectiverather than objective.

Not bound by the rules of evidence and

procedure.

Can take a decision even in the absence ofa statutory provision.

Administrative functions may be delegated-


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Administrative authority may not onlyconsider the evidence adduced by theparties but may also use itsdiscretion.

Administrative order may be held to

be invalid on the ground ofunreasonableness.


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QUASI-LEGISLATIVE FUNCTIONS -

INGREDIENTS

Order is legislative in character, it has tobe published.

Order is legislative in character, the court

will not issue a writ of certiorari to quashit.

Subordinate legislation cannot be heldinvalid for unreasonableness.

Administrative powers can be sub-delegated.

There is no right to a notice and hearing.

Rules of Natural Justice do not apply in


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III. Purely Administrative Action -Examples

(i) Maintenance of Public Order.(ii) Conduct of military operation.

(iii) Implementation of policy, plan and

programme.(iv) Management of public properties and

nationalised institutions.

(v) Supervision of services, such aseducation, public health, transport etc.

(vi) Passing of orders relating to

preventive detention, externment andde ortation.


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(vii) Appointment, control and

punishment of public servants.(viii)Grant of licence/permits and

revocation thereof.

(ix)Acquisitioning andrequisitioning of properties.

(x) making of investigation intoalleged conduct or act in order totake administrative action.


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JUDICIAL REVIEW

The term Judicial Reviewconsists of two words. They

are review and Judicial.The key word is Review,which, used as noun, means

looking over something again;judging again; reconsideration;reassessment; critical

examination


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It is emphatically the province and

duty

of the judicial department to saywhat

the law is. Those who apply therule to particular cases must of

necessity

expound and interpret therule.....A law repugnant to the

Constitution is void.


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JUDICIAL REVIEW IN U.S.A.

The Judicial power shall extend toall cases, in law and equity,arising under this Constitution,the laws of the United States andtreaties made or which shall bemade under their authority

(Article III Section 2)


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1. The Supreme Court shall have such further

jurisdiction and powers with respect to any of the

matters in the Union List as Parliament may by

law confer.

2. The Supreme Court shall have such further

jurisdiction and powers with respect to any matter

as the Government of India and the Governmentof any State may by special agreement confer, ifParliament by law provides for the exercise of such

jurisdiction and powers by the Supreme Court

138. Enlargement of the Jurisdictionof the Supreme Court


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139. Conferment on the Supreme

Court of powers to issue certain

writs - Parliament may by law confer on the

Supreme Court power to issue directions,

orders or writs, including writs in thenature of habeas corpus, mandamus,

prohibition, quo warranto and certiorari, or

any of them, for any purposes other thanthose mentioned in clause (2) of Article

32.


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140. Ancillary powers of Supreme

Court

Parliament may by law make provisions for

conferring upon the Supreme Court such

supplemental powers not inconsistent with

any of the provisions of this Constitution as

may appear to be necessary or desirable for

the purpose of enabling the Court moreeffectively to exercise the jurisdiction

conferred upon it by or under this

Constitution.


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142. Enforcement of decrees and orders ofSupreme Court and orders as to discovery, etc.1. The Supreme Court in the exercise of its

jurisdiction may pass such decree or make suchorder as is necessary for doing complete justice inany cause or matter pending before it, and anydecree so passed or order so made shall beenforceable throughout the territory of India insuch manner as may be prescribed by orunder any law made by Parliament and,until provision in that behalf is so made,in such manner as the President may byorder prescribe.


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2. Subject to the provisions of anylaw made in this behalf byParl iament, the Supreme Court shall, asrespects the whole of the territory of India,have all and every power to make any order

for the purpose of securing the attendanceof any person, the discovery or productionof any documents, or the investigationor punishment of any contempt ofitself.


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145. Rules of Court, etc.

Subject to the provisions of any law made by

Parliament, the Supreme Court may from

time to time, with the approval of the

President, make rules for regulating

generally the practice and procedure of theCourt including:-

(c) rules as to the proceedings in the Court for

the enforcement of any of the rights conferred

by Part III;


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Our Constitution provides an artistic blending and an droitadmixture of judicial and executive functions....Apart from

the safety valves, checks and balances, at every stage

where the power of President is abused or misused orviolates any of the Constitutional safeguards, it is alwayssubject to judicial review. The power of judicial review

which has been conceded by the Constitution to the

judiciary is the safest possible safeguard not only to ensureindependence of judiciary but also to prevent it from thevagaries of the executives.

In the Famous Judges Transfer Caseof S.P. Gupta Vs. Union of India

AIR 1982 SCC 149


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JUDICIAL REVIEW OF PURELYADMINISTRATIVE ACTION - ITS LEGAL

NOTION

(a) It is the exercise of the courtspower to determine whether the

administrative action is lawful or notand to award suitable relief.

(b) It is the mechanism for controlling

the actions of the administration.

(c) Harmonising the administrativediscretion with the Rule of Law.


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(d) Court can not go into the merits

of the Administrative action.

(e) It may examine the legality orotherwise of the administrativeaction.

(f) It performs the role of reviewing

forum and as such, it possesseslimited powers.

(g) It does not sit in appeal over the


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POWER OF JUDICIAL REVIEW-WHAT DOES THE COURT LOOK

INTO Whether a decision-making authority has

exceeded its power?

Whether the authority has committed an error

of Law?

Whether the authority has committed a breachof the principles of Natural Justice?

Whether the authority has reached a decisionwhich reasonable person would have reached?

Whether the authority has abused its power?


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SUPREME COURT OF INDIA ONJUDICIAL REVIEW Mahdayal Prem Chandra Vs. C.T.O.

AIR 1958 SC 667

The C.T.O. acted as per thedictation of his superior officer, whilemaking assessment.

Non- application of mind vitiatesthe order.


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Dr. Ram Manohar Lohia Vs. State ofBihar AIR 1966 SC 704 - arrested underDIR held Public Safety and maintenance ofPublic Order not same as Law & Order.

Harikrishna Sarma Vs. State ofPunjabAIR 1966 SC 1081

Grant of Cinema licence - Stategovernment can not assume the functions ofa licencing authority, even though it is an

appellate authority.


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A.K. Kraipak Vs. Union, AIR 1970 SC150One of the member of Selection

Board was himself a candidate.

held "Rule of Law pervades over the

entire field of administration andevery organ of State is regulated byrule of Law. The concept of Rule ofLaw would loose its vitality if theinstrumentalities of State are notcharged with the duty of dischargingtheir functions in fair and just

manner."

Union of India Vs M L Kapoor &


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Union of India Vs. M.L. Kapoor &

Others AIR 1974 87

Reasons have to given by the selectingauthority while superceding an officer in

promotion matters.

Hiranath Misra Vs. Principal, Rajendra

Medical College, Ranchi AIR 1973 SC

1260

The principle of natural justice are flexible. It

may differ in different circumstances.

Smt Maneka Gandhi Vs Union


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Smt. Maneka Gandhi Vs. Union

AIR 1978 SC 597

"Although there are no positive words in thestatute that the party shall be heard yet thejustice of common law will supply the omissionof legislation". Thus, two vital things are

required in an administrative action and theseare:-

- Impartiality

- Fairness

which means that in all administrativeproceedings, doctrine of natural justice 'moreparticularly "audi alteram partem" must be heldapplicable.

Allotment of Petrol Pumps and Shop etc


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Allotment of Petrol Pumps and Shop etc.

Capt. Satish Sarma, 1996 SCC 530

Sheila Kaul 1996 SCC 558

The case was filed by a common cause society on

the basis of a news report. found to be a clear abuse of public office by a pubic

servant, while discharging discretionary powers.

It is a criminal breach of trust.

Article 14 does not permit the power to pick &

choose.

Both the Ex-ministers fined also.


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Imposition of President's Rule

(a) State of Rajasthan Vs. Union(1977) 3SCC592

Presidential proclamation is a Political decision.

Didnt agree with U.S. Supreme Court that it can lay

down Judicially discoverable and manageable standards

It can examine only if the decision is based onextraneous considerations or legal malafides.


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(b) Bommai's Case (AIR 1994 SC 1918)

(1) Presidential proclamation is justiciable.

(2) Followed the ruling of Pakistan Supreme

Court.

Guidelines issued where


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Guidelines issued, whereArticle 356 is not to be used:-

Where mal-administration is there butMinistry enjoys Assembly support.

Where Ministry resigns or is out voted,Governor must explore possibility of an

alternative government.

Where in a general election to Lok Sabha, theRuling Party in a State suffer massive defeat.

Where there is a situation of internaldisturbance and union has not taken stepsunder Article 355.

Where no prior warning/opportunity is given


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Where power is used to sort out problemsof ruling party.

Charges of corruption - no ground. Financial exigencies - not a ground.

Legal malafides

Recommendation of Impositionof President's Rule - Patna HighCourt Sanyukta Nagarik Samiti (P.I.L.)

Scam in JRY - Fraudulent payment of Rs.10 crores under JRY.

GROUNDS FOR INTERFERENCE


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GROUNDS FOR INTERFERENCE

BY THE COURT

Decision maker has not correctlyunderstood the law that regulateshis decision making power.

Decision is outrageous and has beenin defiance or logic or of acceptedmoral standards

Procedure followed while arriving at

administrative decision was not fairand reasonable.

Facts do not warrant the conclusion.

Authority imposes a condition


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Authority acted without or in excess ofthe power.

Action is malafide.

Discretion on irrelevant grounds or onextraneous considerations.

Relevant matters/facts/events havebeen left out of consideration.

Violation of the Rules of Natural

Justice.

Colourable exercise of power.

Acted at the dictation of his superior.


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Non-compliance with the mandatory

procedural requirements.

Administrative action is discriminatory.

Violative of fundamental rights.

Administrative action contrary to law.

Manifestly unreasonable.

Patently irrational order.

Documents

Judicial Review of Administrative Action