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CHAPTER - I
INTRODUCTION

1.1 Background
India is a constitutional democracy governed by rule of

law. Constitution envisages three agencies: the legislature, the

executive and the judiciary. Every state action is to be in accordance
with law. It is for the judiciary to ensure compliance of this rule by all

agencies of governance. The executive powers of the state are

distributed among various public functionaries and agencies. The day

to day administration may result in conicts between these

functionaries and the citizens involving constitutional issues. The
extra ordinary constitutional power of the superior courts to resolve
these conflicts by having a second look on the decisions of the
authorities discharging public functions and duties, affecting the

rights of the people, by verifying the legality, rationality and

procedural propriety of the decisions under challenge is, in essence,
the power of judicial review of administrative actions.

The power is discretionary and neither appellate nor

revisional in nature. It is a prerogative power to oversee whether the
authority concerned has acted in accordance with law and within the
parameters of its power. Court plays the role of an umpire, compelling
the public authorities to stick on to the rules of the game, without
playing the game by itself. The justification for the power of judicial
review is that neither the administrator nor the legislator can be the
arbiter in his own cause and hence the role of an adjudicator becomes
inevitable to preserve the rule of law in a constitutional democracy.
Since the impugned public decision sought to be reviewed has not
been passed by the court and since the court is not having a second
look of its own decision, in the literal sense the expression judicial
review may be a misnomer, and judicial scrutiny would have been
the apt usage. But, as the judiciary is the third limb of the state the

connotation may be that the state is re-checking or re-viewing the

validity of its own decisions affecting the rights or interests of its

subjects on the touch-stone of constitutionality through the

instrumentality of judiciary.

The scope, content and extent of the power of judicial

review have become a contentious matter because of its impact on
public administration and legislation in all democracies. In the United
States with its written constitution, and in England with its unwritten

constitution, the doctrine of judicial review was nurtured and

nourished by the superior courts, drawing inspiration from the
constitutional principles and the common law traditions. Historically,
the common law principle of judicial review had been evolved for the

purpose of ensuring transparency, accountability and fairness in

public decisions and actions.

The constitutional power of judicial review in the modern

democracies has its origin from the prerogative of the King while
discharging his judicial functions. Both in England and in the United
States, this doctrine, to start with, had a very reluctant appearance in
public law, in so far as the power was exercised by the courts scarcely.
But, by the middle of the 20th century, it had assumed unquestionable

dominance in the public law in the United States and was fastly
gaining momentum in England alsol. As far as India is concerned, as
the power of judicial review is engraved in the Constitution itself, the
growth and development of the doctrine was smooth, uniform and
orderly, drawing inspiration from the common law principles. In India
also initially the growth was slow and reluctant, though at times, it

was imposing and assertive, and has now assumed the role of the
central pillar of constitutionalism and good governance.

1 S. A. de Smith er al, Principles ofludicial Review, Sweet & Maxwell, London (1999), p.54
3 See Articles 32,136,226 and 227 ofthe Constitution of India.

The growth and development of the judge-made law in

this eld is overwhelming that it gives an impression that the non

elected judiciary super-imposes on the democratically elected

legislatures and Governments, central and states, and other public
bodies in the matter of legislations, the day to day administration and
even in policy making. This has resulted, it is apprehended, to some
extent in the development of a parallel stream of public administration

governed or guided by the judiciary. But, the fact remains that the
body of case law evolved under this constitutional doctrine reflect the

social commitment, creativity and ingenuity of the judiciary in the

democratic world.

Although, there are self-imposed restrictions and

jurisdictional parameters for this extra ordinary judicial power, often

they give way to judicial discretion, breaking the parameters and

creating an unbound territory in public law. The power of judicial
review or judicial scrutiny of administrative as well as legislative
actions is a constitutional doctrine accepted as a basic feature of the
Indian Constitution3. It comes within the domain of public law and
serves as an effective check on the administrative and legislative
arbitrariness. The Indian experience has convincingly established that
availability of judicial review is by far the most effective safeguard
against administrative and legislative excesses and executive high
handedness4. The foundation of this doctrine is the concept of the rule
of law which is the antithesis of rule of men. The rule of law is rightly
regarded as a central principle of constitutional governance5.
The concept of rule of law coupled with the constitutional
principle of separation of powers has made judicial review of public
3 Kesavananda Bharati v. Union Qffndia, A.I.R. 1973 s.c. 1461
J Soli J. Sorabjee, Obliging Govemment to Control itself-Recent Development in Indian
Administrative Law, [1994] P.L. 39.

5 Paul Craig, Formal and Substantive Conception of the Rule of Law: An Analytical Frame Work,
[1997] P.L. 487.

administration inevitable. In the constitutional framework of

separation of powers, the role of the adjudicator or umpire is given to
the judiciary. On the legislative side, innumerable number of laws are
being enacted every year by the Parliament and State Legislatures,
creating new powers and duties for the executive, to be implemented
in the day to day life of the citizens, and leaving all these powers to be

executed by the administration. In this process, disputes are bound to

occur between citizens and public authorities about the discharge of

public functions and duties affecting the rights and interests of

citizens. No other agency than the judiciary can be contemplated or is
available to deal with this function of adjudication at the final round.
Therefore, the doctrine of judicial review came to stay; to start with,
peeping in out of necessity, later staying in as a principle of prudence
and, still later, asserting with might as the sole or better repository of
wisdom in the matter of public administration.

The power of judicial review has and should have its self
imposed restraint. Even while expanding this doctrine to control the
executive bull, courts were slow and reluctant to tread into certain
areas of administration which, by their very nature, could not have
been effectively supervised by the courts, due to its inherent inability
and institutional limitations to deal with those areas. Policy decisions
of the Government, defence strategies, religious matters, academic
matters, taxation, international covenants, national security etc. are

some of them. And there is the category of purely ministerial

decisions, which do not result in any civil consequences and are only

mechanical functions, which are almost totally left out of judicial

control.

But, the fact remains that even in such restricted areas as

aforesaid, almost all the grounds of judicial review are still available
with the courts and the reluctance is only self-imposed, depending on
the judges perception to deal with the situation, or due to theoretical
inhibition or even due to a careful and guarded approach not to create

an impression that the courts have high-jacked the administration.

But, even these areas of judicial humility is increasingly getting
shrinked as years pass on and the judicial omnipotence is becoming

all pervasive by its insistence on the principle of legality in

administration, more evidently in India, where the power of judicial
review is protected by written constitutional provisions rather than by
unwritten constitutional conventions.

1.2 Scope and Object of the Study

Judiciary has been exercising restraint in reviewing
certain categories of decisions for obvious reasons. Academic
decisions constitute one such area. Still, it is constrained to touch this
area as well if the situation calls for such review. Academic decisions

stand apart from the ordinary administrative decisions due to the

nature and content of the decisions as well as the constitution and
expertise of the academic authorities or bodies concerned. It is the
settled position in law that courts should not interfere in academic
decisions and matters as a matter of routine. This proposition is
reiterated by the Supreme Court and the High Courts in India as they

have recognized and accepted the fact that the academic bodies
consisting of experts in their respective elds are pre-eminently the
best persons to make authoritative decisions in specialized subjects
and matters. As regards universities, it is accepted that they are self
governing autonomous institutions and, therefore, should be given
sufficient academic freedom and independence in taking decisions in
pursuit of academic excellence.

The main objective of this study is to nd out whether the

above proposition is true in practice or it remains in theory only and
whether the judicial interference in the academic eld is increasing
and, if so, whether it is justified or not. Since a large volume of case
6 Bernard Schwartz, An introduction to American Aclrnimstrative Law, Sir Isaac Pitman & Sons Ltd.,
London (1958), p. 25. The author rightly observe: It is a fact that on the whole public administration
in England is carried on with a remarkably high degree ofintegrity and responsibility, p. 25.

law pertaining to academic decisions and matters is being pronounced

by the Supreme Court and High Courts every year in India, naturally

the question arises as to whether the present rate and trend of

intervention in this jurisdiction is justifiable. Therefore, this study

makes an attempt to trace out the changing trend of increasing

judicial intervention in academic mattes and academic decisions and
to analyze the reasons thereof.

While, an executive or administrative authority has to

receive orders and directions from their superiors in the Government
and on many occasions act on their terms and dictates, an academic
authority will normally be free in its decision making process and
need not have to oblige the Government or the superiors or to take
instructions from them in passing its orders. The element of discretion

vested with the academic authorities is wide and extensive when

compared to that of the executive authorities. In fact, academic
authorities are entrusted with specialized jobs for which they are the
competent persons going by their expertise in the eld. On the other

hand, executive authorities are routine functionaries of the

administrative machinery, who have to execute the policy decisions of
the Government. Therefore, academic decisions are something akin to
policy decisions of the Government, which, although not impregnable

for judicial review, still stand at a safer distance from the judicial
policing.

The administrative or executive authorities, however high

they may be, are amenable to the supervisory jurisdiction of the

higher courts, when they are wrong in the exercise of their powers.
Whether this principle applies to the academic authorities, with the
same vigour and rigour with which it interferes in administrative or
executive decisions, is the core theme of this study. The power of
judicial review of academic decisions dealt with herein and the scope
of the study is limited With reference to Article 226 of the Constitution
of India as invoked by the High Court of Kerala and its jurisdictional

parameters in the light of the principles settled down by the Apex

Court.

It is made clear that this study is not an elaborate

attempt to trace out the jurisdictional parameters of judicial review.
Rather it is conned to the limited area of judicial review of academic
decisions. The scope of the study is restricted to the justiability of
judicial intervention on decisions of academic nature, rather than
decisions of academic bodies. In other words, the study is not based

on the nature of the decision makers but based on the nature and
content of the decisions. Accordingly, the highly volatile area of the

modern professional education dealing with admissions therein,

reservation of seats, collection of capitation fee, quota system of
admissions, minority rights etc., dealt with in the mile stone decisions

like TMA Pai7, Unnikrishnans, Inamdar9, St. Xaviers1, Islamic

Academy and a host of other decisions of the Apex Court and the
High Courts in the above areas have not been dealt with in this
study, as they are essentially policy decisions of the Government
taken on the administrative side and do not belong to the category of
academic decisions, the subject matter herein.

To do justice to the subject, one should also nd answers

to questions like what is an academic decision? In which way or in
what manner it differs from an administrative or executive decision?
Whether it can claim exemption from the power of judicial review? If
yes, to what extent? Finally, what should be the correct approach and
guiding principle in this area of the power of judicial review vis-a-vis

academic decisions? It has also to be looked into whether the

principles settled by the Apex Court in this area are consistent and
followed by the High Courts in compliance with Article 141 of the
i T.M.A. Pat'Founclatz'on and others v. State ofKarnat/ca and others , (2002) 8 S.C.C. 48!.
8 Unnikrishnan and others v. State of/Indhra Pradesh and others, (1992) 1 S.C.C. 645.
9 P./Llnamrlar and others v. State ofMaharas/ztra and others, A.I.R. 2005 S.C. 3226.
'0 Ahmadabatl -St. Xavier s College Society v. State 0fGujarat, (1974) l S.C.C. 717.
H Islamic Academy ofEducation v. State oflfornataka, (2003) 6 S.C.C. 697.

Constitution and in pursuance of judicial discipline. For empirical

studies the decisions of the High Court of Kerala on the subject have
been analyzed critically in this study.

The Supreme Court decisions are scanned for the purpose

of tracing and establishing the scope of judicial interference in

academic decisions in the Indian context. After xing up the
boundaries of judicial intervention by scanning through the Apex
Court decisions and other literature on the subject, both Indian and
foreign, the study makes an evaluation of the approach of the Kerala
High Court in this regard.

1.3 Methodology
The study is both analytical and descriptive and is based
on primary and secondary sources. Primary sources include the case
laws reported from the Supreme Court and the High Court Kerala.
Other sources are, inter alia, the Government of India Act, 1935,

Constituent Assembly Debates, Constitution of India and the

constitutions of the other countries, Administrative Law of India and

of the other countries, legislations pertaining to education and

professional education and professional bodies, texts of different
conventions as well as relevant published documents of the Ministry
of Human Resources Development of the Union Government and State
governments, reports of various organizations and bodies pertaining to
education and various university Acts. Secondary sources include
relevant books, research articles and general references from the High

Court registry and the legal and administrative wings of the

universities in Kerala.

1.4 Scheme of the Study

Chapterisation of this work is done in a manner so as to
trace the origin and development of the doctrine of judicial review in

the common law jurisdiction and its history and constitutional

transplantation in India before entering the core area of the study viz.,

judicial intervention in academic matters. This is necessitated because

unless the scope and ambit of the power of judicial review is broadly

understood at least, the justification for its interference in the

academic field cannot be properly evaluated. Therefore, a major
portion of the trek is through the territory of judicial review before it
reaches the protected area or forbidden area of academic freedom.
This is_ to say that the study does not start from the admitted premises
of judicial review and directly deals with its interference in academic

matters. Instead, the subject is dealt with on a larger canvass of

tracing the contours of the power of judicial review first and then
cross checking with its intrusion into the academic freedom and
autonomy.

The first chapter gives a brief introduction of the subject

consisting of the background, object of the study, its scope, limitation
and the methodology. The second chapter deals with the theory and
concept of judicial review, the origin and scope of the doctrine, its
development in English Law, the doctrine and rule of law, the doctrine
and democracy, its present position in common law jurisdiction, the
constitutional propriety, doctrine of ultra vires, the rationale of judicial
review, criticism against judicial review and the common law theory of
judicial review. The third chapter is on judicial review in the current

Indian context dealing with the background of the Indian

Constitution, the concept in the Constituent Assembly, initial
approach of the Indian judiciary, gradual empowerment of Indian
judiciary and judicial activism in India. Chapter four probes into the
academic freedom and university autonomy and deals with academic
freedom and university autonomy in India, university autonomy in
England and United States, autonomy of Indian universities before

independence, judicial intervention, tension between academic

freedom and administration and downsizing higher education.
Chapters ve and six focus on Supreme Courts decisions on academic

matters. Seventh chapter is on High Court of Keralas case law on

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academic matters. The case law are dealt with under different
separate topics. The last chapter is the conclusions and suggestions of
the study.