B.B.A.LL.B.

( HONS)
Session- 2019-20

Name of the Student - Rishika Jain

Semester – B.B.A.LL.B. 4th Sem Enroll No. – DL1801620
University Exam Roll No. – 80440566
Status: Regular/ ATKT – Regular
Assignment Subject – Administrative Law
Assignment Topic – Judicial Review of Administrative Actions

Submitted to: Submitted by:

Name- Ms. Chetna Sharma Name- Rishika Jain
Date- 08/05/2020 Sem- B.B.A.LL.B. 4th Sem
Marks Obtained –

1
 ACKNOWLEDGEMENT

I have put in efforts in this assignment. However, it would not

have been possible without the kind support and help of many
individuals and organizations. I would like extent my sincere
thanks to all of them.

I thank my God for providing me with everything that I required

in completing this assignment.

I am highly indebted to the Teacher in Charge Ms. Chetna Sharma

For her guidance and constant supervision as well as for
providing necessary information regarding the assignment and
also for the support in completing the assignment.

I would like to express my gratitude towards my parents for

their kind co-operation and encouragement which helped me in
the completion of this assignment.

My hearty thanks and appreciations go to my classmates in dev

eloping the assignment and to the people who have willingly
helped me out with their abilities.

Student Name: Rishika Jain

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 CERTIFICATE OF AUTHENTICITY

This is to certify that Rishika Jain student of Indore Institute

of Law has successfully completed the below mentioned
assignment under the guidance of Ms. Chetna Sharma
during the year 2019-2020.

Student Name- Rishika Jain

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 DECLARATION

I hereby declare that the project assignment entitled “Judicial

Review of Administrative Actions” is submitted for fulfilling
the essential criteria of INDORE INSTITUTE OF LAW, is a
record of an original work done by me under the guidance of
Ms. Chetna Sharma, B.B.A.LL.B. (Hons.) 2nd year- IV Semester,
Indore Institute of Law for the academic session 2019-20

Rishika Jain
B.B.A.LL.B. 4th Sem
Place: Indore
Date: 08/05/2020

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 INDEX

SR.NO. CONTENTS PAGE NO.

1. Introduction 8

2. Judicial Review & Administrative Actions 9-10

3. Grounds for Judicial Review of 11-13

Administrative Actions

4. Criticism of Review: Limits & Limitations 14-15

5. Remedies for Judicial Review 16

6. Conclusion 17

7. References 18

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RESEARCH METHODOLOGY

The method adopted for the research casts the content analysis and doctrinal method of the
available fledged data. Content analysis is a methodology in the social sciences by which
texts are studied as to authorship, authenticity, or its meaning.

Content analysis is a summarizing, quantitative analysis of messages that relies on the

scientific methods including some prerogative methods as well, and is not limited as to the
types of variables that may be measured but has its vastness up to sky high limits that is
unfeasible.

In this research the methodology of content analysis is used for analysing researched data
comprising of various articles, news articles, reports of various institutions etc. & books on
the relevant topic to bring forth useful & appropriate information as it is the doctrinal type of
research.

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Abstract

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 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. Administrative law has a tremendous social function to perform.
It is the body of reasonable limitations and affirmative action parameters, which are
developed, and operationalised by the legislature and the courts to maintain and sustain the
rule of law. The courts, through writs of habeas corpus, mandamus, certiorari, prohibition and
quo warranto, control administrative action. The source of Administrative law is the statutes,
statutory instruments, precedents and customs. The article discusses the doctrine of legitimate
expectation, Public Accountability and doctrine of proportionality. The increased power of
the administration judicial control has become an important area of administrative law,
because courts have proved more effective and useful than the legislative or the
administrative powers.

Keywords: Administrative law, Legislature, Rule of law, Courts, Administration

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Introduction

Administrative law is recognized as a separate branch of legal discipline in the middle of the
20th century in India. Today, the administration plays important role and impinges freely and
deeply on every aspect of an individual’s life. So, administrative law has become a key area
for study and research. Administrative law is dharma, which conduces to the steadiness and
growth of the society and the maintenance of social order and welfare of mankind and liberty.
It gives the administrative powers to achieve the basic aim of any civilized society that is
‘growth with liberty’. Administrative law has remarkable social function to carry out.
Without appropriate administrative law any society would die. Administrative law is body of
reasonable limitations and affirmative action parameter, which are developed, and
operationalised by the legislature and the courts to maintain and sustain a rule of law society.
The establishment of administrative law is recognized as, to check, abuse or detournement of
administrative power, to guarantee the citizens an impartial determination of their disputes by
officials, to protect them from unauthorized encroachment on their rights and interest, and to
make those who exercise public power accountable to the people.

According to Prof. Upendra Baxi, “Administrative Law is a study of the pathology of power
in a developing society”1. Accountability of the holders of public power for the ruled is thus
the focal point of this formulation is the basic expectation in a rule-of-law society is that
holders of public power and authority must be able to publicly justify their action as legally
valid and socially wise and just. Therefore, administrative law is one part of this valiant
enterprise of accountability. The study of administrative law presumes special significance in
any developing society for the development of more specific forms of responsibility.
Normally administrative law is defined as that branch of public law, which deals with the
organization and powers of administrative and quasi-administrative agencies and prescribes
principles and rules by which an official action is reached and reviewed in relation to
individual liberty and freedom. Administrative law is primarily concerning with the official
action, which is related to the rule-making action, adjudicatory action, and rule-application
action. Beside these, the actions that are incidental to the main action are covered within its
study. The incidental actions may be investigatory, supervisory, advisory, declaratory and
prosecutor.

Administrative law also includes the control mechanism by which the administrative agencies
are kept within bounds and made effective in the service of the individuals. This control
mechanism is technically called the ‘review process’. An administrative action is controlled
by courts through the writs of Habeous corpus, mandamus, certiorari, prohibition and quo
warranto, courts exercising ordinary judicial powers through suits, injunctions and
declaratory actions, higher administrative authorities. Access to Justice includes procedural
facility like, speedy, inexpensive and less formalistic, legal aid, availability of advocates for
public interest litigation, intellectual capacity of the party and active participation of the
judges.

1
See Introduction by Prof Baxi, supra
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Judicial Review and Administrative Actions

Judicial review is an essential component of the rule of law, which is a basic feature of the
Indian Constitution. The Judiciary is separate and Independent and vast powers are conferred
on Judiciary to adjudicate the disputes, entail fines & penalties, and foremost, the
interpretation of law. It is a court’s authority to review the actions of other branches or levels
of government, concerning to the court’s power to invalidate legislative and executive actions
as being unconstitutional. This is the Superior Court’s review of a lower court or an
administrative body’s honest or legal answers. It was in L. Chandra Kumar v Union Of India 2
as there was a light on the short inclusive definition of the Judicial Review where the Hon’ble
Supreme Court stated that, “Definition of judicial review in the American context is, subject
to a few modifications, equally applicable to the concept as it is understood in Indian
Constitutional Law. Broadly speaking, judicial review in Indian comprises three aspects:
judicial review of legislative action, judicial review of judicial decisions and judicial review
of administrative action.

The Hon’ble Supreme Court of India expressly elaborated the Judicial Review over
legislative actions in L. Chandra Kumar case, “The constitutional Safeguards which ensure
the independence of the Superior Judiciary are not available to the judges of the subordinate
judiciary or to those tribunals created by ordinary legislations. Consequently, judges of the
latter category can never be considered full and effective substitutes for the superior judiciary
in discharging the function of constitutional interpretation. Therefore, the power of judicial
review over legislative actions vested in High Courts under Art 226 and in Supreme Court
under Art 32 of the Constitution is an integral and essential feature of the constitution,
constituting part of its basic structure. The power of Supreme Court and the High Courts to
check the constitutional validity of legislations can never be excluded. The remedy for the
tribunals was to appeal under Article 136 of the Constitution through a Special Leave
Petition.

Administrative agency will come under the governmental authority, which is not a court or a
legislative body, which affects the right of private parties through adjudication, rulemaking,
investigating, prosecuting, negotiating, settling, or informally acting. An administrative
agency can be called a commission, board, authority, bureau, office, officer, administrator,
department, corporation, administration, division or agency. When the President, or a
Governor, or a Municipal Governing body exercises authority of adjudication or rulemaking,
it is to that position an administrative agency.

The administration is playing an essential and significant role in designing and influencing
the socio-economic order. The authority in administrative functionaries and the agencies are
resulting in maladministration and the corruption. By the exploitation of power or misuse of
power, the administration forgets and disregards the individual’s rights.

2
AIR 1997 SC 1125; 1997 (2) SLR (1) SC,1997 Lab IC 1069 (SC)
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The courts in India are given extraordinary powers to control and review the administrative
actions. The Courts are playing the creative role in order to protect the relations of the growth
and development of administrative law. The scope of Judicial Review and the domain of the
courts are handful, where it looks for the specific issues to give shape to the principles by
which the administrative functioning can be regulated. In B.A.L.C.O. Employees Union
(regd.) v. Union of India3 quoted – wherein it observed, "It is evident that it is neither within
the domain of the courts nor the scope of the judicial review to embark upon an enquiry as to
whether a particular public policy is wise or whether better public policy can be evolved. No
are our courts inclined to strike down a policy at the behest of a petitioner merely because it
has been urged that a different policy would have been fairer or wiser or more scientific or
more logical" and stated,” In examining a question of this nature where a policy is evolved by
the Government judicial review thereof is limited. In the statute, when policy according to
which or the purpose for which discretion is to be exercised is clearly expressed, this cannot
be alleged to be an unrestricted discretion. The matters affecting policy and requiring
technical expertise Court could leave the matter for decision of those who are qualified to
deal with the issues. Unless the policy or action is inconsistent with the Constitution and the
laws or arbitrary or irrational or abuse of the power, the Court will not interfere with such
matters.

The judicial review's efficacy exists because it is very flexible, and when a statute does not
confer a review or appeal, judicial review's inherent flexibility provides the citizen with a
remedy where one might otherwise not exist. However, judicial review will not normally be
permitted if there is alternative appellate provision.

3
(2002) 35 SCL.182
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Grounds for Judicial Review of Administrative Actions

In recent times, many administrative decisions taken by the Government are being struck
down either on avoidable grounds of illegality or procedural irregularity or some other
grounds which could have been validly averted. Judicial review is the basic feature of the
Indian Constitution and therefore, cannot be abrogated even by an amendment of the
Constitution. It is incorporated in Articles 226 and 227 of the Constitution insofar as the High
Courts are concerned. In regard to the Supreme Court Articles 32 and 136 of the Constitution
embody the principle of judicial review. Article 32 is included in Part III as a fundamental
right for enforcement of any of the fundamental rights conferred under Part III. Generally,
judicial review of any administrative action can be exercised on four grounds viz,

a) Jurisdictional Error

b) Irrationality

c) Procedural impropriety

d) Proportionality

e) Legitimate Expectation

These grounds of judicial review were developed by Lord Diplock in Council of Civil Service
Union v. Minster of Civil Service4. Though these grounds of judicial review are not
exhaustive and cannot be put in watertight compartments yet these provide sufficient base for
the courts to exercise their review jurisdiction over administrative action in the interest of
efficiency, fairness and accountability.

4
(1985) AC 410
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 1. Jurisdictional Error

The term “jurisdiction” means “power to decide”. The jurisdiction of the administrative
authority depends upon facts the existence of which is necessary to the initiation of
proceedings & without which the act of the Court is a nullity. These are called “jurisdictional
facts”. This ground of judicial review is based on the principle that administrative authorities
must correctly understand the law and it limits before any action is taken. Court may quash
an administrative action on the ground of ultra vires in following situations.

2. Irrationality (Wednesbury Test)

A general principle which has remained unchanged is that discretionary power conferred on
an administrative authority is required to be exercised reasonably. A person in whom is
vested a discretion must exercise his discretion upon reasonable grounds. A decision of the
administrative authority shall be considered as irrational if it is so outrageous in its defiance
to logic or accepted norms of moral standard that no sensible person, on the given facts and
circumstances, could arrive at such a decision. Irrationality as a ground of judicial review was
developed by the Court in Associated Provincial Picture House v. Wednesbury 5,later came
to be known as “Wednesbury test” to determine ‘irrationality’ of administrative action. The
local authority had the power to grant licenses for the opening of cinemas subject to such
conditions as the authority ‘thought fit’ to impose. The authority, when granting a Sunday
licence, imposed a condition that no children under the age of 15 years should be admitted.

The applicants argued that the imposition of the condition was unreasonable and ultra
vires the corporation’s powers. Stating that the Court should not substitute its view for that of
the corporation the court observed: interference would not be permissible unless it is found
that the decision was illegal or suffered from procedural improprieties or was one which no
sensible decision maker could, on the material before him and within the framework of law,
have arrived at it. The Court would consider whether relevant matters were not taken into
account or whether the action was not bona fide or whether the decision was absurd.

3. Procedural Impropriety

Failure to comply with procedures laid down by statute may invalidate a decision. Procedural
Impropriety is to encompass two areas: failure to observe rules laid down in statute; and a
failure to observe the basic common law rule of natural justice.

In Bradbury v Enfield London Borough Council 6, the Education Act 1944 provided that, if
a local education authority intends to establish new schools or cease to maintain existing
schools, notice must be given to the minister, following which, public notice must be given in
order to allow interested parties to comment. The Council breached the requirement of
public notice and the plaintiffs sought an injunction. The Council claimed that educational
chaos would occur if they were required to comply with the procedural requirements. That
plea met with little sympathy in court.

5
(1948) 1 KB 223
6
[1967] 3 All ER 434
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 4. Proportionality

Proportionality means that the administrative action should not be more drastic than it ought
to be for obtaining desired result. Proportionality is sometimes explained by the expression
‘taking a sledgehammer to crack a nut’. Thus, this doctrine tries to balance means with ends.
Proportionality shares space with ‘reasonableness’ and courts while exercising power of
review sees, ‘is it a course of action that could have been reasonably followed’. Courts in
India have been following this doctrine for a long time but English Courts have started using
this doctrine in administrative law after the passing of the Human Rights Act, 1998. Thus, if
an action taken by the authority is grossly disproportionate, the said decision is not immune
from judicial scrutiny. The sentence has to suit the offence & the offender. It should not be
vindictive or unduly harsh.

5. Legitimate Expectations

A legitimate expectation will arise in the mind of the complainant wherever he or she has
been led to understand — by the words or actions of the decision maker – that certain
procedures will be followed in reaching a decision. A Legitimate Expectation amounts to an
expectation of receiving some benefit or privilege to which the individual has no right.
Legitimate Expectation means expectation having some reasonable basis. The doctrine of
Legitimate Expectation has evolved to give relief to the people when they are not able to
justify their claims on the basis of law in the strict sense of the term, they had suffered civil
consequences because their legitimate expectation has been violated. Two considerations
apply to legitimate expectations. The first is where an individual or group has been led to
believe that a certain procedure will apply. The second is where an individual or group relies
upon a policy or guidelines which have previously governed an area of executive action.

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Criticism of Review: Limits and 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 provisions of the Constitution.

The duty of the court is to confine itself to the question of legality. It has to consider whether
a decision-making authority exceeded its powers, 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 in violation of Article 14 of the Constitution. The parameters of judicial
review must be clearly defined and never exceeded. If the authority has filtered 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 administrative 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 review is supervisory in nature.
Unless this restriction is observed, the court, under guise of prevention abuse of power by the
administrative authority, will itself be guilty of usurping power.

Finally, there are many types of criticisms against judicial review. Firstly, review is described
as being peripheral in three different senses; the first of which is that it does not consider
matters which are not ‘justiciable’ or not of a nature that is able to be decided by a court of
law. Secondly, there is no conclusive evidence to show that the outcomes of adverse judicial
review judgments cause administrators to change their decision-making methods in any way.
Thirdly, review does not necessarily grant applicants the kind the kind of relief they are
seeking. The applicants generally seek a favourable substantive decision, not merely the not
merely the same adverse decision remade in accordance with procedural requirements.

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The second criticism is that review is negative and retrospective. This means that rather than
aiming progressively at ensuring better future administrative decision-making, review focuses
on past mal administrative and seeks to cure defects that have already occurred.

Thirdly, review is criticised as being slow, expensive, time-consuming and deeply mysterious
to the layperson.

The last criticism is that the legitimacy of judicial review, whether it is undemocratic? This
criticism can be analysing by two ways, firstly the process of review does not enhance
participation of the public or the problem of non-participation and secondly that judicial
review involves usurpation by the judiciary of the function of the executive.

The conclusive point about the criticism is that, although they are true of judicial review, they
are only problematic when review is required to fulfil a different function then the one it was
created to. For example, despite the fact that it is true that review is backward looking and a
negative check, there should be other positive and progressive means of promoting good
governance. That way, judicial review would remain a curative power of the courts and
would only be employed as a final means to correct glaring legal errors.

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Remedies of Judicial Review

Five types of writs are available for judicial review of administrative actions under Article
32, and Article 226 of the Indian Constitution.

Writ of Habeas Corpus literally means “You may have the body” this writ is issued to
secure the release of a person from illegal detention or without legal justification. In simple
words, Court directs the person and even authority who has detained an individual to bring
such person before Court so that the Court may decide the validity, justification, jurisdiction
of such detention. It is to be filed by any person.

Writ of Mandamus means “To command the public authority” to perform its public duty in
India. It is a discretionary remedy even as all five writs are a discretionary remedy in nature.
Court has full power to refuse to entertain a writ petition. This writ cannot be issued on
President or Governor.

Writ of Quo Warranto is an ancient common law remedy. It is used against an intruder or
usurper of public office. Literally means “What is your authority”. Court directs the
concerned person that by what authority he holds the office. The Court may expel a person
from the office if he finds that he is not entitled to obtain such an office.

Writ of Prohibition is an extraordinary prerogative writ of prevention; it seeks to prevent

Courts, Tribunals, Quasi-judicial authorities and officers from exceeding their jurisdiction.
The main objective of this writ is to prevent the encroachment of jurisdiction. It is based upon
the famous saying “Prevention is better than cure.”

Writ of Certiorari deals with a method to bring the record of subordinate Court before the
Superior Court for correction of jurisdiction or error of law committed by them. In a simple
word, if any inferior Court decided the case beyond its powers than Apex Court and High
Courts correct the error by issuing this writ. Earlier it was used for criminal matters but later
on, it was started to use in civil cases too.

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Conclusion

Judicial review of administration is, in a sense, the heart of administrative law. It is certainly
the most appropriate method of inquiring into the legal competence of a public authority. The
aspect of an official decision or an administrative act that may be scrutinized by the judicial
process is the competence of the public authority. The important aspect of the study of
administrative law is the judicial control of administrative action.

The tremendous increase in the powers of the administrative authorities in the modern times.
Due to the increased powers of the administration judicial control has become an important
area of administrative law, because courts have proved more effective and useful than the
legislative or the administrative in the matter.

The doctrine of legitimate expectation in the latest recruit to a long list of concepts fashioned
by the courts to check the abuse of the exercise of administrative powers. This doctrine is
discussed keeping in view its impact on the flexibility of administrative action. The Public
accountability doctrine has developed in India through case law with special emphasis of
administrative powers as public trust. Doctrine of proportionality is fully established as a
constitutional law concept but its application in administrative law is still being debated. This
doctrine discusses various claims and counter claims.

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References

1. https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1104955_code639384.pdf?abstra
ctid=1104955&mirid=1
2. http://www.legalservicesindia.com/article/1581/Judicial-Review-of-Administrative-
Actions-in-India.html
3. https://www.lawreform.ie/_fileupload/consultation%20papers/wpJudicialReviewAdm
inAction.html
4. http://shodhganga.inflibnet.ac.in/bitstream/10603/38174/8/08_chapter%202.pdf
5. https://www.ebc-india.com/lawyer/articles/2005_8_25.htm
6. https://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=1456&context=cklawr
eview
7. http://bibliotecadigital.fgv.br/ojs/index.php/revdireitogv/article/download/35250/3404
8
8. https://www.vakilno1.com/supreme-court-of-india/administrative-law-judicial-
review-and-the-judiciary.html
9. https://www.lawctopus.com/academike/grounds-judicial-review-123/

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