Limitation of Judicial Review of Administrative Actions

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 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. 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.

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.
A.2.1. Justification of Judicial Review-

When court review administrative action, they will generally frame their enquiry on
one of the grounds of review. These grounds then enable the court to decide whether or not
there was illegality or irregularity in taking the action and then hand down an appropriate
remedy. However, these grounds are merely indications of the more general concept which
underlies the rationale of judicial review is legality. The basis behind the judiciary’s power to
control actions of the executive has historically been rooted in the doctrine of ultra vires. This
means that the executive can only act legitimately where their conduct is lawful, which must
be authorised by an empowering provision.

Before considering the proper role of courts in reviewing administrative action, it

should firstly be established why and how courts are empowered to intervene. In a model of
separation of powers, each branch of government has their own constitutional and
institutional function. However, there are times when those strict boundaries will be
infringed. One such case is when the courts review the acts of the administrative branch. 1
However, these infringements are parts of the concept of the separation of powers and fulfil
to role of check and balances against power.

Public authorities cannot act as they please. Their actions must be lawful and
legitimate and they may only exercise the powers given to them expressly or impliedly by
Parliament or by Constitution. The basis for judicial review is that the courts have the power
to evaluate conduct of the executive which falls outside of their mandate. 2 The reason for this
is that all public power is subject to a form of judicial review. In general sense, ‘judicial
review’ refers to judicial control of public decision-making in accordance with rules and
principles of administrative law.3 Judicial review involves a process whereby courts can
identify and cure illegalities and irregularities committed by the administration.

1
‘The powers of all public authorities are subordinated to the law... they are all subject to legal limitations; there
is no such thing as absolute or unfettered administrative power... The primary purpose of administrative law,
therefore, is to keep the powers of government within their legal bounds, so as to protect the citizen against their
abuse.’ Wade and Forsyth, Administrative Law, p 5 (Oxford University Press, UK, 10th edn., 2010)
2
‘The British system of administrative law, which is followed throughout the English-speaking world, has some
salient characteristics... the outstanding characteristic of the Anglo-American system is that the ordinary courts,
and not special administrative courts, decide cases involving the validity of governmental action.’ Wade and
Forsyth, Administrative Law, p 10 (Oxford University Press, UK, 10th edn., 2010)
3
Peter Cane, Administrative Law, p 28 (Oxford University Press, UK, 1th edn. 2004)
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.4

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 qui 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

The doctrine of judicial review is the basic feature of our 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 and without it there will be no
government of laws and the rule of law would become a teasing illusion and a promise of
unreality. In recent times, judicial review of administrative action has become extensive and
expansive.

A.2.2. Grounds for Judicial Review of Administrative Actions-

Judicial review of any administrative action can be exercised on four grounds-

1. Illegality,
2. Irrationality (Unreasonableness),
3. Procedural impropriety,
4. Proportionality,

4
Chief Constable v. Evans, (1982) 3 All ER 141; L. Chandra Kumar v. Union of India, AIR 1997 SC 1125
5
AIR 1980 SC 1789
6
Tata Cellular v. Union of India, AIR 1996 SC 11,13
 These grounds of judicial review were developed by Lord Diplock in Council of Civil
Services Union v. Minister of Civil Services 7. 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.

1. Illegality- This ground of judicial review is based on the principle that administrative
authorities must correctly understand the law and its limits before any action is taken.
Court may quash an administrative action on the groud of illegality in following
situations-
i. Lack of jurisdiction,
ii. Excess of jurisdiction ( doctrine of Ultra virus),
iii. Abuse of jurisdiction,
iv. Failure to exercise jurisdiction,
2. Irrationality (Unreasonableness or Wednesbury test)- Irrationality as a ground of
judicial review was developed by the Court in Associated Provincial Picture House v.
Wednesbury8, later came to be known as “Wednesbury test” to determine ‘irrationality’
of and administrative action.
Irrationality in umbrella sense may include: Taking into consideration irrelevant
material; ignoring relevant considerations; using power for improper purpose; exercising
power in mala fide manner. However, when used in ‘substantive test’ it may mean that
administrative action is so irrational that no public authority could take it.
3. Procedural Impropriety- Procedure of a decision is as important as the decision itself
because if ‘procedure’ is not fair, decision cannot be trustworthy. Therefore, Courts have
insisted on a ‘fair procedure’ requirement in every administrative action. Where statute is
silent, courts have insisted that administrative authorities must follow the principles of
natural justice which provide fair minimum administrative procedure which every
administrative authority mist follow while taking a decision which has civil or evil
consequences.
4. Proportionality- Proportionality means that the administrative action should not be
more drastic than it ought to be for obtaining desired result. This implies that canon
should not be used to shoot a sparrow. Thus this doctrine tries to balance means with

7
(1984) 3 All ER 935 (HL)
8
(1948) KB 223
 ends. Proportionality shares space with ‘reasonableness’ and courts while exercising
power of review.

The grounds of judicial review of administrative which discussed above is now a days is
concentrated to the two basic doctrine i.e. test of unreasonableness and doctrine of ultra
vires. Aristole once said that the generalities of law faulter before the specifies of life, thus
courts while exercising their power of review always try to balance generalities with
specifies in order to meet the ends of justice9.

A.2.3. Facilitation of Review: The Traffic Light Theories

The purpose with which review is employed is an essentially important aspect of how
it is used as a safeguard against the abuse of public power. The traffic light theory is
especially useful in determining the role that judicial review plays. The theory is a way of
describing approaches to the control of public and administrative power by the courts and the
intention with which the courts exert jurisdiction. The theory uses the example of two stages
of a traffic light, the red light theory and the green light theory.

The red light theory indicates courts as watchdogs whose primary function is to curb
the misuse of administrative power. It is based on the assumption that every power tends to
corrupt and absolute power tends to corrupt absolutely. Its object is to keep government
agencies and administrative authorities within the bounds of law through judicial control.
This may often lead to judicial activism. The red light theory has at its centre the rule of law.
This means that courts are the primary weapon of the citizen against the state and the control
of the executive.

The green light theory, on the other hand, views courts as facilitators to administrative
justice. Rather than merely curbing executive power, they encourage good governance and
facilitate better operations in the administrative sphere. In this way, green light theory
favours the ‘administrative state’ and identifies administrative law as a vehicle for positive
social change. The focus of green light theory must then also be the reform and change of the
legal system itself and naturally the theory focuses on the alternatives to courts, especially
the construction of so called administrative courts. Green light theory also places far less
emphasis on judges and courts.
9
I.P.Massey, Administrative Law, p 399 (Eastern Book Company, Luckow, 7th edn. 2008)
 Both the theories have their own merits and pitfalls. In most of the legal system,
therefore, there is combination of two theories. In other words, reality lies somewhere
between the pure ‘red’ and ‘green’ light models, in and ‘Amber light theory’. As observed in
R. v. Lanchashire County Council, 10 Sir John Donaldson observed that, a new relationship
has emerged between the courts and those who desire their authority from the public law. It
is one of partnership based on a common aim like, maintenance of highest standards of
public administration.11

A.2.4. 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.12

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 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.13

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.14

10
(1986) 2 All ER 945
11
C.K.Takwani, Lectures on Administrative Law, p 8 (Eastern Book Company, Lucknow, 4th edn. 2008)
12
S.R.Bommai v. Union of India, AIR 1994 SC 1918
13
Ibid., see also State Board of High School v. Kumari Chitra Srivastava. AIR 1970 SC 1039; Fertilizer Corpn.
Kamgar Union v. Union of India, AIR 1981 SC 344.
14
Ibid., see also, Tata Cellular v. Union of India, AIR 1996 SC 11.
 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.15 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.

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 maladministrative and seeks to cure defects that have already
occurred.16

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.

15
Fuller “The Forms and Limits of Adjudication” p 353. 92 Harvard LR, (1978-1979)
16
Peter Cane, Administrative Law, p 378 (4th edn. 2004)