JUDICIAL REVIEW & CONTROL of ADMINISTRATIVE ACTION

TANYA AHUJA
A3256119080
SECTION-B
ADMINISTRATIVE LAW

SUBMITTED TO- Ms.PRIYANKA GHAI

Abstract
A court having judicial review authority can declare laws and government functions
unconstitutional. The judiciary's ability to supervise the legislative and executive branches
when they exceed their authority is one of the checks and balances in the division of powers.
The process and substance of judicial review might change between and within countries
since the doctrine differs from jurisdiction to jurisdiction. In India, the laws governing
judicial review of administrative action are based on common law. The most notable aspect
of this was the application of constraints on the authority of public officials by ordinary
courts of law.
Judicial Control of Administrative Action, on the other hand, refers to the courts' control of
the administration based on court-established rules. The power of administrative authorities
has risen dramatically, causing implications in India's socio-economic sector.

Introduction

Any activity that isn't legislative or judicial in character is referred to as administrative action.
It is narrowly focused on the treatment of a single situation and lacks generalisation. It has no
legal obligations when it comes to acquiring information or considering arguments. It is
based on subjective satisfaction, with policy and expediency as the leading factors. It doesn't
mean that when the authority is using regulatory authorities, natural justice requirements can
be ignored completely. Unless the law says differently, regardless of the specifics of the case,
a minimum of natural justice requirements must always be followed.

In A.K. Kraipak v. Union of India1The court stated that in order to determine whether an
administrative action is quasi-judicial or administrative, the court must look at the nature of
the power conferred, who is granted authority, what mechanism is used to confer power, and
what the consequences are.

Administrative activity is examined by the courts as part of enforcing constitutional discipline

on administrative authorities as they use their authority. It originated in England and has
since expanded throughout the common law world. England also introduced the notion of
judicial review to India.
Judicial Review is an effective technique for ensuring that rules are neither unfair, unequal,
harassing, or unconstitutional. The foundation of constitutionalism, which is limited
government, is judicial scrutiny. In order to defend citizens' liberty and rights, judicial review
has been acknowledged as a necessary and basic prerequisite for the development of an
evolved society.

The Supreme Court and the High Courts of India have significant judicial review authority.
Judicial review refers to the court's ability to examine the actions of other arms of
government, particularly the capacity to declare illegitimate fictions taken by the legislative
and executive branches as "unconstitutional."
I examine one facet of India's judicial review amenability standards in this paper. I delve
more into the impact of Article 122 on the determination of amenability to judicial review
under Article 226.

RESEARCH OBJECTIVES

● Impact of excessive judicial control.

1 A.K. Kraipak v. Union of India, AIR 1970 SC 150
2 THE CONSTITUTION OF INDIA, 1950, PART III FUNDAMENTAL RIGHTS General, ARTICLE-12 Definition.
 ● The legal analysis of the right to judicial review.
● To study, understand the implication and viability of Judicial Review and control of
administrative action.

RESEARCH PROBLEMS

Due to the novelty of the subject, there has been no in-depth study on it in India as a whole,
although various postings, remarks, and proposals have been published on similar parts of the
topic, all with an international slant, during the time frame given for the literature review. All
sites gave a very basic understanding of judicial review, and several articles echoed similar
sentiments.

RESEARCH QUESTIONS
1. What does judicial review mean?
2. What are the constitutional provisions to judicial review?
3. What are the ways in which fundamental rights influence judicial review?
4. What is the impact of Article 12 of Judicial Review under Article 226?

HYPOTHESIS

Judicial review of administrative action is a topic that has yet to be completely explored. Few
people are aware of its constitutional provisions. The judicial review system in India is set up
in a unique fashion. The writs, or judicial review remedies, and the review jurisdictions of the
Supreme Court of India and the High Courts are truly British legacies.

SCOPE OF STUDY

In any democratic system, citizens have authority over the government because democracy is
defined as "government of the people, by the people, and for the people." It is common
knowledge that judicial review is the lifeblood of a democratic society, since it safeguards the
rule of law and keeps democracy alive.
The purpose of this study is to look at how judicial review and oversight of administrative
activities work. In order to attain the stated purpose, this study will also analyse the legal
judgments of several Indian courts on this topic. This study would also demonstrate the
appropriateness and viability of using judicial review based on the experience of other
countries.
The purpose of this paper is to investigate the fundamental rights that influence judicial
review, as well as the impact that Article 12 of the Judicial Review Act has on Article 226.
The focus of the article is on judicial review of government activities.

RESEARCH METHODOLOGY

The total investigation was carried out by consulting a variety of well-known and unfamiliar
websites. I consulted a wide range of websites and the Judicial Review and Control of
Administrative Action for this topic. I conducted my research using a doctrinal approach. A
doctrinal research project is one that has been carried out on a legal topic or proposition by
analysing existing statute provisions and cases and using reasoning power to them. The focus
of the study will be on analysing and collecting data from a range of books, journal papers,
newspaper articles, and publications, as well as an online database.

1. JUDICIAL REVIEW AND CONTROL OF ADMINISTRATIVE

ACTION
Judicial Review is an effective technique for ensuring that laws are neither arbitrary,
unjust, harassing, or unconstitutional. The foundation of constitutionalism, which is
limited government, is judicial scrutiny. Any activity that isn't legislative or judicial in
character is referred to as administrative action. It is narrowly focused on a single
situation and lacks generalisation. It has no legal obligations when it comes to
acquiring information or considering arguments. It does not establish a right, but it
can influence one.
 However, while the authority is exercising "administrative powers," natural justice
ideals cannot be completely ignored. Unless the law says differently, regardless of the
specifics of the case, a minimum of natural justice requirements must always be
followed.
Administrative action might be statutory, that is, it has legal force, or it can be non-
statutory, that is, it does not have legal effect. The majority of administrative activity
is statutory because it is based on a statute or the Constitution, but it can also be non-
statutory in specific circumstances, such as giving non-binding orders to subordinates
that can lead to disciplinary action. Despite the fact that administrative action is often
arbitrary and dependent on subjective satisfaction, the administrative authority must
operate fairly and impartially. Judicial control of administrative activity refers to the
courts' review of administrative action utilising rules set by the courts.
The grounds3 for judicial review for administrative action are:

● Illegality
● Proportionality
● Procedural impropriety
● Irrationality

2. WHAT ARE THE CONSTITUTIONAL PROVISIONS TO

JUDICIAL REVIEW?

Administrative and constitutional law are inextricably linked in India. The

Constitution's "fundamental structure," which can only be modified by amendment,
includes judicial scrutiny. Not only does the Constitution grant the courts judicial
review power, but it also establishes some of the grounds for administrative action
review. Basic rights violations are a foundation for judicial review under Section Ill of
the Constitution, and several common law grounds of judicial review, such as natural
justice, have been ruled to be part of fundamental rights.
Article 32 of the Constitution and Article 226 of the Constitution bestow writ
authority on the Supreme Court India and the High Courts, respectively.

3 COUNCIL FOR CIVIL SERVICE UNION Vs MINISTER CIVIL SERVICE; [1984] UKHL 9
 The right to bring a justifiable legal action in the Supreme Court to enforce the
benefits given by this Part is guaranteed. Part III of the Constitution, which contains
the constitutional rights, is referred to as "rights bestowed by this Part" in the Article.
2.1. Notwithstanding anything in Article 32, every High Court shall have the
power to issue to any person or authority, including in appropriate cases, any
Government, within those territories, directions, orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto,
and certiorari, or any of them, for the enforcement of any law4.
2.2. The power granted on a High Court by Article 226 does not preclude the
Supreme Court from using the power conferred on it by clause (2) of Article
32.
2.3. Unlike the Supreme Court's writ authority under Article 32, High Court’s
authority is not confined to the protection of fundamental rights. When a legal
right is violated, the High Courts have the authority to issue writs. Other than
prerogative writs, High Courts can issue directives, orders, or writs. However,
apart from clear constitutional provisions on judicial review, Indian
administrative law is essentially judge-made, with principles derived through a
process of refining judicial opinion stated in a significant number of judicial
decisions. The scope and other grounds of judicial review, aside from
defending fundamental rights, are not clear in these laws and must be inferred
from judicial statements.

3. WHAT ARE THE WAYS IN WHICH FUNDAMENTAL RIGHTS

INFLUENCE JUDICIAL REVIEW?

Fundamental rights have an impact on the scope of judicial review in two ways. The
first form of influence concerns the connections between basic rights and judicial
review grounds.

4 THE CONSTITUTION OF INDIA, 1950; CHAPTER V.-THE HIGH COURTS IN THE STATES, Article-
226 Power of High Courts to issue certain writs. Available at https://www.india.gov.in/my-
government/constitution-india
https://legislative.gov.in/sites/default/files/COI_1.pdf
(visited on 2nd October.2021)
 3.1. Fundamental rights and justifications for administrative action review:
Because the authority of judicial review by courts is inextricably linked to the
goal of enforcing fundamental rights, a breach of a fundamental right is
inevitably one of the most common grounds for judicial review. A common
foundation for seeking judicial review of administrative acts under Article 32
and Article 226 has been a violation of the fundamental right to equality under
Article 14. However, the courts have construed Article 14 guarantee to
equality to include certain common law grounds for judicial review,
effectively raising those grounds to basic rights. This phenomenon has been
dubbed "constitutionalization of administrative law," and it has been criticised,
especially in the context of judicial scrutiny of legislative action. In the
context of judicial review of administrative action, constitutionalizing has
been criticised for generating certain anomalous effects in the application of
natural justice principles. Other common law judicial review grounds, such as
substantive or procedural ultra vires, failure to recognise relevant evidence, or
reasonable expectation, are less well defined in respect to Article 14 or any
other constitutional right. Article 14 has, on the other hand, been construed as
a blanket restriction on arbitrary government action.
3.2. Fundamental rights and amenability criteria: The Indian judiciary has
established a series of criteria for assessing whether a person or conduct is
subject to judicial review. These factors can be analysed for their institutional
aspect, which determines amenability based on the entity's existence, as well
as their (ill) functional aspect, which determines amenability based on the
nature of the purpose or task performed. It defines "government" to include
the Indian government and parliament, state governments and legislatures,
local governments, and "other authorities" inside India's territory or under the
jurisdiction of the Indian government for the purposes of Part III of the
Constitution. Article 12 is identical to Section 6 of the United Kingdom's
Human Rights Act, 19985, which defines "important public authorities"
(HRA). Unlike Section 6 of the HRA, however, Article 12 makes no mention

5HUMAN RIGHTS ACT, 1998, UNITED KINGDOM; 1998 CHAPTER 42, Available at
https://www.legislation.gov.uk/ukpga/1998/42/data.pdf , visited on 29th September,2021
 of hybrid private companies that may be regarded part of the "State" only for
public-sector activities but are otherwise private.
3.3. The term "other authorities" in Article 12 has been a source of judicial
interpretation for several years, primarily to decide whether any ostensibly
private person fits within the purview of "other authorities" and is thus subject
to rights-based judicial scrutiny.
3.4. In writ petitions filed under Article 32 and Article 226, for example, courts
have interpreted Article 12. The following analysis is based on some of the
most widely referenced judicial review instances in which the courts applied
"other authorities" to the facts. Rajasthan State Electricity Board v Mohan
Lal6(hereafter referred to as Rajasthan Electricity) is a fundamental decision
on the interpretation of Article 12 that was decided in 1967.
3.5. It involved a petition filed under Article 226 stating that Article 14 had been
violated. One of the problems was whether the company in question (a body
corporate formed under the Electricity (Supply) Act 1948) was under the
definition of "other authorities" under Article 12 and so was subject to
jurisdiction of the High Court under Article 226.
3.6. However, Article 226 the jurisdiction is not confined to the protection of
Article 14 or other fundamental rights, it should be recognised that Article 12
is not always relevant. The following features of the decision show that the
amenability requirements for rights-based review have been broadened.
3.6.1. Expansion of state activity and constitutional limitations.
3.6.2. Application of the "sovereign power" test
3.6.3. The purpose of the corporation.

4. WHAT IS THE IMPACT OF ARTICLE 12 OF JUDICIAL

REVIEW UNDER ARTICLE 226?
The Supreme Court power under Article-32 is unaffected by Article-226. The High
Court's jurisdiction extends to the entire state of that High Court, as well as regions
outside the state, if the cause of action is related to the state, government, or person in
question.

6 Rajasthan State Electricity Board v Mohan Lal, AIR 1967 SC 25

 The Supreme Court of India concluded in Anadi Mukta Sadguru v VR Rudani7 that
the terms "any person or authority" in Article 2268 are "not to be confined merely to
statutory authorities and State instrumentalities." They could apply to any other
person or entity performing a public function. The shape of the body in question is
unimportant. What matters is the nature of the obligation placed on the body.
Article 226- definition of "any person or authority" is broader than Article 129-
definition of "other authorities*." According to the Supreme Court, there is no reason
to define the amenability criterion because basic rights are irrelevant to non-rights-
based examination. According to the Supreme Court, the nature of the duty is the sole
condition for suitability for non-rights-based evaluation. Article 12 remains crucial in
assessing the acceptability of non-rights-based evaluations.

5. CONCLUSION
Administrative law is based on judicial review of administrative activities in some
ways. It's a terrific approach to see if a government agency is operating legally.
Judicial review is a basic feature of our Constitution. The general public believes that
if the government performs any function or acts under the discretionary power
conferred on it by legislative norms or the Indian Constitution, it is acting in the best
interests of the people. The public's only recourse is to go to the judiciary under
Article 32,136 or Article 226 of the Indian Constitution if there is a failure to exercise
discretion or a misuse of discretion to settle a score or seek private advantage as a
result of this discretion power. As administrative bodies' powers have risen
considerably, judicial review has become an important topic of administrative law.
The basic purpose of judicial review is to defend people' interests against regulatory
bodies who abuse their power or engage in illegal behaviour.

7 Anadi Mukta Sadguru v VR Rudani, [1989 SCC (2) 691]

8 THE CONSTITUTION OF INDIA, 1950; CHAPTER V.-THE HIGH COURTS IN THE STATES, Article-
226 Power of High Courts to issue certain writs. Available at https://www.india.gov.in/my-
government/constitution-india
https://legislative.gov.in/sites/default/files/COI_1.pdf
(visited on 2nd October.2021)
9 THE CONSTITUTION OF INDIA, 1950; CHAPTER III, PART III FUNDAMENTAL RIGHTS, General
Article-12. Definition. Available at https://www.india.gov.in/my-government/constitution-india
https://legislative.gov.in/sites/default/files/COI_1.pdf
(visited on 2nd October.2021)