Module V

Judicial Review of Administrative Actions

 Jurisdiction of Supreme Court and High Courts under Articles 32,136,226 and 227-
 Article 32, 136, 226 and 227 of Indian constitution provide strong powers to
the Courts to control the administrative authorities if they exceed their limit to
do what they should do, omit or abuse the powers given to them.
 Art, 32 and 226 of the constitution provide remedies by way of writs. Under
Article 32 (2) the Supreme Court of India is empowered to issue appropriate
directions or orders or writs, including writs in the nature of habeas corpus,
certiorari, mandamus, prohibition and quo-warranto which may be
appropriate. The five writs specifically mentioned in Article 32 (2) are known
as prerogative writs in English law.
 Article 32- Article 32 provides a “guaranteed” remedy for the enforcement of
those rights, and this remedial right is itself made a fundamental right by being
included in Part III. Where there is no question of the enforcement of a
fundamental right, Article 32 has no application.
 Article 136- Under Article 136 of the constitution, the Supreme Court is
empowered to grant special leave to appeal against an order or determination
of not only court of law but also of tribunal.
 Article 226- Under Article 226, the High-Court are empowered to issue
directions, orders or writs including writs in the nature of habeas Corpus,
mandamus, prohibition certiorari and quo warrato for the enforcement of any
of the rights conferred by Part III of the constitution or for any other purpose.
 Article 227- Article 227 gives powers of superintendence over all courts and
tribunal by the High-Court thought the territories in relation to which they
exercise jurisdiction.
 Difference between Article 32 and Article 226

Article 32 Article 226

1. Under Article 32 Supreme Court may 1. Under this Article Court may issue writs.
issue writs.
2. Article 32 is itself a fundamental right. 2. Article 226 is not fundamental right.
3. Since Article 32 itself is a fundamental
right therefore President of India may
Suspend it
4. Article 32 itself is a fundamental right
and constitution has granted a
fundamental right to move to Supreme
Court in case of breach of fundamental
right.
5. In case of breach of fundamental right a
person may invoke jurisdiction of
Supreme Court as a matter of right.
6. The Supreme Court can not, on the
ground of the existence of an adequate
legal remedy, decline to entertain a
petition under Article 32 for the right to
move the Supreme Court for the
enforcement of the rights conferred by
Part III of the Courts is itself a guaranteed
right.
3. During emergency the President of India
cannot suspend this Article.
4. No doubt under Article 226 High Court
may issue writs. But this jurisdiction is
discretionary in nature therefore reedy may
be refused also.
5. High Courts no doubt grant or issue writs
even for the enforcement of fundamental
right yet it is not obligatory for them
6. High Courts may take into consideration of
the existence of other adequate legal remedy
and decline to issue a writ if there exist other
adequate legal remedy.

 Public Law Review- Hebeas Corpus, Mandamus, Prohibition, Certiorari, Quo

Warranto-
 Habeas corpus-

The writ literally means “to have the body” this writ is issue to secure the release of person
from illegal detention or without legal justification, its deals with person right of freedom. In
simple words Court direct the person and even authority who has detained individual to bring
such person before Court so that Court may decide the validity, justification, jurisdiction of
such detention. It is to be filed by any person.

Who can apply for the writ of Habeas Corpus- The writ of habeas corpus can be made either
by the person detained or any other person provided that he is not an utter stranger, but is at
least a friend or relative of the imprisoned person.
Writ invoked against- Writ of habeas corpus can be invoked not only against the state but also
against any individual who is holding any person in unlawful custody or detention. In such
circumstances, it is the duty of the police to make necessary efforts to see that the detention is
got released but, if despite such efforts if a person is not found, the police cannot be put under
undue pressure to do impossible.

In Gopalan v. Government of India, the Supreme Court ruled that the earliest date with
reference to which the legality of detention may be examined is the date on which the
application for the same is made to the court.

Limitations on the issue of Habeas Corpus- The following are the limitations on the issue of
habeas corpus-

(i) The habeas corpus cannot be use as a device to evade the ordinary law for the review
revision or appeal of a judgment under which a person is imprisoned.

(ii) That the application should be in a proper manner.

(iii)That generally whenever there is an adequate alternative restraint remedy, habeas corpus
should not be given.

(iv) That for the issue o habeas corpus, the wrongful restraint must exist at the when the court
has to make the rule absolute for its issue.

 Mandamus-

It means that “To command the public authority” to perform its public duty in India. It is
discretionary remedy even as all five writs are discretionary remedy in nature. Court has full
power to refuse to entertain a writ petition. This writ is not lie on president, governor, state
legislatures, private individuals or any registered body.

Grounds for issuing this writ: Mandamus can be issued when the Government denies to itself
a jurisdiction which it undoubtedly has under the law, or where an authority vested with a
power improperly refuses to exercise it. The function of mandamus is to keep the public
authorities within the limits of their jurisdiction while exercising public functions.

The writ can be issued against: Mandamus can be issued to any kind of authority in respect
of any type of function “administrative, legislative, quasi-judicial, judicial Mandamus is used
to enforce the performance of public duties by public authorities. Mandamus is not issued
when Government is under no duty under the law.

Against whom a writ of Mandamus cannot lie-Normally a writ of mandamus cannot issue
against a private individual. Secondly, it will lie for the inference in the internal
administration of the authority. Thirdly, against the educational body, for the decision taken
by the unfair means committee of the University after giving opportunity of hearing the
examinee, the writ of mandamus will not issue.

 Certiorari-

Certiorari is an order or command issued by the High-Court to an inferior court or body

exercising judicial or quasi-judicial functions to transit the records of a cause or matter
pending before them the High-Court in order that its legality may be investigated and if the
order of an inferior court is found to be without jurisdiction or against the principle of natural
justice, it is quashed.

It enables a Superior Court, a court of record, to correct the orders and the decisions of
inferior courts and inferior Tribunals discharging judicial functions.

Grounds for this writ are:

i. Excess or failure to exercise the jurisdiction

ii. Violation of natural justice rules such as right of notice and hearing
iii. Violation of fundamental rights or statutory provisions of laws.
iv. Finding of facts which no person would have reached to the conclusion.

Grounds of refusal of the writ of certiorari-

The writ of certiorari may be refused on the following grounds:

(i) Where alternative remedy not availed.

(ii) Futile writ-Where the writ is futile, it will be refused.

 Prohibition-

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

Tribunals, Quasi-judicial authorities and officers from exceeding their jurisdiction. Main
object of this writ is to prevent the encroachment of jurisdiction. It is based upon “Prevention
is better than cure”.

Grounds for issuing this writ-A writ of prohibition is normally issued when inferior court or
tribunal:

i. Proceeds to act without jurisdiction or in excess of jurisdiction

ii. Proceeds to act in violation of rules of natural justice or
iii. Proceeds to act under a law which is itself ultra vires or unconstitutional or
iv. Proceeds to act in contravention of fundamental rights.

 Quo-warranto-

The quo-warranto proceedings affords judicial enquiry in which any person holding an
independent substantive public office, or franchise, or liberty, is called upon to show b what
right he holds the said office, franchise or liberty. If the inquiry leads to the finding that the
holder of the office has not valid title to it, the issue of the writ of quo-warranto ousts him
from the office.

Who can apply for the writ of quo-warranto –information in the nature of quo-warranto
would lie even at the instance of a relation who is not personally interested in the matter nor
affected by the illegal assumption of the office y the opposite party.

Writ issued against- It is the person against whom a writ of quo warranto is directed; who is
required to show by what authority the person is entitled to hold the office. While issuing
such a writ, the High court merely makes a public declaration of the illegality of the
appointment and will not consider other factors, which may be relevant for the issuance of a
writ of certiorari.

 Private law Review- Injunction, declarations, damages-

 Injunction- An injunction in the common law tradition is known as an

equitable remedy, which means that it is in the discretion of the court whether
or not to grant it. It is a court order, which in the majority of cases that orders
the party to whom it is addressed not to do a particular act. But broadly
speaking, it can be negative (i.e., forbidding a decision-maker from doing
something), or mandatory (i.e., ordering a decision-maker to do something).
   Declarations- This is simply asking the court to make a ruling on what the
law is. It is used in both public and private laws and is available in wider
circumstances than the prerogative orders. Its main purpose is to determine or
ascertain what the law says without changing the legal position or rights of the
parties. It declares what the law is or says in relation to a certain uncontested
fact.
 Damages- In legal parlance, the term damages is usually used interchangeably
with the term compensation. The purpose of awarding damages in this context
is to repair the pecuniary or non-pecuniary harm inflicted upon the
complainant because of administrative wrongs. Damages are purely a private
law remedy that can be claimed by the victim of a wrongful act in accordance
with the dicta of private law. A claim for award of damages can be filed before
the reviewing court, but the granting of the award depends on whether or not
the decision rendered is invalid on the grounds of the public law principles at
the same time constitutes a civil wrong in private law such as torts and
contract and whether or not the applicant suffers a compensable injury due to
such private wrong. 

 Doctrine of Proportionality-

 Doctrine of proportionality is a principle that is prominently used as a ground

for judicial review in cases of administrative action. The doctrine was
developed in Europe and it is a vital part of the European administrative law.
The doctrine essentially signifies that the punishment should not be
disproportionate to the offence committed or the means that are used by
administration to obtain a particular objective or result should not me more
restrictive than that are required to achieve it.
 “’Proportionality’ is a principle where the Court is concerned with the
process, method or manner in which the decision-maker has ordered his
priorities, reached a conclusion or arrived at a decision.”1
 In India the doctrine of proportionality was adopted by the Supreme Court of
India in the case of Om Kumar v. Union of India. In this case the Apex court

1
Coimbatore District Central Coop. Bank v. Employees Assn, (2007) 4 SCC 669
 observed that Indian courts have been using this doctrine since 1950, in cases
of legislations violating fundamental rights enshrined in Article 19(1) of the
constitution. Although the Doctrine has been adopted in India in a very
restrictive manner.
 The doctrine of proportionality requires a body to maintain balance between
its action and purpose for which the powers have been conferred.
 Cases-

1. Om Kumar v. Union of India-  The Doctrine of Proportionality was adopted in Om

Kumar v. Union of India. in this case the disciplinary authority had asked the SC to
reconsider the quantum of punishment given to four civil servants, the court refused to
re-consider the quantum of punishment as no principle of law was violated nor the
punishment was “Shockingly Disproportionate” to the mischiefs committed by the
concerned persons. This position of law was crystallised by the Supreme Court itself in
later cases.

2. Union of India v. Rajesh PU, Puthuvalnikathu2- In the present case, applications for
some vacant posts were invited by the CBI. Allegation of “nepotism and favouritism”
were brought up during physical efficiency test. Also some irregularities were claimed
during the written as a result, the selection list was cancelled. This was challenged before
the court.  In an enquiry conducted by HC it was revealed that the impact of nepotism
and irregularities can be identified and there was no reason to cancel the entire list of
selected candidates. The court found irregularities in 31 selected candidates, the HC
passed an order accordingly. The HC court order was challenged before the Supreme
Court and it accepted the position taken by the High Court and held that the Doctrine of
Proportionality states that the administrative authority should not take action severer
than required to meet the purpose. The Court said that in this there was no reason to
cancel the entire list, it was sufficient to only cancel the selection of those 31 candidates
in whose selection irregularities were found and proved.

2
Union of India v. Rajesh PU, Puthuvalnikathu, (2003) 7 SCC 285
  Res Judicata-

Res Judicata is a phrase which has been evolved from a Latin maxim, which stand for ‘the
thing has been judged', meaning there by that the issue before the court has already been
decided by another court, between the same parties. Therefore, the court will dismiss the case
before it as being useless. Res Judicata as a concept is applicable both in case of Civil as well
as Criminal legal system.

The term is also used to mean as to ‘bar re-litigation' of such cases between the same parties,
which is different between the two legal systems. Once a final judgment has been announced
in a lawsuit, the subsequent judges who are confronted with a suit that is identical to or
substantially the same as the earlier one, they would apply the Res Judicata doctrine ‘to
preserve the effect of the first judgment'. This is to prevent injustice to the parties of a case
supposedly finished, but perhaps mostly to avoid unnecessary waste of resources and time of
the Judicial System.

The Scope of Res Judicata has very well been decided in the case of Gulam Abbas v. State of
U.P. where the code embodies the rules of conclusiveness as evidence or bars as a plea of an
issue tried in an earlier suit founded on a plaint in which the matter is directly and
substantially an issue becomes final. Section 11 does create any right or interest over the
property but merely operates as a bar to try the issue ‘once again'. The Court is assumed and
applied to all the judicial bodies working in India.

Therefore, Res Judicata in a nut shell is a judicial concept wherein the Courts do not allow a
petition to be filed in the same or to the other Court for the doctrine of Res Judicata would
apply and the party would not be allowed to file the petition or to continue the petition (as the
case may be).

 Ouster/ Finality Clause-

An ouster clause or privative clause is, in countries with common law legal systems, a

clause or provision included in a piece of legislation by a legislative body to
exclude judicial review of acts and decisions of the executive by stripping the courts of
their supervisory judicial function.

According to the doctrine of the separation of powers, one of the important functions of

the judiciary is to keep the executive in check by ensuring that its acts comply with the
law, including, where applicable, the constitution. Ouster clauses prevent courts from
carrying out this function, but may be justified on the ground that they preserve the
powers of the executive and promote the finality of its acts and decisions.

According to the doctrine of the separation of powers, one of the important functions of

the judiciary is to keep the executive in check by ensuring that its acts comply with the
law, including, where applicable, the constitution. Ouster clauses prevent courts from
carrying out this function, but may be justified on the ground that they preserve the
powers of the executive and promote the finality of its acts and decisions.

The parliament's "power to destroy is not a power to amend", and hence the power of
judicial review may not be abrogated either by the ordinary process of legislation or
through the procedure of constitutional amendment. Therefore, it might be argued that
ouster clauses, which are intended to make decisions by public authorities and other
decision-makers final and unchallengeable before the courts, should be held void and
ineffective as they deprive the aggrieved party of an avenue of seeking judicial review.

 When the clause is clear, unambiguous and specific accepted notions of contract would
bind the parties and unless the absence of ad idem can be shown, the other Courts should
avoid exercising jurisdiction. As regards construction of the ouster clause when words
like 'alone', 'only', 'exclusive' and the like have been used there may be no difficulty. ... In
such a case mention of one thing may imply exclusion of another.

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