JUDICIAL REVIEW OF ADMINISTRATIVE ACTION

Table of Contents

S.No. TOPIC PAGE No.

1 Introduction:
Administrative Law 2
Judicial Review 3
2 Judicial Review of Administrative Action 4
3 Jurisdictional Error 5
4 Irrationality 6
5 Procedural Impropriety 6
6 Proportionality 7
7 Legitimate Expectation 8
8 Habeas Corpus 9
9 Mandamus 9
10 Certiorari 9
11 Prohibition 9
12 Quo Warranto 9
13 Conclusion 10
INTRODUCTION

ADMINISTRATIVE LAW

In India, administrative law has been recognized as a separate branch of legal discipline in the
mid-twentieth century. Before the recognition of administrative law, the duties of the State
were limited and revolved around the maintenance of public order, the conduct of foreign
affairs, and the disposal of the armed forces. Today, the administration plays an important
role and the state intervenes freely and deeply on every aspect of the lives of its citizens to a
very considerable degree. It has become an important part of various studies and research.
Administrative law contributes to the stability and growth of society and the maintenance of
social order and the welfare of mankind and liberty. It is a body of reasonable limitations and
affirmative action parameters, developed, and operationalized by the legislature and the
courts to uphold and sustain a rule of law society. The establishment of administrative law is
to keep a check on abuse of administrative powers to guarantee the citizens an impartial
determination of their disputes by officials, protecting their rights and interests from
unauthorized encroachment and making those who exercise public power accountable to the
people.

Administrative law is described 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 official action is reached and reviewed in relation to individual
liberty and freedom. Administrative law is primarily concerned with the official action, which
is related to the rule-making action, adjudicatory action, and rule-application action.

Administrative actions are actions that are carried out under administrative law. It is a legal
action that is concerned with the conduct of a public administrative body. This type of action
can force an authority to take some action.1

Administrative action is neither a legislative nor judicial action it is the residuary action
concerned with the treatment of a certain situation and thus devoid of generality. It is not
concerned with the procedural obligations of collecting evidence and weighing argument but
is based on subjective satisfaction where the decision is based on policy and expediency. It
may affect a right even though it does not decide a right. However, it does not mean that
while exercising administrative powers the authority can ignore the principles of natural
1
Usha Antharvedi, Judicial Review of Administrative Actions and Principles, SSRN, Date Written: March 11,
2008, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1104955.
justice. Unless provided by the statute a minimum of the principles of natural justice must
always be observed depending on the facts of each case.

In case A.K. Kraipak v. Union of India2, the Court was of the view that “in order to
determine whether the action of the administrative authority is quasi-judicial or
administrative, one has to see the nature of the power conferred, to whom power is given, the
framework within which power is conferred and the consequences.”

Administrative law is part of the valiant enterprise of responsibility. The basic expectation in
a rule-of-law society is that holders of public power and authority must be able to publicly
justify their actions as legally valid and socially wise and just.

Administrative action may be statutory or non-statutory i.e. having the force of law or devoid
of such legal force. It is statutory because a statute or the Constitution gives it a legal force. In
cases such as issuing directions to subordinates not having the force of law, but its violation
may be followed by disciplinary action it becomes non-statutory.

JUDICIAL REVIEW

Judicial review has been recognized as an essential component of the rule of law and a basic
requirement for the building of a progressive civilization to safeguard the liberty and rights of
the citizens. In India, the Supreme Court and the High Courts are entrusted with the power of
judicial review. It is a court’s authority to review the actions of other branches or levels of
government, especially the court’s power to deem invalid any law or order exercised by the
legislative and executive which is inconsistent or in conflict with the basic law of the land as
unconstitutional.

Judicial Review is the check and balance machinery to maintain the separation of powers. Its
efficacy exists because it is very flexible i.e. judicial review's inherent flexibility provides the
citizens with a remedy when a statute does not confer a review or appeal and where one
might otherwise not exist.

In India, the courts are granted extraordinary powers to regulate and review administrative
actions. The Courts play a creative role in the growth and development of administrative law.

2
(AIR 1970 SC 150)
In the process of judicial review of legislative and executive action, the courts pick out the
golden thread of purpose and meaning in law; they form and mould the law, reveal its fitness
and nuances, smooth the angularities, strike down the terrible law or illegal movement, and
most crucial to all, exert the strong moral forces of restraint in times while expediency is all.3

The first case which interpreted and originated the concept of judicial review in India is the
case of Emperor vs. Burah4. It was in this case that the High court and Privy Council
adopted the view that Indian courts had the power of judicial review with some limitations
and that the aggrieved party had the right to challenge the constitutionality of a legislative
Act enacted by the Governor-General council exceeding the power given to him by the
Imperial Parliament.

Judicial review in India deals with:

 Judicial Review of Legislative Actions;

 Judicial Review of Administrative Actions;
 Judicial review of Judicial Actions.

JUDICIAL REVIEW OF ADMINISTRATIVE ACTION

One of the most important developments in the field of public law may be the system of
Judicial review of Administrative action which originated from Britain.

The principle of jurisdiction that determines the reviewability of administrative action is often
expressed as want or excess jurisdiction; the underlying doctrine is referred to as ultra-vires.
Ultra-vires refers to the action which is made in an excessive manner or outside the ambit of
the acting party. Therefore the courts in India can interfere with the discretionary powers
exercised by the administration mostly on two grounds:

 failure to exercise discretion

 excess or abuse of discretion.5

3
Mohd Aqib Aslam, Judicial Review of Administrative Actions An Overview, LEGALSERVICEINDIA
https://www.legalserviceindia.com/legal/article-1979-judicial-review-of-administrative-actions-an-
overview.html
4
[ 1877] 3. ILR 63 ( Cal)
5
Prashant Gupta, Doctrine Of Judicial Review: A Comparative Analysis Between India, U.K. and U.S.A,
Broadly categorized into

1. Jurisdictional Error;
2. Irrationality;
3. Procedural Impropriety;
4. Proportionality;
5. Legitimate Expectation.

These grounds of judicial review were given by Lord Diplock in the case of Council of Civil
Service Union v. Minister of Civil Service 6(1984).

JURISDICTIONAL ERROR

The term ‘jurisdiction’ means the power to decide. The court may reject an administrative
action on the ground of ultra vires in the following situations:

 lack of jurisdiction
 excess of jurisdiction
 abuse of jurisdiction

Lack of Jurisdiction

The court may review this administrative action on the ground that the tribunal or authority
exercised jurisdiction which it was not supposed to or where it had no power or jurisdiction at
all to pass an order. This review power can be exercised on the following three grounds :-

 That the law under which the administrative authority is constituted and exercising
jurisdiction is itself unconstitutional.
 That the authority is not properly constituted as the law requires.
 That the authority has mistakenly decided a jurisdictional fact and henceforth
assumed jurisdiction which did not belong to it first.7

Excess of Jurisdiction

6
(The GCHQ case) [1985] AC 374, [1985] ICR 14
7
Sushmita Choudhary, Judicial Review of Administrative Action, BLOG.IPLEADERS, July 3, 2020
https://blog.ipleaders.in/judicial-review-administrative-action-2/
A situation where the authority exceeded the initial jurisdiction which it had over a matter
thus making its actions illegal. It happens when –

 Despite the occurrence of an event ousting the jurisdiction the administrative body
continues to exercise jurisdiction.
 When matters outside its jurisdiction are entertained.

Abuse of Power

Arises in the following situations:

 When an authority uses its power for an improper or different purpose

 When the error can be ascertained by examining the record without having to recourse
to other evidence.
 Where an administrative authority has acted dishonestly or taken the decision with
some other motive in mind but states to have acted for a particular motive.
 When an authority adopts a policy without actually exercising its discretion in the
exercise of its powers i.e. restraining discretion.
 When a decision-maker does not consider the relevant matter.

IRRATIONALITY (WEDNESBURY TEST)

It is a generally established principle that the discretionary power conferred on an

administrative authority should be exercised reasonably. An administrative authority’s
decision can be held unreasonable if it is outrageous in its defiance of logic or prevalent
moral standards that a reasonable person who had applied his mind to the subject could not
have arrived at it.

PROCEDURAL IMPROPRIETY

It covers two areas which are failure:

 to observe rules given in statute

 to observe the basic common-law rule of justice.
An exclusive case where procedural fairness shows its insistence on the judicial review
irrespective of the type of body determining the matter is Ridge v Baldwin 8case.

In this case Ridge, the Chief Constable of Brighton was suspended on the charges of
conspiracy to obstruct the course of justice. Despite the settlement of the charges against
Ridge, the judge made comments critical of Ridge's conduct. Following this, the ridge was
rejected by force but was not invited to participate in the meeting which decided his
dismissal. Subsequently, he had the opportunity to be heard before the commission, which
rejected his appeal. Ridge then appealed to the House of Lords saying the committee had
totally violated the rules of natural justice.

It is important because of the emphasis given on the link existing between the right of a
person to be heard and the right to know the case brought against him.

PROPORTIONALITY

Proportionality means that the administrative action in question must not be more forceful
than it should be. The principle of proportionality implies that the judge must necessarily
enter into the advantages and disadvantages of the contested action. Unless the so-called
administrative act is advantageous and in the public interest, this act cannot be accepted. This
doctrine tries to balance means with ends.

Indian courts adhered to this doctrine for a long time, but English courts started using it after
the passage of the Human Rights Act 1998. The exercise of discretionary powers in which
there is no reasonable relation between the objective to be achieved and the means of
achieving it is quashed by the courts in the test of proportionality. Therefore if the
administrative action is disproportionate to the mischief, it will be quashed.

In Hind Construction Co. v. Workmen 9(1965), some workers called for a holiday and
remained absent. They were later dismissed from service. The court held that the workers
should have been warned and fined instead of abruptly being dismissed in a permanent
manner. It was out of the question to think that a reasonable employer would have imposed
8
[1964] AC 40
9
1965 AIR 917, 1965 SCR (2) 85
such an extreme punishment. The court held that the punishment imposed on the workmen
was not only severe but also disproportionate.

LEGITIMATE EXPECTATIONS

This doctrine serves as a ground for judicial review to protect the interest when a public
authority revokes a representation made to a person. A valid expectation arises in the mind of
the complainant who has been led to understand expressly or impliedly that certain measures
will be followed in reaching a conclusion. A reasonable basis exists in this expectation. This
doctrine has evolved to relieve people who have been aggrieved because of the violation of
their legitimate expectations and thus have not been able to defend their claims on the basis
of law.

Legitimate expectations are determined by two considerations -

 Where an individual or group has been made or led to believe impliedly or expressly
that a particular procedure will apply.
 When an individual or group relies on a particular policy or directive that formerly
governed an area of executive action.

In Regina v. Liverpool Corporation ex parte Liverpool Taxi Fleet Operators

Association10(1972) “ the Corporation had given orders that the taxi drivers’ licenses would
not be revoked without their prior consultation. The corporation acted in breach of its
undertaking and the court ruled that the taxi drivers had a right to be consulted.”

The judicial review of all the past, as well as future legislation in India, has been provided in
Article 13 of the Constitution of India. This power to declare a law unconstitutional if it is
inconsistent with any of the provisions of PART 3 of the Constitution has been conferred on
the High Courts and the Supreme Court of India under Art. 226 and 32. Therefore they have
the power to review administrative actions through various writs in the nature of

 Habeas Corpus
 Mandamus

10
[1972] 2 QB 299, [1972] 2 All ER 589, [1972] 2 WLR 1262, 71 LGR 387, 136 JP 491
  Certiorari
 Prohibition
 Quo Warranto

HABEAS CORPUS

The writ of Habeas corpus is in the nature of an order directing the authority who has
detained a person, to produce the individual before the court in order to examine the legality
of the detention and to set him free in case of lack of legal justification for the detention. It is
a method by which an individual who has been deprived of his personal liberty can test the
validity of the act before a higher court.

MANDAMUS

The writ of mandamus is a judicial remedy in the form of a directive from the Supreme Court
or High Courts to any lower court, government, or any other public authority to carry out a
'public duty' delegated upon them either by statute or by common law or to refrain from
doing a specific act which that authority is bound to refrain from doing under the law. Public
duty must be present for the grant of the writ of mandamus

The key objective of this writ is to keep the public authorities within the purview of their
jurisdiction while executing their public duties.

CERTIORARI

Certiorari can be defined as a judicial order of the Supreme Court or by the High Courts to a
lower court or to any other authority that exercises judicial, quasi-judicial, or administrative
functions, to transmit to the court the records of proceedings pending before them for scrutiny
and to decide the legality and validity of the order issued by them. By this act, the court
quashes or declares invalid a decision taken by the authority concerned.

PROHIBITION

The writ of prohibition is a judicial order issued to a constitutional, statutory or non-statutory

body or person if it exceeds its jurisdiction or it tries to exercise a jurisdiction not vested upon
them. It is a general remedy for the control of judicial, quasi-judicial and administrative
decisions affecting the rights of persons.
QUO WARRANTO

It is a court directive against an individual who occupies a substantive public office without
any legal authority. The person is directed to show by what authority he holds the position or
office. This writ is meant to oust persons, who are not legally qualified, for substantive public
posts.

CONCLUSION

With the monumental increase in powers of the administrative authorities in modern times,
judicial review has become an important area of administrative law. The administration is
playing a crucial and significant role in designing and influencing the socio-economic order.
This increase in powers of the administration is resulting in maladministration and corruption
leading to the individual rights of citizens being forgotten and disregarded by the authorities.
K. C. WHEARE observed in his works11 “It is not eccentric to conclude that if there is more
administration, there will be more maladministration.” The main focus of the judicial review
is to protect the interest of its citizens against the unwarranted powers or illegal actions of the
administrative authorities.

11
Maladministration and its remedies’, 3 1973