22 ! EXCLUSION OF JUDICIAL REVIEW SYNOPSIS 7. Subjective Satisfaction 4. Introduction. 2. Constitutional Provisions excluding judicial. & Poliical Questions: review. 9. Policy matters. 40, Ouster clauses excluding judicial review: (a) Finality clauses. 5, Exclusion of Civil Suits: (b) Conclusive evidence. (a) Suits expressly barred. (c) As-enacted in the Act. b) Suits impliedly barred. i Limit. (2), Prosumpton aso Jursicton ‘7 Oe 6. Exclusion of the Jurisdiction of Tribunals. i 1. Introduction Judicial review means supremacy of law. But in a Country where there is a weitten Constitution, judicial review means supremacy of the Constitution. In a rule of law socioly the law has always recognised the power of judiciary to review legislative and executive iteis In each society, there exists conflict between power and justice. Whenever there is. power, there are excesses in the exercise of power. It is on this assumption that the tality of statutes, and decisions of the executive authorities and Administrative Tribunals have necessarily to be reviewed by the judiciary so as to ensure adequate protection in safeguarding the rights of citizens. When the legislature deprives the judiciary of the power of judicial review to any extent in any way the supremacy of law and the Constitution is bound to be in jeopardy. But under the impact of the philosophy of welfare State the legislative tendency is to give greater scope for administrative decisions and lesser scope for judicial review. Where there is exclusion of such decisions from judicial control, there is in public opinion fear of administrative despotism. a. Express Exclusion. 4. Implied Exclusion. (a) England in England, theré prevails Parliamentary supremacy under which Parliament can make any law. It can exclude judicial control altogether. But the judici it is ‘ote in’favour of judicial review than administrative finality. Gel polos ne euler _process is completed, in cases where statute gives the Court no jurisdiction to interv the Court can yet review the final determination of Administrative Tribunal In. ite supervisory jurisdiction on such matters as to whether the authority making th Stee was the authority specified in the statute; if the authority was duly honed io donee lecide the issue; if it addressed itself to the matters committed to it; if the rules of natural justi 5 justice in any way were violated by it in the absen was the result of fraud.’ Ponta ge hinncr® Bates of exclusion of inkers.? The Franks Committee on Administrative Tribun restriction and if its decision 1. de Smith, Judi W 2 Smit, Judial Review of Adminitrative Action, 2. Vide Macdermot, Protection from Power, 1987, p. 66 : Wade, Administrative Law, 1988, (393)ADMINISTRATIVE LAW 394 tion came to be iit indamus. Accordingly, the situation facta ae ce and Inquiries Act, 1958, which lays don righ Courts power to teaue the provogeliva woke ccrtiorari and mandamus shy beed by any sensory Repsone excluding such jrsdtion, Tho enactment thst = fares by any standing uncertainty a5 to how far the remedy of certiorarican be rca Plater) Provision. Even the writ of mandamus can no longer be barred by jislation. . . : legis! — can be indirect exclusion or limitation Of judicial review. In this respect, the of statutory exclusion are two fold : | ae fyAnanen of provisions positively clothe the administrative act or determination as ‘final’ or ‘conclusive’ so as to exclude challenge in the Court. (b) At times, negative provisions are designed barring particular rem Providing that the administrative decisions shall not be called in ‘in any legal proceeding’.> (b) America | - Jr tm atca, absolute exclusion of judicial review by statute is imy re clan © judicial review derived from ‘Due Process’ clause, tae seoton aSemetimes circumscribed by legislative preclusion Tre is Partial that the lI not be ledies oy Question ‘in any Court of discretion,‘ the power of judicial review is retained. It is notable point that while in some earlier Cases the Court held the conservative view that the Administrative Procedure Act did not create any new jurisdiction, it has adopted a liberal view in the later case of Shaughnessy v. Pedreiro® to override the final Provision of a peacetime deportation statute 4.8. Immigration Act, 1952 holding that the word ‘inal’ in the statute only meant finality within the administrative Process and did not Preclude judicial review. However, the Position is that a finality clause would not be so Gonstrued as to exclude judicial review of administrative decisions which are ultra vires the statute under which they purport to have been made.§ Moreover, in cases where judicial review is held precluded by legislation, questions regarding the constitutionalty of the statute” can never be barred, (c) India As regards legislative exclusion in India, the position is somewhat similar to that prevailing in America. This is so because, in both the countries, there exists a charter of Fundamental Rights guaranteed under the Constitution, and those rights cannot be whittled down by any theory of finality. All three organs of the State, viz., Legislature, Executive and Judiciary, derive their Powers from the written Constitution and they have to act within the limits of such power.® The Judiciary has been made the interpreter of the Constitution and has been assigned the delicate task to determine what is the power The power of judicial review is an inte, . gral part of our constitutional system and without it, th . . in lere will be no government of laws and the rule of law would become a teasing 3. Healey ¥,Minister-of Healh, (1854) 9 All e.R, 449 (453) ca, a States v, jush and Co,, (1 ‘31 17, 5. (1955) 349 US 48 (51), PEDTSGUS 8 ” 8. Estep y, U.S. (1948) 327 US 114, 7. Ludecke v: Watkins, (1948) 335 Us 160; Barow v, Collins, (1970) 397 US 159 (168). 8 in Minerva Mils Ltd. v. Union of India, AIR 1980 SC 1789 (1825)./e eo EXCLUSION OF JUDICIAL REVIEW a insion and a promise of unreality. If there is one feature of our Constitution which, more any other, is basic and fundamental to the maintenance of democracy and the rule of jw, it's the power of judicial review and it is unquestionably, part of the basic structure of fe Constitution. The judicial review is.conferred on the Judiciary by Articles 32 and 226 of the Constitution which render administrative finality impossible, 1° At the same time, itis interesting to note that as judicial review is part of the basic ginucture, it can never be taken away even by constitutional amendment.11 Accordingly, pathak, C.J." has observed : examining the validity of even an amendment to the Constitution, for now it has been repeatedly held that no constitutional amendment can be sustained which violates the basic structure of the Constitution.”13 Even though under the written Constitution, there is guarantee of Fundamental Rights and Constitutional Remedies under Articles 32, 226, 227 and 136, there has been legislative tendency to exclude judicial review at least in certain circumstances. Moreover, there are numerous modes of such exclusion. A few of them are being discussed here in detail. 2. Constitutional provisions excluding Judicial review There are numerous articles in the Constitution providing for exclusion of judicial review. A few of them are being cited as spottight. (a) Executive Power Under Article 53, the executive power of the Union is vested in the President. In Article 74 it is laid down that there shall be a Council of Ministers headed by the Prime Minister to aid and advise the President in exercise of his functions. At the same time it stipulates that the question whether any, and if so what advice was tendered by the Ministers to the Presidents shall not be inquired into any Court. According to Article 77 the Conduct of the business of the Government of India is done in the name of the President. Clause 2 of the Article 77 says that orders or instruments made in the name of the President shall not be called in question on the ground that it is not an order or instrument made or executed by the President. The President is, however, the constitutional head of the State while the real executive power is exercised by the Ministers. 14 (b) Legislative Power As provided under Article 105, the privilages and immunities of the members of Parliament are out of the purview of ordinary Courts. The same Principle applies in case of Members of State Legislatures in Article 194 (2). No officer exercising his duties under Article 122 (2) shall be Subject to the lurisdiction of any Court in respect of the exercise by him of those powers. However, i Kihota Holohon v. Zachilhu,"® the Supreme Court has held that the Speaker "the Chairman under Paragraph 6 (1) ofthe Tenth Schedule a Tribunal. He genet the Protietor disqualifying a member is a judicial power and is not immune from ieee loreover, in Kashinath G. Jalmi v. The Speaker,'® the Su review, — Preme Court held that the + See Kesavanand Bhart!v. State of Kerala, AIR 1 1875 SC 2260; Minerva Mis Li. Union of Indes ais 000 Goats Netu Gana y, Raj Ni 12. Union of india v, Raghubir Singh, AIR 1989 SC 1635 1788, TE Narain, AIR, ie Par legen pagent Sigh, AIR 1989 SC 1933, 1S. AIR 1908 Soil? &f Puniab, AIR 1955 SC 549 16. AIR 1993 SC 1873,396 ADMINISTRATIVE LAW Speaker's order of disqualification of some Ministers including Chiet Mi ground of defection cannot be reviewed by him setting aside tre eaten the disqualification passed by him. Order of 3. Express Exclusion Sometimes exclusion of judicial review may be made under a Statute m, administrative action final by expressly barring the jurisdiction of the Court For ait the Section 2 of the Foreigners Act, 1946 provides that the administrative actions taxes, the Act “shall not be called in question in any legal proceeding before any Similarly, Section 28 of the Administration of Evacuee Property Act, 1950 stipulates the orders made under the Act shall be final and shall not be called in question ne Court. Section 46 bars the jurisdiction of the Courts to inquire into whether any proper Evacuse Property or not or whether any person is an evacuees or legality of oy, is taken under the Act.17 ion The Displaced Persons (Compensation and Rehabilitation) Act, 1954 is similar pattern to the Administration of Evacuee Property Act in respect of the finality clause, Section 27 of the Act provides that every order made by an officer or authority under the Act shall be final and shall not be called in question in any Court." Court of law, 4. Implied Exclusion Sometimes, ouster of jurisdiction by statutory provision may not be expressly flated in the statute but it may be implied. Instances of implied legislative exclusion are found in the administration of the Dangerous Drug Act, 1930, the Poisons Act, 1919, the Inland Bounded Warehouses Act, 1896, the Essential Commodities Act, 195 and other Statutes where no provision for judicial review has been made. Inference of legislative exclusion may also be drawn if the power of the authority to take certain action comes into operation if the authority is ‘satisfied’, that the action is desirable or if it appears ‘necessary’, ‘expedient’ etc. to that authority that such action fhould be taken. However, except in the case of emergency situations, the Courts have held that the authority's own declaration as to the ‘satisfaction’, ‘necessity’ or ‘expediency’ is not conclusive.19 5. Exclusion of Civil Suits () Generat & Civil Court has jurisdiction to try al suits of a civil nature unless they are bared. Section 9 of the Code of Civil Procedure, 1908 says— “The Courts. +. Shall have jurisdiction to try all suits of a Civil nature of ‘which their cognizance is either expressly or impliedly barred”. (il) Conditions 'tis clear from the above provision, that when a Person's legal rights are affected by faracministrative order, he is entitied to bring a suit in the Civil Cour, if the conditions are fulfilled — (A) the suit must be of a Civil nature; and barred) tM? Cegnizance of such a suit should not have been expressly or impliedly arred. (@) Sults expressly barred os sf 4 we Ven 8 suit is barred by an enactment, in force, it is said to be expressly ae This is so because it is pen to a competent legislature ito bar jurisdiction of Civil 17. Ebrahim Aboobaker v. Cus 18. Rajendra 1pocbekerv. Custodian General, AIR. 1952 SC 916. 19. Earl Fitzwilam Wentworth Estate Co, v. Minister of Town and Country Planning, (1951) 2 KB 24.y 2 r EXCLUSIONS . aa jided thi Givil nature provide icular class of suits of @ OAV" e and ne ih respect t0 eG legislation confined to its charg apy Speci ial sett within the i stitution 2° Thus, the matters deal the s tion f ipunal, Elect te jons o ‘al Tl 1 nt statutes; @.9- DY Indus ibunel; Motor Accident rel s ive Tribunal, Incom : oy fed Tara the cognizance of a Civil COU. ° impliedly barred. ay ody it law, it is said to be impliedly 0) Sen as neral principles of law, ce pee } ee ibe tra: v. KS. Wadke*! the Suprome oPontained ° Tus ton the Industrial Disputes Act ee i a eg te dome i inistrative law and are outsi i uestons to the domain of public administrative 6. ido the eae Src Cours, A Gil Court has no jurisdiction to adjudicate upon disp' uf vical nature. 4 as to jurisdiction a S Sens of ae is that in dealing with the question whether a CN ea is barred or not, it is necessary that every ieartig ne Should be made in favour of the jurisdiction of a Civil Court. A Ee en against the jurisdiction of the Civil Court is strictly construed, ? and there is a presu Hoa ction ister of the jurisdiction of the Civil Courts by statute.?° The exclusion © hatecicrn the Civil Courts is not to be readily inferred and the burden of proof is clearly on pat of those who maintain exception to the general rule.?° 'A Court has jurisdiction to examine whether the provisions of the Act and Rules made thereunder have not been complied with, or the order is contrary to law, mala fide, ura vires, perverse, arbitrary, purported, violative of the principles of natural justice, or is based on no evidence and so on. In all these cases, the order cannot be said to be under the Act but is de hors the Act and the jurisdiction of a Civil Court is not ousted.*6 In Radha Kishan. Ludhiana Municipality,27 Subba Rao, J. rightly observed : “A suit in a Civil Court will always lie to question the order of a Tribunal created by statute, even if its order is, expressly or by necessary implication, made final, if the said tribunal abuses its power or does not act under the Act but in violation of its provisions.”28 (c) Pre The general rule vis juisdiction to entertain a suit i 6. Exclusion of the Jurisdiction of Tribunals (@) General ‘Administrative Tribunals possess autonomous stat a es tus ir judici: iudcial decisions cannot be challenged and set aside by cout oy ann gare Otherwise makes such decisions or orders final even i they are si he Se enue bus itn Ujam Bai v. State of U.P.,28 where a quasi-judicial a thority hee ae ees 2 Tes matter. it does not lose its jurisdiction by coming to a wrong Lona luiscction to 9 in law or in fact. The question whether a Tribunal fon’ oo usion, whether determinabl rit , le at the commencement and not at the conchaien e lurisdiction or not ig e et nquity. No Writ of a an at ne wal Singh, AIR 1960 SC 796. .. Ral Chand v. Union of Ir & India, AIR 1964 Recreate Sear ani 1 (785) 28. Secretary mito (Sate v- Mask & Co, AIR isan Poo 108; Anise * Anisminic Lt, Lv Fi (1270), 719), Ce a. aaron, (1969) 1 ANIE.R, 208, 28. See also Gu rex Singh Coyene Toa ¥. Financia) ‘orsign 28. AiR 1082 86 9654 1990 8 255, . Compensation Comme, AiR . 1 981 Se agg, tena Nath y, . Empon a certiorari can be issued on the ground that the decision is wrong, inasmt to decide necessarily carries with it the power to decide rightly ae wol xe (b) Election Law “ ‘As provided under Article 329 of the Constitution, no i of any law, relating to delimitation of Constituencies aaa Constituencies. No elections to the legislatures can be questioned decapi Ean Patition.* In this way the constitutional Veto prohibits fling of euls aueeen ee election but provides machinery through Election Tribunals for quick fog tong ay decisions. Section 80 of the Representation of the People Act, 1951 lays dee roetus election can be called in question except through an Election Pelion ard seqnt nat "® of the Act makes the orders of High Court final and conel ce usive. (c) Taxation matters A number of taxation laws profiibit suits for recover authority of the statute. But such prohibition cannot prevent a Civil Court from inverfering when the administrative action is in excess of the statutory powers, e.g. where assessment is over property outside Municipal limits, where person exempted is taxed, etc. : UCH as the wrongly. 20 PONE" on the validity ry of money collected under the An other instance of an express exclusionary provision is to be found in section 67 of the Income-tax Act, 1922 (Section 293 of the Act of 1961) which says— “No suit shall be brought in any Civil Court to set aside or modify any assessment made under this Act.” High Courts have no jurisdiction under Article 226 to go into reasonableness of rates. The reason is that these rates are decided as policy matter in fiscal planning. Rates are a matter of legislative judgment and not for judicial determination.22 (d) Decision of Domestic: Tribunals Domestic Tribunals are given autonomous status within their jurisdiction. Decisions of Domestic Tribunals are not to be challenged in Courts of law, if such orders are made final by the relevant statute or the rule made thereunder, Professional bodies like the University, Bar Council, Special Boards of the Medical Faculty, etc. have necessarily to have autonomous powers for efficient functioning in respective spheres. Thus, medical qualifications are to be recognised in accordance with the provisions of Medical Council Act, 1956. The Governing Body under the Bengal Medical Act has been authorised to issue a certificate to an applicant to practise the Wester system of medicine if on enquiry he satisfies all the conditions stipulated under the Act. Rule 5 (4) made under the statute gives finality to all decisions of the Governing Council. Courts can interfere : (1) When such domestic authorities have acted under bias or in bad faith or mala fide; (2) When such authorities have violated the principles of natural justice in the Proceedings before it; or (8) When such authorities have exceeded their jurisdiction under the statute.°? {e) Labour disputes A large number of Tribunals have been established to adjudicate upon labour disputes. Decisions of such Labour Tribunals are excluded from Court review. Thus, an important instance of statutory finality is found in section 17 (2) of the Payment of Wages Act which makes the decisions of the Payment of Wages Authority final in appeal. There is 30. Ebrahim Aboobakery, Custodian General, AIR 1952 SC 319 (322). 31. Durga Shanker Mehta v. Raghuraj Singh, AIR 1954 SC 520, 32, Narayan Iyer v. Union of india, AIR 1976 SC 1986. 33. State Medical Faculty-of W.B. v. Kshiti Bhusan Dut, (1960) 64 CWN 842 (848). 0 6 oo" gee sud cot indi righ ore adj‘the ing ere xed, 1 67 nent S of ates ons ade the / to cal ncil to ry ste ala ur an 0 9 EXCLUSION OF JUDICIAL REVIEW e another instance which is found in section 30 of the Workmen's Compensation Act auch gives only a regulated right of appeal in some cases from the decisions of Compensal Commissioners to the High Cour. ____ The Civil Court has no jurisdiction to entertain a suit filed by declaration that the agreement between the Management and the such a matter pertains to Industrial Dispute which comes under the j Court under the Industrial Disputes Act, 1947. . The general principles relating to the jurisdiction of the Civil Court regarding industrial Disputes have been laid down by the Supreme Court in the leading case of Premier Automobiles Ltd. v. K.S. Wadke* as follows : (1) If the dispute is not Industrial Dispute, nor does it relate to enforcement right under the Act, the remedy lies only in the Civil Cour. (2) If the Industrial Dispute relates to the enforcer created under the Act, then the only remedy availat adjudication under the Act. {) Disputes between landlord and tenant. : ‘The landiord-tenant relationship is governed by special statutes which make provisions conferring powers on the Rent Controller to fix fair rent, compel legitimate repairs or order eviction etc. The ordinary Civil Courts do not come into the picture at all. ‘Appeals are provided to a hierarchy of officals. However, the Writ remedy is available where statutory provision is contravened. Thus, under section 9 of the Delhi Rent Control Act, 1958 the Controller is empowered to fix standard rent. Section 44 authorises him to decide on necessary’ repairs. At the same time section 14 protects a tenant against eviction. Section 50 (1) Clearly bars the jurisdiction of Civil Cours to entertain any dispute relating to rent. Almost all the States have passed such Rent Control Acts. 7. Subjective Satisfaction This is another mode of exclusion of judicial review. There are a number of statutes conferring powers of ‘satisfaction’ to the|administrative authority as found in Preventive Detention Laws, e.g. the Preventive Detention Act, 1950; the Maintenance of Internal Security Act, 1971; the National Security Act, 1980; Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974; Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 etc. Under section 3 of the former Act itis provided that if the Central or State Government is satisfied with respect to any person that he is acting in any manner prejudicial to the defence of India, forei relations or security of the State, maintenance of public order or the maintenance vy essential supplies and services etc., it can pass an order of detention. The eubjecic satisfaction of the detaining authority is required to be confirmed by an Advisory Bot” constituted under section 10. Under section 13 such detention can bo road 3S Supetior Authority. Judicial review is not envisaged. For a Writ of habeas com Kee DY ‘Atticle 32 or 226 can be made if any of the following rights is violated: PUS? Tesort to (1) Right to be informed of grounds of detention as soon as may be: (2) Opportunity to make, representatior y be; (3) Right to hearing before the Advisory Board; (4) Right to be informed of the order of confirmation ‘ (6) Vagueness of grounds; OF release; (6) Order is mala fide; certain workman for Union is invalid. For, jurisdiction of a Labour of any ment of a right or an obligation ble to the suitor is to get an 34. AIR 1975 SC 2238.400 ADMINISTRATIVE LAW (7) Subjective satisfaction is arbitrary or irrational, etc,35 tis suggested that the subjective satisfaction theory may be invoked in highest importance and in National emergenci Cases of ies. In normal ca: hamper judicial review. 825 this theory should not 8. Political Questions Itis true the Supreme Court under Article 32 and the High Courts under Article 226 enjoy very wide powers. In spite of this fact, there are certain fields wherein iUdicial revigy, is excluded. Thus, Courts will not interfere and Will refuse to exercise their extraordinary jurisdiction in the matters involving purely political questions, \n Bhut Nath v. State of W.B.38, Again, in the context of Article 356, in State of action of dissolving certain Legislative Assemblies Proclamation of emer ‘gency subject to judicial revie Bhagwati, J. observed : “If a question brought before the Court is Purely a political question not involving determination of any legal or Constitutional Right or obligation, the Court would ner entertain it, since th only with the adjudication of legal rights and Rajasthan v. Union of India the was challenged. Refusing to hold the w, the Supreme Court took similar view, i 'e Court is concerned liabilities,38 If the question is not purely political and involves legal and constitutional issues, the Court has to decide it in accordance with law.39 Constitutional law cannot be “entirely divorced from considerations of political polici So long as a question arises whether an authority under the Constitution has acted within the limits ofits power or exceeded it, It can certainly be decided by the Court. indeed it would be constitutional duty to do so. I an order or action is unconstitutional, ura vires, illegal or mala fide, the Court must interfere and strike it down.*' The Court cannot and should not shirk this responsibilty, because ithas swom the oath of allegiance to Constitution and is also accountable to the People of this Country.42 ip As to the validity or otherwise of a proclamation of emergency, Bhagwati J. in Minerva Mills v. Union of India stated, “A Proclamation of Emergency, is undoubtedly €menable to judicial review though on the limited ‘Tound that no satisfaction as required by Article 852 was arrived at by the President in ‘aw or that satisfaction was absurd or Eniverse or mala fide or based on an extraneous or irrelevant ground.* Accordingly in Patva Case, the Madhya Pradesh High Court ‘quashed the proclamation of emergency 2s itwas mala fide.44 |n such a context the Supreme Court could Not lag behind. Ultimately in S. R. Bommai v. Union of indie the ‘Supreme Court held that the proclamation of emergency 35. Khudhiram v. State of W ‘Mohd. Yousut v. State of J 36. AIR 1974 Sc 806, . AIR 1977 SC 1961, ‘wid, S8. Pet Bog, C., State of Ralestnanv. Union of India bid, Para 85. 40. Ibid, Per Chandrachud, J para 125, tid, Per Untwalia, J, Para 179, SS. (yee Mls Union of in, Per Bhagwat, AIR 1980 SC 1768, (1838). 43. Ibid 44. Unreported (the case el 1999, 0 ited to the Proclamation of Emergency when on 6th December Gisputed structure in Ayodhya was demotshed 45. ALR. 1994 SC 1918, 0, se JS75 SC 550; Ram Manohar Lohiav. State of Bihar, AIR 1968 SC 7: , AIR 1979 SC. 1926 : (1980) 1 SCR 258, made if jusict ons: une In exercise ennett court of the news policy ™é In licatic oPeiieng policy is and sumi persons assessm the Cour In J India, the superann challenge petitions | Ins levy sugz Sugar Cc Upholdin, the petiti Hoy Policy, it situated,5 Governm, Adopted f the ConstEXCLUSION OF JUDICIAL REVIEW 401 of constitutional machinery is subject to made under Article 356 on the ground of failure de in certain states was declared to be judicial review. Accordingly such proclamation ma unconstitutional. 9. Policy Matters In addition to political questions, the Supreme. Court or the High Courts will not exercise their extraordinary jurisdiction in the matters of Government policy. Thus, in Sennett Coleman & Co. v. Union of Inaia,4® the question which arose before the Supreme Court of India was regarding the constitutional validity and legality of the import policy for the news print adopted by the Government, The Court refused to adjudicate upon the policy matters unless it is arbitrary, capricious or mala fide.47 In State of Maharastra v. Lok Shikshan Sansthan*® the petitioners made applications for opening schools which were rejected by the authorities. The petitioners ePeilenged the said action by Writ petitions. The Supreme Court held that the question of policy is essentially for the State and such policy will depend upon an overall assessment Pid summary of the requirements of residents of particular locality and other categories of persons for whom it is essential to provide facilities for ‘education. If the overall eesessment is arrived at after a proper classification on a reasonable basis, it is not for the Courts to interfere with the policy leading up to such assessment. In Nagraj v. State of A.P.,49 under the proviso of Article 309 of the Constitution of India, the Government of Andhra Pradesh issued a notification reducing the age of superannuatiran of all government servants from 58 to 55 years. The said action was challenged in the Supreme Court under Article 32 of the Constitution. Dismissing the petitions filed under Article 32, the Court held the affair to be a policy matter. in Shri Sitaram Sugar Mis, v. Union of India,®° the Government fixed the prices of levy sugar by grouping Sugar Factories on the basis of geographical location. Certain Sugar Companies challenged the said action as arbitrary, unreasonable and ultra vires. Upholding the policy decision of the Central Government, the Supreme Court dismissed the petitions. However, the requirement is that when the Government lays down a particular policy, it must be followed and applied uniformly to all the persons who are similarly Fituated.5' There is no jurisdiction whatsoever to depart from the principle of policy. The Government must act fairly and rationally. It cannot at its sweet will depart from a policy adopted by it without rational justification. That would be clearly violative of Article 14 of the Constitution. 10. Ouster clauses excluding judicial review There is difference of opinion on the question of statutory ouster clauses. Such clauses do not play much significant role in India for much of judicial review takes place’ under constitutional provisions, e.g. Articles 32, 226 and 136. which cannot be controlled by statutory provisions. An ouster clause can only control judicial review through statutory provisions. Thus, availability of statutory remedies as declarations, injunctions or suits against administration are affected by ouster clauses. On the whole, the Court have played a creative tole in the matier of dalineating the scope ol ouster clauses. Thay io not take ouster clause at its face value but seek to restrict the scope of such a cae 48. ‘AIR 1973°SC 106. 47. Ibid, Per Ray, J., at p. 117. 48. AIR 1979 S¢'588, ‘AIR 1985 SC 551; Asif Hamid v. State of J. and K, Sh A tosses, and K., AIR 1989 SC 1899, . State of Mysore v. Srinivas Murthy, AIR 1976 St 52. Ibid, at pp. 1108-09. 108ADMINISTRATIVE LAW i ie urts have not conceded that any ouster clause can Se il Gusukes me ‘administrative action final, Judicial view has been that Sr ciaee ie phraseology ‘of an ouster clause, there is always residue of jurisdiction left in the Courts to review administrative action. ; ; The subject of ouster clause is extremely complex with intricate ramifications because Courts very often shift their positions. Genbrally a clause is inserted in the ‘h administrative action is excluded from judicial review. Such a clause may \s names, e.g. finality clause, privative clause, exclusion clause, ouster 402 statute by whict be given variou clause, conclusive clause. clauses ® “Sometimes, provisions are made in a statute by which administrative actions taken by the authorities are made final. This is known as ‘statutory finality’. No specific generalisation can be made as to the manner in which administrative actions are given finality. However, finality may be of two types : {i) Sometime an administrative action taken by the authorities is expressly made final and jurisdiction of Civil Courts is also ousted; or (i) Sometimes no-provision is made for appeal, revision or reference to any higher authority against the decision of Administrative Tribunals or Authorities. With respect to the first type of finality, provisions are made in certain statutes by which decisions of administrative authorities are expressly made final and jurisdiction of Civil Courts is also ousted. For instance, section 170 of Representation of the People Act, 1951 lays down : “No Civil Court shall have jurisdiction to question the legality of any action taken or any decision given by the Returning Officer or any other person appointed under the Act in connection with an election.” In these cases, the correct legal position is that even if the jurisdiction of Civil Courts is ousted, they have jurisdiction to examine the cases where provisions of the Act and the rules framed thereunder have not been observed and the order made by the authority is de Hors the Act or purported order® or the statutory authority has not acted in accordance with the fundamental principles of natural justice® or the decision is based on no evidence.55 The reason is that the order cannot be said to be “under the Act®® and as. such the jurisdiction of Civil Courts is not ousted. : In Radha Kishan v. Ludhiana Municipality’ the Supreme Court observed : “A suit in Civil Court will always lie to question the order of a Tribunal created by Statute, even if its order is, expressly or by necessary implication, made final, if the said tribunal abuses its power or does not act under the Act but in violation of its provisions”. ‘The Supreme Court has sought to exercise its jurisdiction setting aside an order— (i) When the order of the Tribunal was without or in excess of jurisdiction;5° or (ii) When the Tribunal did not direct its mind to the real question in dispute®®; (ii) Where it oustensibly failed to exercise’a patent jurisdiction:®° or (iv) Itdid not perform its duty under the law, 6! or — ee Sortveane esac 53. Union of india v. Tarachand Gupta, AIR 1971 SC 1956, 54, saat iS V. State of AP, AIR-1971 SC 71; Chandra ‘Shekhar v. Bar Council, Rajasthan, AIR 1983 SC 5. Kaushaya Dou v. Bachar Singh, AIR 1960 SC ‘96. Dhula Bhal v. Stale of MP. 1 mies aeteas ake Tn, ee ee Bandhu Sav. Jaaumon! Man 58. Rohtas inusis v Briandan, MPAGGs Se 14 SS 41 60. Raj Krishna v. Binod, AIR 1954'SC 202. 61. Vashi. Dov Granda, Kia 108s eiraN of 1 Or EXCLUSION OF JUDICIAL REVIEW ooeeded : ‘on and P wy Where the Tribunal misdirected itself upon a material question am" wy PON a Speculative view of things,® or al justice ora vi) Where a Tribunal acted in violation of the principles of nature error O° (vii) Where there has been miscarriage of justice consequent © Substantial question of law.°* rise for any jon does not 2 ‘ight __,With respect to the secon the questi er the objection as no one has an inherent ooh to capeal ifthe statute does NOt SOP gal can 10 appeal on any person and makes the decision ofthe lower authority SPS" Tact, 1951 lie against that decision. Thus, under the Administration of Evacuee Props veal or revision the order of the Custodian of Evacuee Property is given finality and no oO Tome Tax Act, is allowed to any authority against the said decision. Similarly, under N76 17 action of fact 1961, the decision pronounced by the Income Tax Appellate Tribunal On © is made final and no appeal can lie against the said finding to any tO put justice Commenting on finaly clause, WadeF® remarks: “Finalty is @ 9904 is better”, (b) Conclusive Evidence ial probative “Another device excluding judicial contol is by way of extending SPeCiee oy an forces to certain administrative actions. Under this mode of exclusion. Pe Ger. ciusive n finality by making ee the administrative authority on particular issues are givef - evidence’ that the statutory provisions have been complied with, Thus, section 36 Indian Companies Act, 1956, makes a cerificate of incorporation given by the Peg he Act Joint Stock Companies to be conclusive evidence that all the requirements of tne have been complied with. In such a case, no adverse private interest is involved and the conclusiveness is but fair in the public interest. The other instance of conclusive evidence is found in the provisions ‘of the Land Acquisition Laws. Section 6 (3) of the Land Acquisition Act, 1894, ulates that the declaration of the State Government is conclusive evidence that the land is required for a public purpose.®6 The Supreme Court has held that unless it is shown that thee was Colourable exercise of power, the Court cannot go behind the declaration of public purpose under section 6 (3) of the Act.°7 (c) As if enacted in the Act in several statutes, the power of judicial review ic providing that rules, regulations made under the Act shall have of a2, e, excluded by ‘Aer. Interpretation of this clause is not free from difculty. Does the forme noe ene the rules assume the status of the statute and become immune from apne mean that though they, are ultra vires the Parent Act ? Are the rules, thus, ae judicial review even In Institute of Patent Agents v. Lockwood,®® the Hous. lallengeable, clause “as contained in this Act” to mean that the juried)” G0" interpreted However, the Lockwood doctrine was overruled in Monae of the Court is b a Interpreting the clause, the Court held that it can stills, inister of Health vy Ye arred, legislation conflicts with the Parent Act or whether pr crutinize whether the ¢, ‘afee.69 complied with. Thus, in England, there cannot be exoice eeu" 2! "eQuiremente woo" dinate titra vires actions of the administrative authorities, US” Of judicial Nien pve . wine —— 2. Dhakeswarl Coton Milsv.C..7, AIR 1955 80 154 Se State of UP. v. Mohd. Nooh, AIR 1958 Sc.eg° "+ 62: Dhakeswart Cotion Milsv. CLT, AIR 1858 So 85. Aamir Law, 720 (186) 84 85 Somavantv. State of Puriab, AIR 198 0 154 66. Sago Ram v. Siate of Haryana, AIR 1971 Sc yoke Bey fe, 1804 AC 347. 1033, ¥ Sats or 9, 1991 AC 494 a 7 Sc 821,404 ADMINISTRATIVE LAW (a) Prescribing Time-limit For ensuring finality of administrative within which the aggrieved party must approac! he fails to do so, the finality clause will operate. By this device, delay and needless expenditure is avoided. Where public interest requires a quick and final response, time- limit clause is a good measure for the purpose. Thus, under Land Acquisition Act, 1894, i an aggrieved party does not apply to the Collector ‘against the award within six weeks thereof under section 18 to make a reference to the Civil Court, the award is made final.7° ‘a number of enactments. The question which There are similar provisions found in ments arises is whether there is no judicial review after the stipulated time-limit. in Smith v. East Elloe Rural District Council, land was acquired by a local authority inter alia, on the ground of bad faith for housing purposes. The order was challenged, allowed by the House of Lords as it was brought after the However, the action was not prescribed time limit, ie., six weeks. But in the historic judgment of Anisminic Ltd. v. Foreign Compensation Commission,”" the House of Lords disagreed with the decision in Smith v. Elloe Rural Saarict Counci?? and ruled that such a clause could not oust the jurisdiction of the Court to declare a particular determination to be null and void. Lord Reid observed : “Undoubtedly such provision protect 1 do not think that it is necessary or even ‘as including everything which purports to be a det determination at all”. action, sometimes, a period is prescribed hha Court of law for redress of grievances. If ts every determination which is not a nullity But strue the word ‘determination’ reasonable to const ermination but which is in fact no 141. General Observation In the welfare State, the purview of administrative control has expanded. The result is that separation of the Executive and the Judiciary appears to be'a myth. The range of ‘administrative control appears to eclipse the ‘accepted doctrine of judicial review. Professor A.T. Markose”? says : “However, it was inevitable that in the flood of legislation that became necessary to way for the advent of the administrative State, the separation of powers theory every Chapter of new Corpus Juris—whether broke down to a great extent. As was shown, in Labour Law or in Tenancy Law or in social welfare legistation, or in establishing rationing intavorcing commodity control by other means—judicial powers and legislative powers were conferred in abundance on rs on the basis of cheapness oF quickness, drastic exclusion or sul | review often took place”. Exclusion of judicial review is greatly adverted by the constitutional provisions in Atticles 32, 226, 227 and 136. The need for safeguarding these remedies and the greater ived for canalising these remedies in suitable cases is always a matter of ultimate value. if those provisions are used for not only safeguarding the individual's right but also to give btiect to the purposes of particular statutes, the role of the judiciary in effective judicial control could be said to have been fulfilled to a great extent. Dr. A.T. Markose”* makes @ fervent plea: “The pathetic neglect of Administrative Law Reforms cost the Country very dearly. A satisfactory relationship between the judiciary and the administration of the land is eee 70. ‘ajar Lal. Union of india, AIR 71. (1969) 2 AC 147. _ 19s 6D 5s 72. (1956) AC 736. 78. Publle Law—Sor 7S. Puble Law Some Aspect, 197, p25. pave the administrative officer bstantial curtailment of ordinary judicialie ee aaa a lock as a result of judicial interference "8h oy rs but also creates occa! en d of the administral ji necessary because an administrative dea stops the forward movement of the administrative powe divided loyalty in the minds of citizens, some siding with the stan‘ and some with that of the judiciary””> is hig A solution has also been given by Dr. A.T. Markose, According to hint itis Ba reme that we have @ General Court of Administrative Appeals as a Division of 112 P' Court of India. Moreover, we must man the High Courts with a set administrators with expertise on Labour Law, Tax Law, Company Law, so on. These experts can have the same tenure as Judges 0! i adorn the Division Bench or the Full Bench which have Administrati revisions ete. Thus, for instance, a Division Bench hearing a labour matter wil é regular Judge and one expert in Labour Law, Such an arrangement will be condec ns deal effectively with administrative justice. It will be cheaper, quicker and more Lat e and working of the The Administrative expert Judge knowing the special procedur ng relevant administrative bodies or Tribunals will throw light on the intricate administrative problem that calls for solution. Such a cormposition of the High Court Bench wih inspire more confidence in the people and prevent parties from seeking further remé to the Supreme Court. edy by resort ooo