Module VI: Judicial Review of Administrative Action and New Emerging Trends in Administrative Law

Judicial Review
Nature of Judicial Review:
 The nature of judicial review conducted by the Supreme Court and the High Courts in India
reflects their constitutional role as guardians of the Constitution and protectors of fundamental
rights. Judicial review refers to the authority of courts to examine the legality, constitutionality, and
procedural regularity of legislative and executive actions.
 The power of judicial review is enshrined in the Constitution of India. Articles 32 and 226
empower the Supreme Court and the High Courts, respectively, to enforce fundamental rights
through writs. Additionally, Article 13 declares that any law inconsistent with or in derogation of
fundamental rights is void.
 Both the Supreme Court and the High Courts are entrusted with the responsibility of being the
ultimate interpreters of the Constitution. They ensure that legislative acts, executive actions, and
governmental policies conform to constitutional principles and do not infringe upon the rights
guaranteed by the Constitution.

Scope of Judicial Review:

Judicial review is not absolute, as some situations need to be met in order to demur against any
law in the Supreme Court or the high courts, i.e., a law can be questioned only if:
 The law violates the fundamental rights that are enshrined by the Constitution.
 The law infringes upon the provisions listed in the Constitution.
 The enacted law goes beyond the capacity or power of the official(s) in charge that enacted
it.

Features of Judicial Review:

1. Power of judicial review can be exercised by both the Supreme Court and high courts:
Under Article 226 a person can approach the high court for violation of any fundamental right
or for any legal right. Also, under Article 32 a person can move to the Supreme Court for any
violation of a fundamental right or for a question of law. But the final power to interpret the
constitution lies with the apex court i.e Supreme Court. The Supreme Court is the highest court
of the land and its decisions are binding all over the country.
2. Judicial Review of both state and central laws:
Laws made by centre and state both are the subject to the judicial review. All the laws, order,
bye-laws, ordinance and constitutional amendments and all other notifications are subject to
judicial review which are included in Article 13(3) of the constitution of India.

3. Judicial review is not automatically applied:

The concept of judicial review needs to be attracted and applied. The Supreme Court cannot
itself apply for judicial review. It can be used only when a question of law or rule is challenged
before the Hon’ble court.

4. Judicial review is not suo motu

The Supreme Court or the high court for that matter do not use their authority to conduct a
judicial review by a suo motu action. However, such power is utilised when there is a question
of law that comes before the courts or during the court proceedings when any such incident
occurs or such conditions arise as to where the law is in question.

Extent of Power of Judicial Review of the Supreme Court and the High Courts:
The extent of the power of judicial review of administrative actions by the Supreme Court and
the High Courts in India is significant, as it enables them to scrutinize the legality, fairness, and
reasonableness of administrative decisions, orders, and policies.
a) Constitutional Mandate: The power of judicial review of administrative actions is derived
from the Constitution of India, particularly Articles 32 and 226, which empower the
Supreme Court and the High Courts, respectively, to issue writs for the enforcement of
fundamental rights. These writs include habeas corpus, mandamus, prohibition, certiorari,
and quo warranto, which can be used to review administrative actions.

b) Protection of Fundamental Rights: One of the primary functions of judicial review of

administrative actions is to protect fundamental rights guaranteed by the Constitution. The
courts ensure that administrative actions do not infringe upon or violate the fundamental
rights of individuals, including the rights to equality, liberty, and life.

c) Review of Executive Actions: The judiciary reviews executive actions, including

administrative decisions, orders, and policies, to ensure they are lawful, reasonable, and not
arbitrary. This includes actions taken by government officials, regulatory bodies, and
administrative authorities at both the central and state levels.
d) Legality and Procedural Regularity: The courts examine the legality and procedural
regularity of administrative actions to ensure they comply with statutory provisions, rules,
regulations, and established procedures. Administrative actions that are ultra vires, illegal, or
unconstitutional may be struck down or quashed by the courts.

e) Reasonableness and Fairness: Judicial review of administrative actions involves assessing

their reasonableness and fairness. The courts ensure that administrative authorities exercise
their powers reasonably, fairly, and in accordance with principles of natural justice, equity,
and good governance.

f) Abuse of Power and Discretion: The judiciary scrutinizes administrative actions to prevent
the abuse of power and discretion by administrative authorities. Actions that are arbitrary,
discriminatory, mala fide, or manifestly unjust may be invalidated by the courts.

g) Substantive and Procedural Review: Judicial review of administrative actions encompasses

both substantive and procedural aspects. The courts evaluate the merits of administrative
decisions as well as the procedures followed in making those decisions, ensuring compliance
with principles of due process and procedural fairness.

h) Deference and Expertise: While the courts exercise judicial review, they often defer to the
expertise and discretion of administrative authorities in matters involving technical
expertise, policy formulation, and administrative discretion. However, deference is not
absolute, and the courts intervene when there is a clear violation of legal norms,
constitutional principles, or fundamental rights.

i) Remedial Measures: In cases where administrative actions are found to be unlawful,

arbitrary, or unconstitutional, the courts may grant various remedial measures, including
setting aside the impugned actions, issuing directions or guidelines to the administrative
authorities, or awarding compensation to aggrieved parties.

j) Public Interest Litigation (PIL): The Supreme Court and the High Courts have broadened
the scope of judicial review through Public Interest Litigation (PIL). PIL allows citizens or
organizations to bring matters of public importance before the courts, including issues
related to administrative law, governance, social justice, and environmental protection.

[For more information about Judicial Review- https://blog.ipleaders.in/all-about-judicial-review/ ]

 Difference between Judicial Review, Appeal and Revision
Key Difference between Judicial Review and Appeal:
Judicial review and appeal are both mechanisms through which individuals or entities can
challenge decisions made by lower authorities, such as administrative bodies or lower courts.
However, they differ significantly in terms of their scope, purpose, and the nature of the review
process.
1) Scope:
 Judicial review is concerned with examining the legality, validity, and procedural fairness of
administrative actions, decisions, or laws. It focuses on whether the decision-maker acted
within their lawful authority and whether their decision-making process was fair and
reasonable. Judicial review typically does not involve a rehearing of the case on its merits.
 An appeal, on the other hand, involves a review of the decision on its merits. It allows
parties to challenge the correctness of the decision itself, including issues of fact, law, and
interpretation. Appeals typically involve a higher court re-examining the evidence and
arguments presented in the lower court or tribunal to determine if errors were made.

2) Purpose:
 The primary purpose of judicial review is to ensure that administrative bodies and officials
act lawfully, reasonably, and in accordance with established legal principles and procedural
fairness. It is focused on upholding the rule of law and protecting individual rights and
liberties.
 The purpose of an appeal is to correct errors of law or fact made by lower courts or tribunals.
It provides parties with an opportunity to have a higher court reconsider the decision and
correct any legal or factual mistakes that may have occurred during the initial proceedings.

3) Standard of Review:
 In judicial review, the court applies a standard of review that is deferential to the decision-
maker. The court will typically intervene only if the decision-maker acted beyond their
jurisdiction, acted unreasonably, or breached principles of natural justice or procedural
fairness.
 In an appeal, the appellate court applies a standard of review that may vary depending on the
nature of the case and the issues raised. The appellate court may have broader powers of
review and may consider both questions of law and questions of fact.
4) Procedure:
 Judicial review proceedings are typically initiated by filing an application or petition directly
to the court challenging the administrative decision or action. The court reviews the decision
based on the written submissions and arguments presented by the parties.
 Appeals are initiated by filing a notice of appeal with the appropriate appellate court within
the prescribed time frame. The appellate court then reviews the decision based on the record
of proceedings from the lower court or tribunal, including transcripts, evidence, and legal
submissions.

5) Outcome:
 In judicial review, the court may quash or invalidate the administrative decision or action if
it is found to be unlawful, unreasonable, or procedurally unfair. However, the court does not
typically substitute its own decision for that of the decision-maker.

 In an appeal, the appellate court has the authority to affirm, reverse, or modify the decision
of the lower court or tribunal. The appellate court may also remit the case back to the lower
court for further consideration or a new hearing.

Key Difference between Judicial Review and Revision

1) Scope:
 Judicial review is primarily concerned with examining the legality, validity, and procedural
fairness of administrative actions, decisions, or laws. It focuses on whether the decision-
maker acted within their lawful authority and whether their decision-making process was fair
and reasonable. Judicial review typically does not involve a rehearing of the case on its
merits.
 Revision, on the other hand, involves a re-examination of the entire case, including both
questions of law and questions of fact. It allows a higher court to review the decision of a
lower court or tribunal to ensure that it is in accordance with the law and does not result in a
miscarriage of justice. Revision may involve a more comprehensive review compared to
judicial review.

2) Purpose:
 The primary purpose of judicial review is to uphold the rule of law, protect individual rights
and liberties, and ensure that administrative bodies and officials act lawfully and reasonably.
It is focused on reviewing the legality and fairness of administrative actions and decisions.
 The purpose of revision is to correct errors of law or fact made by lower courts or tribunals.
It provides a mechanism for a higher court to intervene if there are serious errors or
 irregularities in the decision-making process or if the decision results in a miscarriage of
justice.

3) Standard of Review:
 In judicial review, the court applies a standard of review that is deferential to the decision-
maker. The court will typically intervene only if the decision-maker acted beyond their
jurisdiction, acted unreasonably, or breached principles of natural justice or procedural
fairness.
 In revision, the higher court may apply a broader standard of review compared to judicial
review. The court may consider both questions of law and questions of fact and may have the
authority to re-examine the evidence and arguments presented in the lower court or tribunal.

4) Initiation:
 Judicial review proceedings are typically initiated by filing an application or petition directly
to the court challenging the administrative decision or action.
 Revision may be initiated by the court itself or by an aggrieved party filing an application or
petition seeking the court's intervention to review the decision of a lower court or tribunal.

5) Outcome:
 In judicial review, the court may quash or invalidate the administrative decision or action if
it is found to be unlawful, unreasonable, or procedurally unfair. However, the court does not
typically substitute its own decision for that of the decision-maker.
 In revision, the higher court has the authority to affirm, reverse, or modify the decision of the
lower court or tribunal. The court may also remit the case back to the lower court for further
consideration or a new hearing.

Difference between Art. 226 and Art. 227 of the Constitution

It is a general practice to file a writ petition before a High Court under Article 226 read with
227 as they might look similar in terms of practice. However, there are some major differences
that make the scope of both articles totally different. The Hon’ble Supreme Court through its
various judgements have condemned Advocates filing a petition under both Articles as they
have distinct scope and application.

Article 226:
Article 226 of the Constitution of India provides High Courts with the power to issue certain
writs to any person or authority, including Government in appropriate cases for enforcing our
fundamental rights provided under Part III of the Constitution, or for any other purpose. These
writs include the writs of habeas corpus, mandamus, prohibition, quo warranto, and certiorari.

These writs can be explained as follows:

Habeas Corpus- The literal translation of this Latin term is “you should have the; body”,
meaning that any person who has been arrested must be brought before a court to ascertain the
legality of such arrest or detention. This ensures the person’s release if the detention is made on
unlawful grounds.
Mandamus- Through this writ courts can order an inferior government official or a statutory
body to properly perform and fulfil their statutory duties.
Prohibition- This writ is issued to prohibit any inferior court or tribunal when they exceed their
jurisdiction and/or act in contravention to the rules of natural justice.
Quo Warranto- It literally translates to “by what warrant”. This writ requires a person to show
by what authority an office or franchise is being held or exercised. In other words, it is issued to
determine the legality of the claim of a person or a public office and restrains a person or an
authority controlling an office without having the right to do so.
Certiorari- It literally means “to be certified” and is issued by a High Court to quash or set aside
an order or a decree of inferior Courts.
Article 226 of the Constitution confers High Courts with the power to issue these writs for
enforcement and protection of fundamental rights as provided under Part III of the Constitution.
A person willing to get any of these writs issued can file a Writ Petition under Article 226
praying for issuance of appropriate writ.

Article 227:
Article 227 of the Constitution lays down that the High Courts have superintendence over all
Courts and Tribunals within the territory where such High Court exercises Jurisdiction, with
courts or tribunals formed under a law relating armed forces being an exception to it.It simply
means that High Courts is the top most Court of their respective states or union territories
within which it exercises Jurisdiction, apart from military courts.

Article 227 further provides that a High Court can:

 Call for returns from such courts;
 Make and issue general rules and prescribe forms for regulating the practice and
proceedings of such courts;
  Prescribe forms in which books, entries and accounts shall be kept by the officers of any
such courts;
 Settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts;
The proviso to this Article states that any rules made, forms prescribed, or tables settled as
mentioned above must be consistent to the law being in force at the time, and also requires an
approval of the Governor beforehand.
It can be understood from the mere reading of these articles that appropriate writs can be issued
under Article 226 and direction in furtherance of those writs can be passed under Article 227.
These articles are sometimes misunderstood to be interchangeable and have similar application,
however there are different scope and application to the powers conferred under these Articles.

Distinctions between Articles 226 & 227:

No proper distinction was laid down by law between Article 226 and Article 227, creating much
ambiguity and confusion in the minds of Advocates while filing writ petitions, the Apex court
aimed to settle the dispute once and for all and in the case of laid down the scope and
differences between these articles, which are as follows:

1. High Court exercises its ‘original jurisdiction’ when a petition is filed under Article 226,
whereas, petitions under Article 227 have supervisory jurisdiction.

2. While Article 226 has been formulated to protect fundamental rights by issuing appropriate
writs, Article 227 is intended to be used in appropriate cases for keeping the subordinate
courts and tribunals within the bounds of their authority and is not meant for mere correction
of errors.

3. Article 226 can be used whenever issuance of an appropriate writ is required, but, Article
227 is to be exercised only in cases of grave injustice or failure of justice such as:
- A court or tribunal exceeds their jurisdiction and passes such order which is ultra vires;
- A court or tribunal has failed to exercise the jurisdiction vested within them;
- A court or tribunal has exercised its available jurisdiction in such a manner which
tantamount to exceeding the limits of jurisdiction.

Writ Jurisdiction of Courts in India

 According to Articles 12-35 of the Indian Constitution, every citizen is given a number of
essential rights. Granting fundamental rights is necessary, but it is also necessary to protect
them. As a result, the Indian Constitution's Article 32 provides a remedy for the protection of
 fundamental rights by allowing the Supreme Court to issue writs when a citizen's basic
rights are violated and to the High Court under Article 226 of the Constitution.
 Writs were once known as prerogative writs because the crown used them to make decisions
in extreme circumstances. The judicial and administrative systems of today do not employ
this language. The prerogative writs are what are known as Writs in India.

 A writ is a directive or order issued by a higher court requiring someone to carry out or
refrain from carrying out a certain action. Any person may submit a writ petition when the
state violates one of their fundamental rights. According to common law, a writ is the formal
written order given by a body with administrative or judicial power. In India, a court, which
includes the Supreme Court and High Courts, is the entity that issues such writs.

 It upholds the impacted person's fundamental rights and legal rights. A person has the
fundamental right to raise the court's notice to any complaint or grievance they may have
over any administrative action. The safeguarding of natural justice and the protection of
fundamental rights are the two most important elements of writ jurisdictions.

Pronouncing the authority of Supreme Court in matters concerning writ jurisdiction, clause
(1) and (2) of Article 32 of the Caonstitution of India states:
1. The right to move the Supreme Court by appropriate proceedings for the enforcement of
the rights conferred by this Part is guaranteed.
2. The Supreme Court shall have power to issue directions or orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred by this
Part.
In the case of L.Chandra Kumar v. Union of India, 1997, the Hon'ble Supreme Court ruled that
the Supreme Court's authority to issue writs to Indian citizens in order to uphold their
fundamental rights is an aspect of the basic structure concept and that, as a result, this power
can never be amended or eliminated.

 The fundamental rights of citizens are guarded by the Supreme Court. It is regarded as the
"guarantor" and "defender" of India's people' fundamental rights. It has the authority to issue
the following five writs: prohibition, quo warranto, certiorari, quo warranto, and habeas
corpus.

 The only courts with the authority to exercise writ jurisdiction are the Supreme Court and
the High Courts. While article 32 grants it to the Supreme Court, article 226 grants it to the
high courts.
 Whereas Article 226(1) of the Constitution of India lays down the jurisdiction of writ with
respect to the High Courts in India.

Power of High Courts to issue certain writs:

o Notwithstanding anything in Article 32 every High Court shall have powers, throughout the
territories in relation to which it exercises jurisdiction, to issue to any person or authority,
including in appropriate cases, any Government, within those territories, directions, orders or
writs for the enforcement of any of the rights conferred by Part III and for any other purpose.

o The High Courts have additional powers in addition to issuing writs to uphold basic rights.
They have more authority in this situation than the Supreme Court. Additionally, unlike the
Supreme Court, which must issue writs when fundamental rights are violated, the High
Court has discretion when granting writs.

o Writs are orders given by courts to uphold people's basic rights (citizens or aliens). In this
regard, the Supreme Court has original jurisdiction in the sense that a person who feels
wronged can approach the Supreme Court directly, rather than always through an appeal.
The Supreme Court's writ jurisdiction is not, however, sole. The High Courts also have the
authority to issue writs to enact the Fundamental Rights.

The Constitution of India recognises five different sorts of writs:

1) Habeas Corpus:
Habeas Corpus is a Latin phrase that translates to "to produce the body." For instance, the court
may issue a writ of habeas corpus requiring the corpse to be presented within 24 hours if a
person is being imprisoned unlawfully in order to give them the chance to prove their
innocence. If he is found to be innocent, he ought to be let go. If not, he will be sent in prison.
2) Mandamus:
The Latin word for "command" is "mandamus." It cannot be given in the case of a private
individual or business. The higher courts issue writs of mandamus to monitor public servants
and determine whether they are adequately discharging their duties. If they don't, they are asked
to do their assignment or stop acting in a certain way.
3) Prohibition:
A legal term with the meaning "to prohibit, restrain, hinder, or forbid" is "prohibition." In order
to prevent the subordinate court from acting outside of its mandated jurisdiction or exceeding its
authority, the higher court issues a writ of prohibition against it. It cannot be applied to statutory
bodies, administrative agencies, or private individuals or businesses. Only judicial and quasi-
judicial organisations are subject to it.
4) Quo-Warranto:
Exact definition of Quo Warranto is "by what authority or warrant." Anyone other than the party
who was offended is given the right to seek redress under this writ. The ministerial office
cannot be the target of it. This writ is used to determine who has the legal authority to hold a
public office in the event of a disagreement.
5) Certiorari:
The Latin word certiorari, which meaning "certified," is used. The High Court or Supreme
Court will issue this writ against a lower court or tribunal in order to transfer the matter to
another superior body for careful consideration. In other words, it is a review of the lower
court's judgement or an appeal from that court.

 The Supreme Court has broad original jurisdiction under the Constitution to uphold
fundamental rights. These writs, including writs to execute them, may be issued by it. In the
case of the Supreme Court and lower courts, the High Courts have the authority to ordain the
transfer of any civil or criminal case from one State High Court to another State High Court
or from a Court Subordinate to another State High Court (in case of High Courts).

 The Supreme Court may withdraw a case or cases pending before the High Court or High
Courts and resolve all such cases itself if it is satisfied that cases involving the same or
substantially the same legal questions are pending before it and one or more High Courts or
before two or more High Courts and that these questions are significant questions of general
importance. In order to advance the cases before the lower courts, the High Courts also have
the same authority.

 Therefore, it may eventually be determined that the Indian Constitution not only offers its
inhabitants a variety of ways to freely enjoy their rights, but also a variety of ways to protect
those rights. Additionally, it can be deduced that the Indian Constitution has created the
nation's judicial framework and structure in such a delicate and exact way that it gives the
higher judiciary a significant amount of power and authority for the protection of
individuals' freedom and dignity, as well as for upholding the principles of democracy in
their purest form.
 New Emerging Trends in Administrative Law
Judicial Activism:
Judicial activism refers to the proactive role played by the judiciary in reviewing and shaping
administrative actions, policies, and laws. Increasingly, courts are taking a more assertive stance
in addressing issues of public interest, social justice, and good governance. Judicial activism
involves not only interpreting laws but also actively influencing policy formulation and
implementation, especially in areas where legislative or executive action is deemed inadequate
or unconstitutional.

Technology and Administrative Processes:

With advancements in technology, administrative agencies are increasingly utilizing digital
tools and platforms to streamline processes, enhance efficiency, and improve service delivery.
This includes the adoption of e-governance initiatives, digital record-keeping systems, online
application portals, and data analytics for decision-making. The integration of technology in
administrative processes has the potential to increase transparency, accessibility, and
accountability while also presenting challenges related to data privacy, cybersecurity, and digital
divide.

Environmental Governance and Sustainability:

There is a growing emphasis on environmental governance and sustainability within
administrative law. Administrative agencies are tasked with implementing and enforcing
regulations aimed at protecting the environment, conserving natural resources, and mitigating
climate change impacts. This trend includes the development of environmental impact
assessment frameworks, adoption of eco-friendly policies, promotion of renewable energy
initiatives, and enforcement of pollution control measures. Administrative law is evolving to
address complex environmental challenges while balancing economic development and
environmental conservation.

Decentralization and Local Governance:

Administrative law is witnessing a shift towards decentralization and increased emphasis on
local governance. Governments are devolving powers and responsibilities to local authorities,
community organizations, and grassroots institutions to enhance citizen participation, promote
subsidiarity, and address local needs effectively. This trend includes the delegation of
administrative functions to local bodies, establishment of local administrative tribunals, and
adoption of participatory decision-making processes. Decentralization aims to improve
governance responsiveness, accountability, and service delivery at the grassroots level.
Regulatory Impact Assessment:
Regulatory impact assessment (RIA) is gaining importance as a tool for evaluating the potential
impacts of regulations on various stakeholders, including businesses, consumers, and the
environment. Administrative agencies are increasingly conducting RIAs to assess the economic,
social, and environmental consequences of proposed regulations before implementation. RIAs
help policymakers make informed decisions, identify unintended consequences, and design
regulations that achieve desired outcomes while minimizing adverse effects. This trend reflects
a commitment to evidence-based policymaking and regulatory efficiency in administrative law.

Human Rights and Social Justice:

Administrative law is increasingly addressing human rights and social justice concerns in the
formulation and implementation of policies and programs. There is a growing recognition of the
role of administrative agencies in protecting and promoting human rights, including civil,
political, economic, social, and cultural rights. This trend involves integrating human rights
principles into administrative decision-making processes, ensuring access to justice, combating
discrimination and inequality, and addressing marginalized groups' needs. Administrative law is
evolving to uphold constitutional values of equality, dignity, and justice for all individuals.

Globalization and International Law:

Globalization has led to increased interconnectedness and interdependence among nations,
resulting in administrative law's growing engagement with international law and norms.
Administrative agencies are grappling with transnational issues such as trade, investment,
migration, and environmental protection, which require cooperation and coordination across
borders. This trend involves aligning domestic administrative practices with international
standards, treaties, and agreements, participating in global regulatory networks, and addressing
cross-border regulatory challenges. Administrative law is evolving to navigate the complexities
of globalization while ensuring national sovereignty and compliance with international
obligations.