Judicial Review Of Administrative Actions And Modes

    Judicial review was a concept that was applied even before the drafting of the Indian Constitution. Under the Government of Indian Act, 1935 the federal court was authorised to act as an arbitrator between the centre and state. It was bestowed with supreme powers to scrutinize if any violations of the constitutional provisions were observed. Thus, the concept has been a part of the custom and usages even before the making of the Indian constitution.

    What is Judicial Review?

    In a parliamentary democracy, every organ of the governance system is involved in the decision and policy making. Where all the organs have distinguished powers and functions, it is imperative to note that they all represent the need and want of people at the end of the day. Rule of law becomes the base for social equality in a democracy and the rule of law can be applied only by the judiciary. Judicial review has its origin from two theories; theory of limited government and the theory of two laws which are ordinary law and supreme law. There are certain powers given to courts out of which one of them is to declare certain legislative or executive decisions or action as void or invalid based on its constitutionality. The purpose of the concept is to ensure that, any Act of the ordinary law which contradicts the provisions of the constitution must be held void and an organ with power or authority to declare such Act void is necessary for the governance of a state.[1] By way of articles 32 and 226 of the Indian constitution, the Supreme Court and High Courts have been given the authority to decide the constitutional validity of the legislation enacted. They are not only vested with the power to analyse constitutional validity, but they are also empowered to strike down legislation which contravenes with the constitutional provisions.[2] Thus, the judiciary is the organ that instil the responsibility of accountability on all those who exercise public powers.

    Judicial review was a concept that was applied even before the drafting of the Indian Constitution. Under the Government of Indian Act, 1935 the federal court was authorised to act as an arbitrator between the centre and state. It was bestowed with supreme powers to scrutinize if any violations of the constitutional provisions were observed. Thus, the concept has been a part of the custom and usages even before the making of the Indian constitution.

    Even though Articles 32, 136, 226 and 227 provide the Supreme Court and High Courts with the power to pass orders and writs with respect to the constitutionality of any law passed by the legislature or executive, Article 13 of the Indian Constitution gives the judiciary the absolute power to strike down any ordinance, order, bye-law, rule, regulation, notification, customs or usages in the Indian territory[3]. In India, judicial review can be applied with respect to three things which are:

    • Legislative action;
    • Judicial decision; and
    • Administrative action.

    Judicial Review of Administrative Action

    While understanding how the judiciary can review the administrative action, it is important to understand that:

    1. The three organs – legislature, executive and judiciary are independent, separate and are vested with vast powers and functions.
    2. For the same reason, it is imperative that these three organs keep a check on each other and balance out the errors or transgression of power.

    Thus, it is the judiciary’s authority or power to review the acts of other organs and levels of the government and keep a check on those legislative and executive decisions which are unconstitutional. In numerous cases, the judiciary has upheld its power through articles 32 and 226 of the Indian Constitution to review and interpret the legislations made by the respective bodies. While dealing with administrative action it is pertinent to understand what constitutes an administration. Administrative bodies fall within the scope of governmental authority and they are not a court or a legislative body. They can be called as commission, board, authority, bureau, office, department, corporation, division, agency and people who govern offices and administration. The role of the administrative authority is closely related to those of the people and thus very significant in ensuring the social and economic order in a state. When they go beyond their powers or misuse their powers, it results in direct exploitation of the people and corruption. Thus, it is not wrong to say that “It is not eccentric to conclude that if there is more administration, there will be more maladministration.”[4] The scope of the judiciary and judicial review is very vast, thus what the court looks for is specific issues which can give a certain structure to the principles by which the functions of administration and its agencies can be regulated. The courts cannot enforce judicial review when it comes to the question of whether a policy was wise or could be evolved.[5] They can use the judicial review on a policy or action only if the same is irrational, arbitrary or contravenes the provisions of any statute in force or provisions of the constitution.

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    Grounds for Challenging an Administrative Action

    • Discretionary Action

    Article 14 of the Indian Constitution ensures equality and equal protection of law to every person in India. This article’s interpretation has been broadened over the years. The Supreme Court is of the view that when any action of the administration violates article 14, it falls under the scope of judicial review and is void.[6] The same view was reiterated in the year 2008 by the Supreme Court while stating that the power of any administration is not unfettered and it should be exercised in accordance to the rules laid down. In this case, the railway’s board stated that it has powers to quash tender without assigning any reasons for the same.[7]

    However, while analyzing whether there is an existence of discrimination and if such discrimination is excessive the test of proportionality has to be applied by the court.[8] In this test, they dwell on the nexus between the objective that the administration seeks to achieve and the action it has resulted in. And if such a nexus is reasonable or rational then it cannot be held void.

    • Purpose of Law

    It is very much pertinent to ensure that not only does the administrative action violate the provisions of the law but also to ensure that it is in accordance with the purpose that the particular legislation seeks to achieve.[9] For instance, a particular authority would have the power to acquire land and provide accommodation on the same to an officer. But, the intent behind the act could be to eject a certain person due to their conflict with the landlord. In such a case, the court can make such an administrative action void since the acquisition of land was not acquired for the purpose that the legislation purports. As per article 226 of the constitution the high court will always have jurisdiction when it is with respect to an administrative act that is being done outside its jurisdiction. This power stands the same, even in cases where the action is in accordance with the purpose of the statute.

    Quasi-Judicial Actions

    Under the Constitution of India, judicial review is available when the administrative action violates any right enumerated under Part III of the Constitution. This right is guaranteed for an act against the state. The judiciary does not fall under the definition of a state. Thus a significant distinction is created between administrative action and quasi-judicial action. Now what we know is that a quasi-judicial action does not fall within the scope of judicial review, since a violation of part III of the Constitution cannot be done by the judiciary or quasi-judicial bodies.

    However, this distinction has lost its significance since the decision in the Antulay case[10] where the Supreme Court held that through article 32 of the constitution a writ petition can be filed against the decision of another court when it violates the fundamental rights. By way of this decision it became easier to apply for judicial review of the quasi-judicial action of administrative bodies.

    Conclusion

    Judicial review is the only effective method or procedure to ensure accountability and legal competence of the public authorities. There has been a huge increase in the discretionary powers given to the administrative bodies. Thus, it demands a balance of checks on them by endowing the judiciary with the power to review their actions and decisions. Although the judicial review can apply to administrative decisions, the rule being applied to the quasi-judicial decisions is still disputed. Even the scope of judicial review is restricted to public policy decisions by the administration. The judicial review is the interposition of the judicial restraint on the legislative, executive and judicial actions of the government. It is a basic structure of the Constitution and any attempt to destroy it would be to damage the structure of the constitution itself.

    References

    [1] Basu, I Basu’s commentaries on Constitution of India.

    [2] Additional District Magistrate, Jabalpur v. S. S. Shukla Etc., (1976) AIR 1207.

    [3] The Constitution of India, art. 13(3)(a).

    [4] Wheare, Maladministration and its Remedies, 3 1973.

    [5] B.A.L.C.O Employees Union (regd.) v. Union of India, (2002) 35 SCL.182.

    [6] E.P Royappa v. State of Tamil Nadu, 1974 AIR SC 555.

    [7] Union of India v. Dinesh Engineering Corp., (2001) 8 SCC 491.

    [8] Om Kumar v. Union of India, (2001) 2 SCC 386.

    [9] Dhulabhai v. State of MP, (1968) 2 SCC 662.

    [10] AIR 1988 SC 1531.

    BY- Gayathri S | Sastra Deemed To Be University 

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