The functions of a State can be classified as – traditional ( securing citizens
from external and internal aggression), modern (providing physical services and
regulatory functions, management functions, public administration, etc).
For performing such functions, Montesquieu, in his De l' Espirit des loix
(1748)[1], provided for 3 sorts of powers- executive or administrative,
legislative , judicial exercised by the State .
That the Indian Constitution too, implicitly, provides for such Doctrine of
Separation of Powers as can be understood from Supreme Court decisions[2]
dealing with the issue, according to which, the Legislature enacts the law, the
Executive administers the law, the Judiciary interprets and declares the law.
The Donoughmore Committee Report (1932) [3] laid down the respective functions
of the administration and judiciary as – administration of public policies and
resolving disputes arising between parties and application of law, thereby
protecting administration and judiciary from encroaching into each other's
territory. However the practical impossibility of the distinction was also
accepted by the committee.
This separation has however helped identify for practical purposes , the
functions of executive or administrative body as the functions not performed by
the other organs of the State. Considering the reality that the administrative
action is the meeting point of 3 types of governmental function, 3 categories of
administrative action can be recognised:
- Quasi-legislative (functions of subordinate legislation, issuing
administrative instructions, etc )
- Quasi-judicial (administrative agencies adjudicating on interests of
private individuals eg. Disciplinary proceedings, forfeiture of pension gratuity, etc)
- Purely Administrative or rule application action (situation-specific
function, with no procedural obligation to collect evidence or consider
arguments eg.
Fact-finding action; requisition , acquisition , allotment ; issuing directions
not having force of law to subordinate officers, etc ).
All such functions directly or indirectly affect the rights and interests of
individual and the general public , which, in turn, necessitates the judicial
intervention into the same. There is scope for exercise of administrative
discretion in all three categories however the scope for judicial control or
regulation upon them is limited.
For instance, the judicial review of
legislative action is restricted- mandamus cannot be issued to compel
executive's quasi-legislative action, subordinate legislation cannot be
challenged for being passed without hearing affected parties, government
policies generally, cannot be judicially reviewed, court cannot enter into
merits of administrative decisions etc.
While the notion of unfettered administrative discretion was acceptable to
English Courts in pre-Constitution British India, as is evident from the
deliberate exclusion of the power of judicial review of administrative action by
delimiting the jurisdiction of the judicature by the governing Act -Government
of India 1935, the same was unacceptable in independent India.
From the assertion made by B.R Ambedkar, chairman of the Drafting Committee, in
the Constituent Assembly Debates[4], that the provisions for judicial review and
writ jurisdiction are the soul and heart of the Constitution and from the
insertion of the Articles 32,226,227 into the Constitution of India as
prerogative writs, it is clear that the drafters of the Constitution of India
consolidated their intention of keeping the discretionary authority of the
government, under control.
Such control, is exercised by the judiciary in the form of judicial review .
Tools And Techniques Of Judicial Review Of Administrative Discretion
Apart from the Writs, filing for Appeal (Article 136 of The Constitution of
India) , Reference , Injunction (Specific Relief Act ,1963), Declaration, suit
for Tortious action of administration (under Law of Tort) are some of the
statutory and constitutional tools used to bring individual complaint against
administrative action within the purview of judicial review :-
- Civil Remedies that can be granted to control administrative discretion by judiciary are injunction, declaratory reliefs, damages.
- Sections 36 to 42 of the Specific Relief Act, 1963 provide for
temporary, perpetual as well as mandatory injunctions. Judicial review of
judicial, quasi-judicial, discretionary or ministerial and even purely
administrative actions can also be done in the course of granting
injunctions.
- Under the Civil Procedure Code, 1908, suit for damages may be filed in a
civil court of first instance against administrative action.
- Supreme Court may allow a Special Leave Appeal under Article 136 against
decisions of administrative authority provided, two conditions are
fulfilled- proposed appeal is against judicial/quasi-judicial or purely
administrative order and determination must be made by a court or tribunal.
- Article 300 of the Constitution of India and different caselaws such as
Kasturilal v. State of U.P [5]; State of Rajasthan vs Vidyawati [6] etc.
makes State vicariously liable for acts done by its servants. Article 12
brings within the scope of the word "State", administrative authorities
other than the government. Article 131 provides for jurisdiction of Supreme
Court in cases of disputes arising between Indian states or state and the
Government of India or between states and said government.
However , since the commencement of the Constitution , Writs ( under Articles
32,226) have been the most used tool for redressal against administrative
actions; even though the practice has been to exhaust all alternative remedies
available before filing writ petitions.
Writs Are Of 5 Kinds:
- Writ of Habeas Corpus can be issued by court for calling upon the person who, by exerting administrative authority is detaining a person so that he can let the court know the grounds of such detention. In case the court finds it to be illegal detention, on grounds of mala fides or non-application of mind etc, it can direct the authority to set him free.
- Writ of Mandamus can be issued by superior court to any government, corporation or public authority to exercise jurisdiction that they may have declined wrongfully and enforce performance of their statutory duties and discretion lawfully. Its scope is however limited to enforcement of public duty.
- Writ of Quo-Warranto may be issued to exert judicial control on the executive actions regarding statutory appointments to public offices, whereby courts inquire about the authority of a person holding said office. If the possession of office is found to be wrongful, the court can direct to oust the usurper.
- Writ of Certiorari is issued by the court to require the lawful court-certification of records of administrative actions with the object to quash the action of the administrative authority if it has exercised its quasi-judicial power unlawfully or outside jurisdiction or, in violation of natural justice principles or fundamental rights, thereby causing grave injustice.
- Writ of Prohibition can lie only in respect of judicial and quasi-judicial proceedings and can be issued on same grounds as that of certiorari and except the ground of error of law apparent on the face of record. The court prohibits arbitrary administrative actions against individuals by way of this preventive remedy.
Grounds Upon Which The Said Tools Of Judicial Review Of Administrative Actions Are Used
- Ultra-vires: According to the doctrine of ultra-vires, if an authority acting under statutory powers, does acts forbidden or not permitted by the statutes, i.e., acts beyond the scope of authority given to it, the administrative decisions taken by that body in the course of exercise of public functions, will be struck down by the courts.
In Ajay Kumar Banerjee v. Union of India [7]; Dwarka Nath v. Municipal Corporation [8] etc. Cases, it was held that the doctrine of ultra vires applies where the administrative legislate on was found ultra-vires the enabling Act.
In Ram Prasad v. State[9], it has been stated that where the administrative rule conflicts with the enabling act provisions, the doctrine can be invoked.
- Abuse of discretionary powers: When an administrative body does not exercise its power of discretion for the purpose intended by the Legislature, it is said to be abusing its discretionary power. Abuse of power involves:
- Colourable exercise of power: When the administrative authority is exercised under the guise of an authorized purpose, actually effecting an improper purpose, it is judicially reviewable for colourable exercise of power.
- Irrelevant consideration: Administrative discretionary decisions, taken on considerations irrelevant to the purpose for which the statute conferred the power of discretion upon the administrative authority or decisions taken wholly upon extraneous circumstances, are bound to be quashed by the court.
- Improper purpose: If the administrative authority exercises discretionary power for a different, misconstrued or mistaken purpose than that intended by Legislature or for malafide purpose, then the actions taken by it may be quashed for exercising power for improper purposes.
- Errors of law: The court may review an administrative decision where there's been an error in law, obvious and apparent on the face of records.
- Jurisdictional error: The administrative authority cannot exceed or mis-assume the limits of its jurisdiction, if it does, judicial review of its actions or decisions can be made.
- Unauthorized delegation: The general rule is that discretionary power can be exercised only by authority to which it has been delegated.
- Proportionality: Lord Diplock suggested the doctrine of proportionality as a ground for judicial review.
In S.K Satibhushan Bariyar v. State of Maharashtra [15], it was observed that the courts while applying this doctrine, may quash administrative exercise of discretionary power resulting in disproportion between object achieved and means used.
- Legitimate expectation: This lays emphasis on fairness on public administration & right to fair hearing before a negative decision. It also imposes a duty on public authorities to act fairly by taking into consideration factors relevant to legitimate expectations. Expectations can be procedural and substantive.
In the landmark cases - M/S Sethi Auto Service Station & Anr. V. Delhi Development Authority & Ors. that was decided on 17 October, 2008;
National Buildings Construction v. S. Raghunathan & Ors., S. P. Singh & Anr. (1998), it was held that the government and its administrative departments are expected to honour their statement of policy and treat citizens with personal consideration devoid of abuse or discretion.
- Unreasonable exercise of discretionary power: Lords Diplock, Greene recognize unreasonableness of action as a strong ground for judicial review.
Supreme Court ruled in Khoday Distilleries Ltd. v. State of Karnataka[16] that the act of administrative authority can be struck down if its manifestly unreasonable and arbitrary.
In Suman Gupta v. State of Jammu and Kashmir AIR 1983 SC 1235, it was held that exercise of all administrative powers must be structured within a system of controls informed by both relevance and reason.
- Estoppels: The doctrine of estoppels is an equitable doctrine that provides that a party is estopped from going back on its promise or assurance after the other party to it has acted on it, except in exceptional circumstances.
The principle of equity was laid down in Central London Property Trust Ltd. v. High Trees House Ltd. (1947) 1 KB 130, which was adopted in subsequent Supreme Court cases
Union of India v. Anglo-Afghan Agencies (1968), Turner Morrison and Co. Ltd. v. Hungerford Investment Trust Ltd. (1972).
The court has held government bound by its promise which may include contractual, administrative or statutory obligation, as was seen in the case -
Moti Lal Padam Path Sugar Mills Co. Ltd v. State of U.P (1979).
- Procedural impropriety: Justice has two aspects- substantive, procedural, in the administrative law. Procedural justice deals with structure, accuracy, quality of the decision-making process.
Procedural fairness, derived from the natural justice principles is necessary in administrative actions and decisions, in the absence of which the action or decision becomes subject to judicial review.
Public authorities must give either notice of their administrative consideration or decisions or actions taken or to be taken against individuals or an opportunity to the individuals to show cause why such step should not be taken as was held in
Urban Housing Co. v. Oxford City Council.
In Siemens Engineering v. Union of India AIR 1976 SC 1785, it was held that the non-compliance of recording reasons in support of orders passed in exercise of quasi-judicial authority by administrative authority is a substantial ground for judicial review.
- Non-application of mind: When the administrative authority mechanically exercises discretion or does not comply with the statutory pre-condition for exercising discretionary power or acted under dictation of superiors or fettered its own discretion in any manner, the same can be considered a case of non-application of mind, a ground for judicial review:
- Acting under dictation: The exercise of
discretion excludes, by principle, any scope for dictation and the
necessity of the discretionary authority to act under dictation.
In Indian Construction Comp. Ltd v. Ajay (2003) 4 SCC
579,Supreme Court struck down the order passed by administrative
authority which had acted under dictation of superior authority as it
had amounted to its surrender of independence and discretionary power.
- Fettering of discretion: When an administrative
authority having discretion imposes fetters on its discretion by rigid
application of certain rules of policy without considering merits of
each case , it amounts to non-application of mind, gives rise to reason
for judicial review. Supreme Court observed in Somabhai v. State 1977 CrLJ 1523, that generalization on matters relying on
discretion in the attempt to discover formulae of universal application when
facts are bound to differ in each case frustrates the purpose of conferment of
discretion.
- Irrationality: The Supreme Court in a landmark case of Indian
Railway Construction Comp. Ltd v. Ajay (2003) 4 SCC 579 at 591 ,
explained that a decision can be considered irrational and subject to
judicial review if , it is so outrageous in its defiance to logic or
accepted moral standards, that no sensible person who had applied his
mind to the question in issue, could have arrived at the same
conclusion.
Any of these can be considered a ground by judiciary in exercising control on
administrative action. But there are certain limitations upon the scope of such
judicial review and the power of judicial review by the court
Limitation On The Judicial Power Of Review Of Administrative Discretion
The judicial self-restraint principle that limits the scope of judicial review
has obtained support from the likes of Benjamin Cardozo , Harlan F. Stone,
Khanna J. , V.R Krishna Iyer J, etc.
Policy decisions of the government and cases involving political question, are
two main areas that the judicial review kept out of. This implicit limitation
originated in USA in Marbury v.Madison (1803)[21] case where C.J Marshall opined
that some of the Secretary's actions for instance , advising the President on
policy matters are unreviewable by a Court of law. Subsequently the Indian cases
of R.K Garg v. Union of India(1981) 4 SCC 676; G.B Mahajan v. Jalgaon Municipal
Council ( 1991) 3 SCC 91; Balco Employee's Union v.Union of India (2002) 2 SCC
333 etc.
- followed suit.
Balco case holding that the wisdom and advisability of economic policies are
ordinarily not to undergo judicial review unless the policy is shown to be
contrary to any statutory provision of the Constitution has to some extent,
diluted the executive-elitism enabling the State actions to be outside the
purview of judicial scrutiny .
In the case: Centre for Public Interest Litigation and Others v.Union of India
(2011) 1 SCC 560 , the Supreme Court however , laid down boldly that if the
state-policy and its implementation goes against the public interest or violates
constitutional principles, it is the duty of the court to exercise its judicial
power of review to protect larger public interests.
That the State is not above the People , is implicit in the Preamble to the
Constitution of India . Therefore, the actions of the State , especially a
democratic State, cannot be beyond the reach of judicial review. Though this
notion has been affirmed by the previous precedents, as is evident from the
judicial widening of the grounds of judicial review ; the judicial
pronouncements of recent times[22] are seen to be noticeably departing from it.
Conclusion
Administrative discretion can be defined as such freedom exercised by the
administrative authority to decide upon a certain matter or issue pertaining to
executive functions . Administrative discretion is exercised in most
administrative actions . There arises the need for judicial review, to ensure
that such exercise is legal and can be regulated to prevent encroachment upon
their interests and rights , in general to better serve the public. To summarise
, Judicial review of Administrative action, therefore means the review by the
courts of administrative action to ensure their legality.
It is safe to conclude that there has been widening of the grounds of judicial
review of administrative discretion at the hands of the Judiciary over the
course of time and the recent stagnation comes as a surprise. The Executive or
the Government of India, has always been a very powerful administrative
authority . However with the passage of time the political repercussions and
considerations are seen to shrink the scope of judiciary ; alongside the
judiciary's unwarranted self- imposed restraints in certain cases.
But the very
philosophy behind the doctrine of separation of powers, ie. the checks and
balances between the three powers was to maximize the well-being of the People
of the country. The idea was never to give any primacy of one organ over the
other. The erosion of such an essential feature[23] of the basic structure of
the Constitution ie. judicial review, is thus happening gradually and subtly,
which is , in its turn threatening the current balance between the organs of the
State, pushing our democratic nation towards the brink of executive-oligarchy.
Table Of Cases:
- Golak Nath vs State of Punjab AIR 1967 SC 1693
- Bandhua Mukti Morcha v.Union of India AIR 1984 SC 802
- Ajay Kumar Banerjee v. Union of India AIR 1984 SC 1130; (2000) 5 SCC 45
- Dwarka Nath vs. Municipal Corporation, AIR 1971 SC 1844
- Ram Prasad vs State AIR 1952 All 843
- Supreme Court Employees Welfare Association v. Union of India AIR 1990 SC 334
- State of Mysore v P.K. Kulkarni AIR 1972 SC 2170
- Syed Yakoob v K.S. Radha Krishnan AIR 1964 SC 477
- S.K Satibhushan Bariyar v State of Maharashtra (2009) 6 SCC 498
- Ram Singh v State of Uttar Pradesh (2009) 1 SCC 755
- M/S Sethi Auto Service Station & Anr Services Station v DDA CIVIL APPEAL NO. 6143 OF 2008
- National Building Corp. v R. Raghunathan ( decided on 28 August 1998)
- Khoday Distilleries Ltd. v. State of Karnataka (1996) 10 SCC 304,
- In Suman Gupta v State of Jammu and Kashmir AIR 1983 SC 1235
- Central London Property Trust Ltd. v High Trees House Ltd. (1947) 1 KB 130
- Union of India v. Anglo-Afgan Agencies (1968) S.C.R (2) 366
- Turner Morrison and Co. Ltd. v Hungerford Investment Trust Ltd. 1972 AIR 1311.
- Moti Lal Padam Path Sugar Mills Co. Ltd v State of U.P (1979) 2 SCC 409.
- Urban Housing Co. V Oxford City Council (1940) CH 70.
- Siemens Engineering v Union of India AIR 1976 SC 1785
- Indian Construction Comp. Ltd v. Ajay (2003) 4 SCC 579
- Somabhai vs State 1977 CrLJ 1523
- Indian Railway Construction Comp. Ltd v. Ajay (2003) 4 SCC 579 at 591
- Marbury v Madison 5 U.S (1 Cranch) 137 (1803)
- RK Garg v Union of India (1981) 4 SCC 676
- G.B Mahajan v Jalgaon Municipal Council ( 1991) 3 SCC 9
- Balco Employee's Union v Union of India, .(2002) 2 SCC 333
- Centre for Public Interest Litigation and Others v Union of India (2011) 1 SCC 560
- State v. Safoora Zargar (2020)
- Manohar Lal Sharma v Narendra Damodardas Modi Writ Petition 298 OF 2018
- In Re: Problems And Miseries Of Migrant Labourers Suo moto Writ petition ( Civil) No.(s). 6/2020
Abbreviations:
AIR |
All India Reporter |
CH |
Chancery Davison |
Cri LJ |
Criminal Law Journal |
DDA |
Delhi Development Authority |
KB |
King's Bench Divison |
SC |
Supreme Court |
SCC |
Supreme Court Cases |
SCR |
Supreme Court Reports |
Bibliography
- Constitution of India (Updated)
Available at: http://legislative.gov.in/sites/default/files/COI-updated.pdf (Last visited on 10 July, 2020)
- Committee On Ministers' Powers Report
"1932 Report Of The Committee On British Parliament Ministers' Powers Cmd Paper No 4060"
Available at : https://archive.org/stream/1936ReportOfTheCommitteeOnBritishParliamentMinistersPowersCmdPaperNo4060/1936 Report of the Committee on British Parliament Ministers' Powers - Cmd paper no 4060_djvu.txt (last visited July 10, 2020).
- Constituent Assembly Debates on December 9, 1948
Available at : https://www.constitutionofindia.net/constitution_assembly_debates/volume/7/1948-12-09. (Last visited July 11,2020)
- Pdf Basic Features Of The Constitution - Supreme Court Cases
Available at :- http://www.supremecourtcases.com/index2.php?option=com_content&itemid (Last visited July 10, 2020)
- Montesquieu, Charles Louis De Secondat De & Anne M. Cohler , The Spirit Of The Laws ( Cambridge Univ. Press , Cambridge ,U.K , 2009)
- Sreemanshu Kumar Dash, "A case study on writ of mandamus in matters of public interest litigation with special reference to continuous mandamus"
Available at: https://shodhganga.inflibnet.ac.in/handle/10603/284820 (Last visited July 11,2020)
- Singh Ajay Kumar, "Judicial Control of Administrative Action in India through
the Writ of Certiorari". Available at: https://shodhganga.inflibnet.ac.in/handle/10603/228719
(Last visited July 11,2020)
- Sharma, Jai Narain, "Judicial Review of Administrative Actions through Writs:
Recent Trends", Available at: https://shodhganga.inflibnet.ac.in/handle/10603/132460
(Last Visited July 11,2020)
- The concept of State action under article 12 of the IndianConstitution ,
Available at : https://www.amu.ac.in/emp/studym/99999698.pdf (Last visited July
11,2020)
End-Notes:
- Montesquieu, Charles Louis De Secondat De & Anne M. Cohler , The Spirit Of The Laws ( Cambridge Univ. Press , Cambridge ,U.K , 2009)
- Golak Nath vs State of Punjab AIR 1967 SC 1693;
Bandhua Mukti Morcha v.Union of India AIR 1984 SC 802 etc.
- Committee On Ministers' Powers Report , "1932 Report Of The Committee On British Parliament Ministers' Powers Cmd Paper No 4060", Available at : https://archive.org/stream/1936ReportOfTheCommitteeOnBritishParliamentMinistersPowersCmdPaperNo4060/1936 Report of the Committee on British Parliament Ministers' Powers - Cmd paper no 4060_djvu.txt (last visited July 10, 2020).
- Constituent Assembly Debates on December 9, 1948 , Available at : https://www.constitutionofindia.net/constitution_assembly_debates/volume/7/1948-12-09.
- 1965 AIR 1039
- 1962 SCR Suppl. (2) 989
- AIR 1984 SC 1130; (2000) 5 SCC 452
- AIR 1971 SC 1844
- AIR 1952 All 843
- AIR 1990 SC 334
- AIR 1972 SC 2170
- AIR 1964 SC 477
- (2009) 6 SCC 498
- (2009) 1 SCC 755
- (2009) 6 SCC 498
- (1996) 10 SCC 304
- (1968) S.C.R (2) 366
- 1972 AIR 1311
- 2 SCC 409.
- (1940) CH 70.
- 5 U.S (1 Cranch) 137 (1803)
- Manohar Lal Sharma v. Narendra Damodardas Modi WRIT PETITION 298 OF 2018 ; State v. Safoora Zargar (2020), In Re: Problems And Miseries Of Migrant Labourers Suo moto Writ Petition ( Civil) No.(s). 6/2020 etc.
- Pdf Basic Features Of The Constitution - Supreme Court Cases, Available at: http://www.supremecourtcases.com/index2.php (last visited July 10, 2020)
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