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Various Concepts of Administrative Law and Judicial Review

Prologue
Administrative law deals with the legal control of the government and related administrative powers. On the other hand, judicial review is a process under which executive or legislative actions are subject to review by the judiciary.

Administrative Law
Administrative law is the law relating to the control of governmental power. The primary objective of administrative law is to limit the powers of the government to protect citizens against their abuse. In other words, we can define administrative law as the body of rules, regulations, orders, and decisions created by the administrative agencies of government.

According to Ivor Jennings, “Administrative law is the law relating to the administration. It determines the organization, powers, and duties of the administrative authorities.”
According to K.C Davis, “Administrative law is the law concerning the powers and procedures of administrative agencies, including especially the law governing judicial review of administrative actions.”

Nature of Administrative Law
Administrative law deals with the powers of administrative authorities, the exercise of such powers remedies for aggrieved persons by such law, etc. The administrative process is considered necessary evil in all progressive and developing societies, particularly in a welfare State. Such a process may affect the right of citizens of the country. It has been observed by Lord Denning that “Proper exercise of the new powers of the executive lead to the welfare state, but if abused they lead to the totalitarian State.”

Scope of Administrative Law
Administrative law deals with the following aspects:
  1. Who are administrative authorities?
  2. The powers exercised by such authorities.
  3. Limitations of such powers exercised by such authorities.
  4. Procedure for using administrative powers.

According to Friedman, the scope of administrative law is as under:
  1. It deals with law-making powers of administrative authorities under common law and various statutes.
  2. Judicial and quasi-judicial powers of administrative authorities i.e. Court and Tribunal to deal with problems and remedies (Article 136 and 227 of the Constitution of India).
  3. Executive power of administration i.e. concentration of power.
  4. Power of the court to supervise administrative authorities.
  5. Legal liability of public servant.

According to M.C Jain, the scope of administrative law includes:

Delegated legislation, indispensability, permissibility and constitutionality, modes of delegation, procedural formality required to be observed by an administrative agency, safeguard against abuse of power and judicial control.

In respect of judicial functions, it covers the judicial function of administrative agencies, Administrative Tribunal, procedural guarantee, the finality of the decision, the jurisdiction of the Supreme Court and the High Court over the administrative agencies and Tribunals.

It also includes immunities of administrative agencies and bodies from suits and remedies available against the Union of India and the State instrumentalities.

Administrative Law and Constitutional Law
  1. A Constitution is the supreme law of the country. No law is above the Constitution of India and hence, every law must satisfy its provisions and not be in its violation. So, administrative law is subordinate to constitutional law. In another word, while Constitution is the genus, administrative law is a species.
  2. Constitution deals with the structure of the State and its various organs, whereas administrative law deals only with the administration of the State.
  3. While Constitution touches all branches of law and deals with general principles relating to organization and powers of the various organs of the State, administrative law deals only with the powers and functions of the administrative authorities.
In a nutshell, the administrative authorities should follow the Constitution first and then work as per the administrative law.

Administrative Law in India
Administrative law in India meant to regulate administrative actions by controlling delegated legislation and subjecting administrative discretionary actions to judicial review. It also provides for the Constitution of Tribunals and their composition.

Delegated Legislation
When the functions of the legislature are entrusted to organs other than the legislature by the legislature itself, the legislation made up by such organ is called delegated legislation. Such power is delegated to the executives or administrators to resolve the practical issues which they have to face on a day-to-day basis. The practice of delegated legislation is not bad, however, the risk of abuse of power is incidental and hence, safeguards are mandatory. There are three measures to control abuse of power with the help of delegated legislation as adopted in India, which are as follows:

Parliamentary Control
Parliamentary control is considered as a normal constitutional function because the executives are responsible for the Parliament. At the initial stage of Parliamentary control, it is made sure that the law provides the extent of delegated power. The second stage of such control involves laying of the Bill before the Parliament.

There are three types of laying:
  1. Simple Laying: In simple laying, the rules and regulations come into effect as soon as they are laid down before the Parliament. It is laid down to inform the Parliament, but the consent of the Parliament with respect to its approval for the rules and regulations are not required.
  2. Negative Laying: The rules will come into force as soon as they are placed before the Parliament, but cease to have effect if disapproved by the Parliament.
  3. Affirmative Laying: The rules shall have no effect unless approved by both the houses of the Parliament.

Procedural Control
Procedural control means that the procedures defined in the Parent Act (Act delegating the legislating power) have to be followed by the administrative authority while making the rules. It involves pre-publication of the rules, so that the people who would be affected by the proposed rules know it beforehand and can make representations if they are not satisfied. After pre-publication is done and once all the concerned bodies, persons, and authorities have been consulted, the rules are to be published in the official gazette, in order to inform the public about the existence of the rules.

Judicial Control
The judiciary looks into the following aspects to determine the legal validity of the rules so made, using the power so delegated:
  1. If the administrative legislation ultra-vires the Constitution.
  2. If the administrative legislation ultra-vires the Parent Act.
  3. If the administrative legislation is arbitrary, unreasonable, and discriminatory.
  4. If the administrative legislation is mala fide (in bad faith).
  5. If the administrative legislation encroaches upon the rights of private citizens derived from the common law, in the absence of express authority in the Parent Act.
  6. If the administrative legislation is in conflict with another Statute.
  7. Power of the legislating authority to legislate the rules.
  8. If the administrative legislation is vague.

Administrative Adjudication Tribunals
Tribunals are constituted for speedy adjudication (a formal judgment on a disputed matter) of disputes and settlement of complaints. In a Tribunal, matters are adjudicated by a bench comprising both judicial and non-judicial members. However, Tribunals are not a substitute for courts. In India, there are a number of Tribunals which are constituted under the Central Acts.

Some of the tribunals are listed below:
  1. Claim Tribunal Constituted under the Motor Vehicle Act, 1939.
  2. Industrial Tribunal Constituted under the Industrial Dispute Act, 1947.
  3. Income Tax Appellate Tribunal Constituted under Income Tax Act, 1961.
  4. Administrative Tribunal Constituted under the Administrative Tribunal Act, 1985.
  5. Railway Rates Tribunal Constituted under the Railway Act, 1989.
  6. Competition Appellate Tribunal Constituted under the Competition Act, 2002.

In L Chandra Kumar V. Union of India case, the Supreme Court had held that Tribunals are the court of the first instance in respect of the areas of law for which they were constituted. All the decisions of the Tribunals are subject to scrutiny before the Division Bench of the High Court within whose jurisdiction the concerned Tribunal would fall, through an appeal.
Lokayuktas and RTI Act (Lakpal and Lokayuktas Act, 2013)

The Lokpal and Lokayuktas Act, 2013 is an Anti-Corruption Act, which provides for the establishment of the institution of Lokpal which would inquire into allegations against public functionaries and matters connected to them. The Act provides for an investigation into complaints of maladministration (mismanagement). The office of the Lokpal is equivalent to that of an Ombudsman.

The Act was a result of the massive public protest against corruption under the leadership of Anna Hazare. The Lokpal is an officer of the Parliament having as his primary function, the duty of acting as an agent for the Parliament for the purpose of safeguarding citizens against the abuse or misuse of administrative power by the executive.

Right to information Act, 2005
The Act provides for the right to information of citizens to gain access to information under the control of public authorities. The Act promotes the transparency and accountability of every public authority. The Act is essential as it keeps the citizenry informed and holds the government and its agencies accountable to the governed.

Importance of Administrative Law
Administrative law plays an important role in changing the era of the administrative system. It can be understood with the help of the following points:
  1. In Changing Nature of State: The Police State has changed to Welfare State in the 20th Century. The traditional functions of the State i.e. defence and administration of justice have undergone a drastic change. The State undertakes various functions for the benefit of the people in the 20th century.
  2. To Remove the Shortcomings of the Judicial System: The judicial system has proved to be inadequate to decide all types of disputes. It was slow, expensive, complex, and having various other drawbacks that lead to the enhancement of the importance of administrative law.
  3. Remove the Inadequacy of Legislative Process: The legislative process is not capable of laying down detailed rules and regulations for the functioning of the State. Thus, administrative law helps in removing this issue.
  4. Reform in Social Life: The social aspect has undergone a drastic change amongst the citizens of the State. More and more laws were required to deal with complex situations in the daily life of citizens.
  5. Increasing Demand from People: Merely defining the right of citizens was not sufficient, but also solving their problem was important for the State.
  6. Enhance the Scope for Experiment: The present law-making process is time-consuming and cannot deal with all problems of the society. Therefore, it is necessary for a different aspect of making laws.
  7. Preventive Measures: Administrative authorities also implement preventive measures like licensing to liquor shops, rate fixing, etc.
  8. State Economy: The administrative authorities frame national policies and plans for achieving goals contemplated in the Constitution of India.
  9. Regulatory Measures: Administrative authorities implement regulatory measures in relation to industrial production, manufacturing, and distribution of essential commodities.
  10. Industries: Industrialization leads to various labor issues. The administrative machinery was needed to solve such issues.

Natural Justice
Natural justice is a concept of common law and represents higher procedural principles developed by the courts, which every judicial, quasi-judicial and administrative agency must follow while taking any decision adversely affecting the rights of a private individual. In short, natural justice implies fairness, equity, and equality.

It is basically a technical terminology for the rule against bias (nemo judex in causa sua) and the right to a fair hearing (audi alteram partem). While the term natural justice is often retained as a general concept, it has largely been replaced and extended by the 'general duty to act fairly'.

The basis for the rule against bias is the need to maintain public confidence in the legal system. Bias can take the form of actual bias, imputed bias, or apparent bias. The mere fact that a decision affects the rights or interests is sufficient to subject the decision to the procedures required by natural justice.

Principles of Natural Justice
In India, the principles of natural justice is firmly grounded in Article 14 and 21 of the Constitution. With the introduction of the concept of substantive and procedural due process in Article 21, all that fairness which is included in the principles of natural justice can be read into Article 21. The violation of principles of natural justice results in arbitrariness and therefore, it also violates the equality clause of Article 14.

The principle of natural justice encompasses following two rules:
Audi Alteram Partem
Justice cannot prevail if there is no equality. Equality is one of the pillars on which the entire legal system is based. Under the Indian Constitution, the principles of natural justice can be traced under Article 14 and Article 21.

The principle of Audi Alteram Partem is the primary notion of the principle of natural justice. It is derived from The Latin phrase “audiatur et altera pars”. It means 'hear the other side', or 'no man should be condemned unheard' or 'both the sides must be heard before passing any order'.

The motive of this maxim is to provide an opportunity for other parties to respond to the evidence against him. This ensures a fair hearing and fair justice to both parties. Under this doctrine, both parties have the right to speak. No decision can be declared without hearing both the parties. This principle aims to allow both parties to defend themselves.

Essential elements of this maxim include:
  1. Right to notice.
  2. Right to present case and evidence.
  3. Right to rebut adverse evidence i.e. cross-examination and legal representation.
  4. Disclosure of evidence to the party.
  5. Report of inquiry to be shown to the other party.
  6. Reasoned decisions or speaking orders.

Nemo Judex in Causa Sua (Rule against Bias)
It is popularly known as the rule against bias. It is the minimal requirement of the natural justice that the authority giving decision must be composed of impartial persons acting fairly, without prejudice and bias.

According to the Lectric Law Library's Lexicon:
any mental condition that would prevent a judge from being fair and impartial is called bias. It may be ground for disqualification of the judge in question.”

It is also defined as:
“A predisposition or a preconceived opinion that prevents a person from impartially evaluating facts that have been presented for determination; a prejudice.”

This principle of natural justice consists of the rule against bias or interest and is based on three maxims:
  1. No man shall be a judge in his own cause.
  2. Justice should not only be done but manifestly and undoubtedly be seen to be done.
  3. Judges, like Caesar's wife, should be above suspicion.

Kinds of Bias
  1. Personal Bias: It arises out of the personal or professional relationship or hostility between the authority and the parties. It's human nature that we try to give the favorable decisions to our friends or relatives, whereas using the same as a weapon against the enemies. There are two kinds of test for personal bias:
    1. Reasonable Suspicion of Bias Looks mainly outward appearance.
    2. Real Likelihood of Bias Focuses on court's own evaluation of possibilities.
       
  2. Pecuniary Bias: Any financial interest, howsoever small it may be, is bound to vitiate the administrative action and the judicial opinion is unanimous as to it.
     
  3. Subject-matter Bias: The situations where the deciding officer is directly or indirectly is the subject-matter of the case. In R v. Deal justices case, the Magistrate was not declared disqualified to try a case of cruelty to an animal on the ground that he was a member of the royal society for the prevention of cruelty to animals, as this did not prove a real likelihood of bias.
     
  4. Departmental Bias: The problem of departmental bias is something which is inherent in the administrative process and if it is not effectively checked, it may negate the very concept of fairness in the administrative proceeding. The problem of departmental bias arises in different context i.e. when the functions of judge and prosecutors is combined in the same department. It. is not uncommon to find that the same department which initiates a matter also decides it, therefore, at times, departmental fraternity and loyalty militates against the concept of fair hearing.
     
  5. Preconceived Notion Bias: Bias arising out of preconceived notions is a very delicate problem of administrative law. On the one hand, no judge as a human being is expected to sit as a blank sheet of paper. On the other hand, preconceived notions would vitiate a fair trial.
The problem of bias arising from preconceived notions may have to be disposed of as an inherent limitation of the administrative process. It is useless to accuse a public officer of bias merely because he is predisposed in favor of the same policy in the public interest.

Doctrine of Necessity
The bias would not disqualify an officer from taking an action, if no other person is competent to act in his place. This exception is based on the doctrine of necessity. The doctrine of necessity makes it imperative for the authority to decide and considerations of judicial propriety must yield. It can be invoked in cases of bias, where there is no authority to decide the issue.
If the doctrine of necessity is not allowed full play in certain unavoidable situations, it would impede the course of justice itself and the defaulting party would benefit from it. If the choice is between either to allow a biased person to act or to stifle the action altogether, the choice must fall in favor of the former as it is the only way to promote decision-making.
Therefore, the Court held that bias would not vitiate the action of the speaker in impeachment proceedings and the action of the Chief Election Commissioner in election matters.

Judicial Review
Judicial review is the power of the Supreme Court or High Court to examine an executive or legislative act and to invalidate that act if it is contrary to constitutional principles. This power has been incorporated in the Constitution itself and cannot be done away with, since it is a basic feature. The researchers have analyzed the ground of judicial review. Though there is no clarity regarding the same, through an analysis of case law, the researchers have attempted to arrive at a certain accepted basis for such a review to take place.

Judicial Review of Administrative Actions-Grounds
In Council of Civil Services Union v. Minister of Civil Service case, the grounds of judicial review was stated to be:
  1. Jurisdictional error
  2. Irrationality
  3. Procedural impropriety
  4. Proportionality
  5. Legitimate expectation
Though these grounds of judicial review are not exhaustive and cannot be put in watertight compartments, yet, these provide sufficient base for the courts to exercise their review jurisdiction over administrative action in the interest of efficiency, fairness and accountability.

Jurisdictional Error
The term jurisdiction means power to decide. The jurisdiction of the administrative authority depends upon the facts, the existence of which is necessary to initiate the proceedings and without which the act of the court is a nullity. These are called 'jurisdictional facts'. This ground of judicial review is based on the principle that administrative authorities must correctly understand the law and its limits before any action is taken. The court may quash an administrative action on the ground of ultra vires in the following situations:

Lack of Jurisdiction
It means where the Tribunal or authority has no jurisdiction at all to pass an order.

The court has the power to review and may be exercised on the following grounds:
  1. That the law under which the administrative authority is constituted and exercising jurisdiction is itself unconstitutional.
  2. That the authority is not properly constituted as required by law.
  3. That the authority has wrongly decided a jurisdictional fact and thereby assumed jurisdiction which did not belong to it.

Excess of Jurisdiction
Here the authority initially had the jurisdiction but exceeded it and hence, its action becomes illegal.

This may happen under the following situations:
  1. Continue to exercise jurisdiction despite the occurrence of an event ousting jurisdiction.
  2. Entertaining matters outside its jurisdiction.

Abuse of Jurisdiction
All the administrative powers must be exercised fairly, in good faith for that purpose for which it is given. In the following situations, abuse of power may arise:
  1. Improper Purpose: Administrative power cannot be used for the purpose for which it was not given.
     
  2. Error Apparent on the Face of the Record: In Syed Yakoob v. K.S. Radhakrishnan case, the Supreme Court explained that there would be a case of error of law apparent on the face of the record, where the conclusion of law recorded by an inferior tribunal is:
    1. based on an obvious misinterpretation of the relevant Statutory provision, or
    2. in ignorance of it, or
    3. in disregard of it, or
    4. expressly based on reasons which are wrong in law.
       
  3. In Bad Faith: Where a decision-maker has acted dishonestly by claiming to have acted for a particular motive when in reality the decision was taken with another motive in mind, he may be said to have acted in bad faith.
     
  4. Fettering Discretion: An authority may act ultra vires if, in the exercise of its powers, it adopts a policy which effectively means that it is not truly exercising its discretion at all.

Irrationality (Wednesbury Test)
A general principle which has remained unchanged is that discretionary power conferred on an administrative authority is required to be exercised reasonably. A person, in whom discretion is vested, must exercise his discretion upon reasonable grounds. A decision of the administrative authority shall be considered irrational if it is so outrageous in its defiance to logic or accepted norms of moral standard that no sensible person, on the given facts and circumstances, could arrive at such a decision.

Irrationality as a ground of judicial review was developed by the court in Associated Provincial Picture House v. Wednesbury case, later came to be known as “Wednesbury test” to determine 'irrationality' of administrative action.

The Delhi High Court in Neha Jain v. University of Delhi case, clarified that the basic requirement of Article 14 is fairness inaction of the State and non-arbitrariness in essence and substance is the heart of fair play, judicial interference with policy decision is permissible:
  1. If the decision is shown to be patently arbitrary, discriminatory, or mala fide.
  2. If it is found to be unreasonable or violative of any provision of the Constitution or any other statute.
  3. If it can be said to suffer from any legal infirmity in the sense of its being wholly beyond the scope of the regulation-making power.
  4. If it is demonstrably capricious or arbitrary and not informed by any reason.

Procedural Impropriety

Failure to comply with the procedures laid down by statute may invalidate a decision. Procedural impropriety is to encompass two areas viz. failure to observe rules lay down in statute; and a failure to observe the basic common law of natural justice. It is a fundamental requirement of justice that, when a person's interests are affected by a judicial or administrative decision, he or she has the authority to know and understand any allegations made and to make representations to the decision-maker in order to meet such allegations.

The principles of natural justice, which are imposed by the courts, comprise two elements:
  1. Audi alteram partem (the rule of fair hearing).
  2. Nemo Judex in causa sua (there should be an absence of bias with no person being a judge in their own cause). The essence of justice lies in a fair hearing. The rule against bias is strict, i.e. it is not necessary to show that actual bias existed but the merest appearance or possibility of bias will suffice.

Proportionality
Proportionality means that the administrative action should not be more drastic than it ought to be for obtaining the desired result. Proportionality is sometimes explained by the expression taking a sledgehammer to crack a nut. Thus, this doctrine tries to balance means with ends. Proportionality shares space with reasonableness and courts while exercising the power of review see, 'is it a course of action that could have been reasonably followed'.

Courts in India have been following this doctrine for a long time, but English Courts have started using this doctrine in administrative law after the passing of the Human Rights Act, 1998. Thus, if an action taken by the authority is grossly disproportionate, the said decision is not immune from judicial scrutiny. The sentence has to suit the offense and the offender and should not be vindictive or unduly harsh.

Legitimate Expectations
A legitimate expectation will arise in the mind of the complainant wherever he or she has been led to understand, by the words or actions of the decision-maker, that certain procedures will be followed in reaching a decision. A legitimate expectation amounts to an expectation of receiving some benefit or privilege to which the individual has no right. Legitimate expectation means expectation having some reasonable basis.

The doctrine of legitimate expectation has evolved to give relief to the people when they are not able to justify the claims on the basis of law in the strict sense of the term though they had suffered civil consequences because their legitimate expectation has been violated.

Two considerations apply to legitimate expectations
  1. The first is where an individual or the group has been led to believe that a certain procedure will apply.
  2. The second is where an individual or the group relies upon a policy or guidelines which have previously governed an area of executive action.
In R.P Singh v. State of Bihar case, the Supreme Court explained that the expression 'established practice' referred to regular, consistent, predictable, and certain conduct, process, or activity of the decision-making authority. The expectation should be legitimate i.e. logical, reasonable, and valid. The doctrine of legitimate expectation would apply in cases where the decision taken by the authority is found to be arbitrary, unreasonable, and not taken in the public interest.

In Jatinder Kumar v. State of Haryana case, the court held that the Government had a right to review the decisions taken by the previous establishments and hence, it could suspend the process of recruitment started by the previous government, because of allegations of irregularities and this could not be challenged on the ground of violation of legitimate expectations.

In a nutshell, judicial review is a powerful weapon to restrain the unconstitutional exercise of power by the legislature and executive. The expanding horizon of judicial review has taken in its fold the concept of social and economic justice. While the exercise of powers by the legislature and executive is subject to judicial restraint, the only check on our own exercise of power is the self-imposed discipline of judicial restraint.

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