This article is written by Sushmita Choudhary from New Law College, Bharati Vidyapeeth Deemed University. It deals with the judicial review of administrative action which is necessary for the prevention of misuse of the administrative powers.
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In today’s era, the administration plays an important role in every individual’s life. We have accordingly seen the subject of administrative law remarkably expanding to meet the changing demands of new political, economic and social conditions.
Going by the words of Justice Quadri, “The essential difference between a Government of despots and a Government of democratically elected persons is that in the former case, there are no limitations on the powers or their exercise whereas in the latter case, the powers are defined and their exercise is regulated by law” the necessity of judicial review of administrative actions can be inferred. In a democracy like India which is governed by rule of law, the principle “be thou so high the law above you” is rightly implied. Judicial review is an essential component of the rule of law.
Administrative action under administrative law
Administrative law was recognized as a separate branch of legal discipline in the mid 20th century in India. Until well into the nineteenth century, the responsibilities of the state were few and limited, consisting of the maintenance of public order, the conduct of foreign affairs and the disposition of the armed forces. Nowadays, it’s far different. In the interests of protecting the public and maintaining law and order, the state intervenes into the lives of its citizens to a very considerable degree. The actions which are carried out under the administrative law are called administrative actions. An administrative action is a legal action which is concerned with the conduct of a public administrative body. This kind of action can compel an authority to take a certain action. It does not decide a right though it might affect a right. The principles of natural justice cannot be ignored while exercising “administrative powers”.
Judicial review has been recognized as a necessary and basic requirement for the construction of an advanced civilization to safeguard the liberty and rights of the citizens. The power of judicial review in India is significantly vested upon the High Courts and the Supreme Court of India. Judicial review is the court’s power to review the actions of other branches of government, especially the court’s power to deem invalid actions exercised by the legislative and executive as ‘unconstitutional’.
Broadly speaking, judicial review in India deals with:
- Judicial Review of Legislative Actions;
- Judicial Review of Administrative Actions;
- Judicial review of Judicial Actions.
We will be dealing with the second aspect i.e. judicial review of administrative actions. The judicial review ensures the legality of administrative actions.
Grounds of judicial review
The doctrine-ultra-vires is the basic structure of administrative law. It is considered as the foundation of judicial review to control actions of the administration. Ultra-vires refers to the action which is made in an excessive manner or outside the ambit of the acting party.
Generally, the grounds for judicial review in India are as follows-
- Jurisdictional Error;
- Procedural Impropriety;
- Legitimate Expectation.
The above grounds of judicial review were given by Lord Diplock of England in the case of Council of Civil Service Union v. Minister of Civil Service(1984). Though these grounds of judicial review are not exhaustive, yet these provide an apt base for the courts to exercise their jurisdiction.
The term ‘jurisdiction’ means the power to decide. There might be a ‘lack of jurisdiction’, ‘excess of jurisdiction’ or ‘abuse of jurisdiction’. The court may reject an administrative action on the ground of ultra vires in all these three situations.
A case of ‘lack of jurisdiction’ is where the tribunal or authority holds no power or jurisdiction at all to pass an order. The court may review this administrative action on the ground that the authority exercised jurisdiction which it was not supposed to. The power of review may be exercised on the following three grounds-
- That the law under which the administrative authority is constituted and exercising jurisdiction is itself unconstitutional,
- That the authority is not properly constituted as the law requires, and
- That the authority has mistakenly decided a jurisdictional fact and henceforth assumed jurisdiction which did not belong to it first.
A case of ‘excess of jurisdiction’ covers a situation wherein though the authority initially had the jurisdiction over a matter but then it exceeded and afterwards its actions become illegal. This can happen in the following situations when –
- An administrative body continues to exercise jurisdiction despite the occurrence of an event ousting the jurisdiction, and
- When it is entertaining matters outside its jurisdiction.
All administrative powers must be exercised bonafide and fairly. If the powers are abused, it will give rise to a ground of judicial review. An ‘abuse of power’ may arise under the following conditions-
- Improper purpose- When an authority uses its power for a different purpose
- Error apparent on the face of record- When it can be ascertained by examining the record without having to recourse to other evidence.
- In bad faith- Where an administrative authority has acted dishonestly by stating to have acted for a particular motive when in reality the decision was taken with some other motive in mind.
- Fettering discretion- When an authority adopts a policy in the exercise of its powers, which means that it is not actually exercising its discretion at all.
- Non-consideration of relevant material- When a decision-maker does not look at the relevant matter.
Irrationality (Wednesbury Test)
A general established principle is that the discretionary power conferred on an administrative authority should be exercised reasonably. A decision of an administrative authority can be held to be unreasonable if it is so outrageous in its defiance of logic or prevalent moral standards that no reasonable person who had applied his mind to the subject could have arrived at it.
‘Irrationality’ was developed as a ground of judicial review in the Associated Provincial Picture House v. Wednesbury(1947) case which later came to be known as the ‘Wednesbury test’. The court laid out three conditions in order to conclude the right to intervene-
- In arriving at the decision, the defendant took into consideration the factors that ought not to have been taken into, or
- The defendant failed to take into consideration the factors that ought to have been taken into, or
- The decision was so unreasonable that any reasonable authority would never consider imposing it.
The court held that it could not intervene to change the decision of the defendant simply because it disagreed with it.
It is a failure to comply with the laid down procedures. Procedural Impropriety is to cover two areas which are failure to observe rules given in statute and to observe the basic common-law rule of justice.
Ridge v Baldwin(1963) is an exclusive case where procedural fairness shows its insistence on the judicial review irrespective of the type of body determining the matter. Ridge, the Chief Constable of Brighton was suspended on the charges of conspiracy to obstruct the course of justice. Despite the clearance of allegations against Ridge, the Judge made comments which criticized Ridge’s conduct. Following that, Ridge was dismissed from the force but he was not invited to attend the meeting which had decided his dismissal. Later, he was given an opportunity to be heard before the committee which had dismissed his appeal. Ridge then appealed to the House of Lords that the committee had totally violated the rules of natural justice. This case has been important because of the emphasis on the link existing between the right of a person to be heard and the right to know the case brought against him.
Proportionality means that the concerned administrative action should not be more forceful than it requires to be. The principle of proportionality implies that the court has to necessarily go into the advantages and disadvantages of the action called into question. Unless the so-called administrative action is advantageous and in the public interest, such an action cannot be upheld. This doctrine tries to balance means with ends.
Courts in India have been adhering to this doctrine for a long time but Courts in England started using it after the passing of the Human Rights Act, 1998. In the test of proportionality, the court quashes the exercise of discretionary powers in which there is no reasonable relation between the objective to be achieved and the means of achieving it. If the administrative action is disproportionate to the mischief, it will be quashed.
In Hind Construction Co. v. Workmen(1965), some workers called for a holiday and remained absent. They were later dismissed from service. The court held that the workers should have been warned and fined instead of abruptly being dismissed in a permanent manner. It was out of the question to think that any reasonable employer would have given such extreme punishment. The court held that the punishment imposed on the workmen was not only severe but also disproportionate.
This doctrine serves as a ground of judicial review to protect the interest when a public authority rescinds from a representation made to a person. A legitimate expectation arises in the mind of the complainant who has been led to understand expressly or impliedly that certain procedures will be followed in reaching a decision. The expectation has a reasonable basis. This doctrine has evolved to give relief to the persons who have been wronged because of the violation of their legitimate expectation and have not been able to justify their claims on the basis of law. Two considerations determine legislative expectations-
- Where an individual or group has been led to believe impliedly or expressly that a certain procedure will apply.
- Where an individual or group relies upon a particular policy or guideline which has previously governed an area of executive action.
In Regina v. Liverpool Corporation ex parte Liverpool Taxi Fleet Operators Association(1972), the Corporation had given undertakings to the effect that the taxi drivers’ licenses would not be revoked without their prior consultation. But the corporation acted in the breach of its undertaking. The court ruled that the taxi drivers had a right to be consulted.
It means “have the body”. This writ is issued as an order calling upon the person who has detained another person to produce the detainee before the court of law. If the court finds out that the detention has been illegal or without legal justification, it will order for the immediate release of the detainee. The main objective of this writ is not to punish the detainer but to release the detainee from wrongful detention.
It means ‘to command the public authority’ to perform its duty. It is a command given by the higher courts (High Courts and Supreme Court) to the Government, Inferior courts, tribunals, corporations, authorities or any other person to do any act or refrain from doing an illegal act. The purpose of this writ is to compel the performance of public duties and to keep control over the activities of the administration.
The word ‘quo warranto’ means by what authority. Such writ is issued against a person who usurps a public office. The court directs the concerned person to show by what authority he holds that office. The unauthorized or illegal usurper would be removed by judicial order and the right person belonging to it would be entitled to it.
Prohibition is issued by a superior court to an inferior court or tribunal or body exercising judicial or quasi-judicial functions to prevent them from exceeding their jurisdiction. It is based upon the maxim ‘Prevention is better than cure’.
This writ is issued by the Superior Courts (High Courts and the Supreme Court) to the inferior court or tribunal or body which may exercise judicial or quasi-judicial functions, for the correction of jurisdiction or error of law committed by them. If any order passed by them is illegal, then the Superior Court may quash or demolish it. Grounds of this writ are (a) excess or failure to exercise the jurisdiction (b) violation of the principles of natural justice (c) authority has failed to correct an error which has been apparent on the face of the record.
Judicial review of administrative action is, in a sense, the heart of administrative law. It is an excellent way of inquiring into the legal competence of a public authority. Judicial review is considered to be the basic feature of our Constitution. With the tremendous increase in powers of the administrative authorities, judicial review has become an important area of administrative law. The main purpose of judicial review is to protect the interest of its citizens from the excessive powers or illegal actions of the administrative authorities.
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