Judicial Review

Judicial review is a process, which invokes the inherent supervisory jurisdiction

of the High Court/SC and allows the court to review the legality of decisions
made by bodies exercising public law functions.
Public bodies include:
a. Government ministers and departments;
b. Local authorities;
c. Inferior courts;
d. Tribunals;
e. Other administrative bodies
Judicial review is denoted by the writ system, which functions in India under
Arts. 32, 136 and 226 of the Constitution.
Broadly speaking, judicial review in India deals with three aspects:
Judicial review of legislative action;
Judicial review of judicial decision; and
Judicial review of administrative action.
Judicial review is supervisory, rather than corrective, in nature.

Grounds
Delhi Development Authority v M/S UEE Electricals Engg.P.Ltd
Advertisements attracting tender for installation of pump was published. It also
mentioned that the authority had the right to not grant tender to the lowest
bidder. Respondent applied for tender. He also had to collect overdue amounts
from the DDA. While doing so he injured the DDA officer and also made false
allegations against the officer, which was discovered to be false in a separate
proceeding. DDA authorities decided to withdraw the tender of the respondent
although it was the lowest and also blacklisted the respondent for 5 years.
Challenged in the HC which ordered that the respondent should be issued the
tender and reversed the decision to blacklist him for 5 years.
SC:- The court observed: One can conveniently classify under three heads the
grounds on which administrative action is subject to control by judicial review.
1. The first ground is illegality,
2. the second irrationality, and
3. the third procedural impropriety.
Whether action falls in any of the categories has to be established.
To invalidate or nullify any act or order must establish the charge of bad faith, an
abuse or a misuse by the authority of its powers. In this case the respondent fails
to show abuse or misuse of power and the High Court cannot in its review power
substitute the decision of the administrative authority.

Judicial Review of administrative action can be exercised on four grounds:
1. Illegality
2. Irrationality
3. Procedural Impropriety
4. Proportionality

Illegality: - Body acting beyond the powers which are prescribed for it. In other
words, it acts ultra vires or there is lack of jurisdiction.
1. Decisions taken for improper purposes may also be illegal: Abuse of
Jurisdiction
2. Excess jurisdiction
3. Failure to exercise jurisdiction

Irrationality: - The principle of reasonableness has been laid down in
Wednesbury Corpn. case which is thenceforth referred to as the Wednesbury
principle.
It has three elements:
(i) The authority should take all relevant facts into consideration;
(ii) It should exclude all irrelevant facts from consideration; and
(iii) "Irrational" means absurd or illogical - a decision, which no person
properly advised on the facts, would come to.

Procedural Impropriety:- Under procedural impropriety various refinements
of the principle of natural justice can be grouped.
(i) Breach of the principle fair hearing
(ii) Breach of rule against bias
(iii) If a statute prescribes a procedure then administrative authority should
follow such procedure, violation of such procedure might vitiate an
administrative action.
(iv) Implied requirement where statute is silent about principles of natural
justice

Proportionality: - you must not use a hammer to crack a nut if a nut cracker
would do.
1. Proportionality broadly requires that government action must be no
more intrusive than is necessary to meet an important public purpose.
2. Proportionality means that action should not be more drastic than it
ought to be for obtaining the desirable result.
3. It insists that administrative authority cannot exercise their discretion as
they like, they are under an obligation to make a judicious balance
between the community and individual interest and must abstain
from taking an action which will put burden on the individual
To apply doctrine of proportionality courts must apply the balancing
test and necessity test.
Balancing test : the possible adverse effects of the decision on the
rights, liberties and interests of the persons affected by the decision
Necessity test: action is least restrictive alternative (as in
restrictions allowed on rights exercised as per Article 19)

(Proportionality) Ranjit Thakur v. UOI
The appellant, a Signal, of army, while serving out a sentence of 28 days' rigorous
imprisonment imposed on him was alleged to have committed another offence
by refusing to eat his food when ordered to do so. He was charged under Army
Act, 1950 for disobeying a lawful command given by his superior officer. A
sentence of rigorous imprisonment for one year was imposed by a Summary
Court Martial. In the appeal by special leave, it was contended that Court- Martial
were vitiated by awarding a punishment so disproportionate to the offence.
Held The question of the choice and quantum of punishment is within the
jurisdiction and discretion of the Court-Martial. (Proportionality) But the
sentence has to suit the offence and the offender.It should not be vindictive or
unduly harsh. It should not be so disproportionate to the offence not amount in
itself to conclusive evidence of bias.
The doctrine of proportionality, as part of the concept of judicial review, would
ensure that even on an aspect which is, otherwise, within the exclusive province
of the Court- Martial, if the decision of the Court even as to sentence is an
outrageous defiance of logic, then the sentence would not be immune from
correction.
Irrationality and perversity are recognised grounds of judicial review.

(Impropriety) Union of India v. G. Ganayutham
The respondent was working as Superintendent of Central Excise. He was served
with a memo of eight charges and an inquiry was conducted. The Inquiry Officer
submitted a report stating that charge No.4 was not proved, charge NO.8 was
partly proved, and other charges were held proved.The respondent retired from
service.
A show cause notice was issued proposing withdrawal of full pension and
gratuity admissible to the respondent on the ground that the Government
suffered substantial loss of revenue due to the misconduct of the respondent.
The respondent submitted an explanation. The UPSC was consulted and the
Commission felt that charges 4 and 6 were not proved but concurred with the
findings of the Inquiry Officer on other charges.
Based on the Commission's advice, a penalty of withholding 50% of the pension
and 50% of gratuity was awarded to the respondent.
Questioning the same, a writ petition was filed by the respondent
Held:- The Court would not interfere with the administrator's decision unless it
was illegal or suffered from procedural impropriety or was irrational in the
sense that it was in outrageous defiance of logic or moral standards. There is no
contention that the punishment imposed is illegal or vitiated by procedural
impropriety.
As to 'irrationality', there is no finding that the decision is one, which no
sensible person who weighed the pros and cons could have arrived at, nor is
there a finding, based on material, that the punishment is in 'outrageous'
defiance of logic.

(Proportionality) Omkumar v. Union of India
5 officials of the DDA had delivered possession of land to a private construction
company without fully collecting the consideration. Further officials also
permitted construction of a building. Private Construction Company collecting
money from public in excess of the number of flats built by them. Many people
lost their life savings. Upon enquiry, DDA officials were punished with censure,
reduction in salary and reduction in the pay scale. They claim that punishment is
disproportionate.
Supreme Court accepted the application of proportionality doctrine in India. The
Supreme Court found that administrative action in India affecting fundamental
freedoms (Article 19 and Article 21) have always been tested on the anvil of
proportionality, even though it has not been expressly stated that the principle
that is applied is the proportionality principle. Thus the court categorically held
that the doctrine of proportionality is applicable to judicial review of
administrative action that is violative of Article 19 and Article 21 of the
Constitution of India.
With respect to Article 14 of the Constitution of India, Supreme Court concluded
that when an administrative action is challenged as discriminatory the courts
would carry out a primary review using the doctrine of proportionality. However
when an administrative action is questioned as arbitrary the principle of
secondary review based on Wednesbury principle applies.
The Supreme Court also held that punishment in service law is normally
challenged as arbitrary under Article 14 of the Constitution, and hence only
secondary review based on Wednesbury principle would apply. The Court while
reviewing punishment and if it is satisfied that Wednesbury principles are
violated, it has normally to remit the matter to the administrator for a fresh
decision as to the quantum of punishment. Only in rare cases where there has
been long delay in the time taken by the disciplinary proceedings and in the time
taken in the Courts, and such extreme or rare cases can the Court substitute its
own view as to the quantum of punishment. We feel that the administrator's
decision in the primary role is not violative of Wednesbury Rules and hence
upheld.

State of Orissa v. Vidhya Bhushan Mahapatro
The respondent, a non-gazetted permanent employee of the State, was charged
with having received illegal gratification on five occasions and being possession
of property disproportionate to his income. The Governor, after giving the
respondent a reasonable opportunity to show cause against the proposed
punishment, dismissed him. HC had directed the Governor to reconsider the
order of dismissal. SC Held The Court has no jurisdiction as not all it appears
that there had been no procedural impropriety, illegality or irrationality. The
Court has no jurisdiction if the findings of the enquiry officer or the Tribunal
Prima facie make out a case of crime, to direct the authority to reconsider that
order because in respect of some of the findings but not all it appears that there
had been violation of the rules of natural justice. The High Court was, in our
judgment, in error in directing the Governor of Orissa to reconsider the question.
The appeal must therefore be allowed and the order passed by the High Court set
aside.

Limitations of Judicial Review
1. The parameters of judicial review must be clearly defined and never
exceeded. If the authority has faultered in its wisdom, the court cannot act
as super auditor.
2. Unless the order passed by an administrative authority is unlawful or
unconstitutional, power of judicial review cannot be exercised.
3. An order of administration may be right or wrong. It is the
administrators right to trial and error and so long as it is bonafide and
within the limits of the authority, no interference is called for.
4. In short, power of judicial review is supervisory in nature. Unless this
restriction is observed, the court, under the guise of preventing abuse of
power by the administrative authority, will itself be guilty of usurping
power.

POWER OF THE SC
The Power of judicial review is a constitutional power since it is the
Constitution which invests these powers in the Supreme Court.
So far the Supreme Court is concerned the relevant Articles are 32 and
Article 136.
Article 32 empowers the Supreme Court to issue directions, orders or
writs (which are specifically mentioned therein) for the enforcement of
fundamental rights.
The Supreme Court has further expanded the scope of this Article even in
cases where no fundamental right is involved.
Though Article 32 is called cornerstone of the democratic edifice, it
becomes inconvenient for the Supreme Court to entertain petitions under
original jurisdiction since it could overload the court.
Therefore, sometimes the Supreme Court suggests that the petitioner
should first approach the High Court under Article 226 before coming to
the Supreme Court under Article 32.

REMEDIES OF JUDICIAL REVIEW

WRITS
1. The Supreme Court under Article 32 and the High Courts under Article 226 are
vested with the powers to issue directions, orders or writs in the nature of:
habeas corpus,
mandamus,
prohibition,
quo warranto and
certiorari,.
Writ of Habeas Corpus
It is a process by which a person, who is confined without legal justification may
secure a release from his confinement. The writ is an order issued by the Court
calling upon the person by whom a prisoner is alleged to be kept in confinement
to bring him before the Court to let the Court know on what ground the prisoner
is confined.The writ of habeas corpus has assumed great importance in the
administrative process as wide powers of detention are conferred on the
administrative authorities in the modern times. The grounds of habeas corpus
are the same grounds of judicial review. So if the detention powers are used mala
fide or based on irrelevant or extraneous considerations or are used in violation
of statutory provisions, the writ of habeas corpus will issue to quash such a
detention. There is no need for a separate certiorari.

Writ of Manadamus
Mandamus is issued only when a legal duty is imposed on a public authority in
the performance of which the petitioner has a legal right.
Mandamus would also lie when there is a failure to perform a mandatory duty.
The petitioner must show that he has made a demand to enforce that duty and
the demand was refused. Mandamus will not lie when the duty is merely
discretionary. However, the court may issue a writ of mandamus where the
public authority has failed to exercise or has wrongfully exercised discretion
conferred on it by a statute or has exercised such discretion mala fide or on
irrelevant considerations. The writ of mandamus is issued against any court,
tribunal or administrative authority. The Supreme Court has developed a new
concept of continuing Mandamus by issuing directions from time to time and
keep the matter pending, requiring the agencies to report the progress of
investigation so that monitoring by the court could ensure continuance of the
investigation

Writ of Prohibition
It is available to prohibit administrative authorities from exceeding their powers
or misusing them. Prohibition is issued to protect the individual from arbitrary
administrative actions.It is an efficacious and speedy remedy where a person
does not desire any other relief except to stop the administrative agency. An
alternative remedy does not bar the issue of this writ. It can be issued even when
the matter is decided to stop the authority from enforcing its decision. If the lack
of jurisdiction is patent, the writ is issued as a writ of right.

Writ of Quo Warranto
1. The writ of quo warranto is issued against the holder of a public office
calling upon him to show with what authority he holds that office.
2. It is issued against the usurper of an office.
3. The object is to confer jurisdiction upon the judiciary to control the
executive action in making appointments to public offices and also to
protect the public from usurpers of public offices.
4. The law of standing is relaxed so that any member of the public can
challenge the action by this writ . The following conditions apply:
(i) The office in question must be a public office.
(ii) The office must be substantive in character.
(iii) The holder must not be legally qualified to hold the office or to
remain in the office.
(iv) The person must be holding the office when the writ is heard.
In common law, a writ is a formal written order issued by a body with
administrative or judicial jurisdiction;

Writ of Certiorari
The writ of certiorari is an important remedy to quash a decision of any court,
tribunal or administrative authority if it acted ultra vires their powers/ lacked
jurisdiction
The broad grounds for issuing the writ are:
(i) Lack or excess of jurisdiction
(ii) Authority is constituted improperly
(iii) Error of law apparent on the face of the record
(iv) Violation of the principles of natural justice