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Jaipur National University

Seedling School of Law and Governance





Administrative Law Project
On
Judicial Review of Administrative Action












Submitted To: Miss Rachna Choudhary (Faculty of Law)
Submitted By: Abha BALLB (5
th
sem.)

Meaning
Judicial review is a courts power to review, and possibly nullify, laws and governmental acts that
violate the constitution and higher norms. It is a way to assure that governmental actors respect
the constitution and do not use powers granted to them by the constitution to seize illegitimate
power. Judicial review is generally the final word by a governmental institution on a laws
validity
The system of judicial review of administrative action has been inherited from Britain. it is on
this foundation that the Indian court have built the superstructure of control mechanism. The
whole law of judiciary review of administrative action has been developed by judge on case to
case basis. Consequently, a ticket of technicality and inconsistency surrounds it.
However, present trend of judicial decision to widen the scope of
judicial review of administrative action and to restrict the immunity from judicial review to class
of cases which relate to deployment of troops and international treaties, etc.
1

Judicial review of administrative policy
Norms of judicial review of a administrative policy are more
exacting and intrusive than the legislative policy. in case of administrative policy there is
more need of scrutiny and balancing. Courts are very reluctant to strike down legislation
unless there is a clear violation of constitutional provisions. Court is not concerned with
wisdom of the legislature but only with its legislative competence, and court will uphold the
policy irrespective of courts own view
2
.
However, an administrative policy laid down by its rule making power or in exercise of
its executive powers can be review if:
1. It is unconstitutional;
2. It is beyond the power of the parent act or regulation;
3. The delegate has acted beyond the power of delegation;
4. It is contrary to statutory policy a larger policy.
3


1
Indian Railway Construction Co. Ltd .V. Ajay Kumar,(2003) 4 SCC 579
2
Karnataka Bank Ltd .v. State of A.P., (2008) 2 SCC 254
3
DDA v. Joint Action Committee, Allotment of SFS Flats,(2008) 2SCC 672.
Executive decision cannot be termed as policy decision and there is also no presumption of its
Constitutionality. Courts will apply doctrine of wednesbury unreasonabless and doctrine of
proportionality in judging the validity of an administrative policy.
The duty of the court in exercising the power of judicial review is thus to confine itself to
the following questions
4

Whether a decision-making authority exceeded its powers?

Whether the authority has committed an error of law?

Whether the authority has committed a breach of the principles of natural justice?

Whether the authority has reached a decision which no reasonable person would have
reached?

Whether the authority has abused its power?

The power of judicial review is not directed against the decision but is confined to the
decision-making process.
5
Therefore, courts generally do not appreciate evidences of enter
into determination of questions which demand elaborate examination of evidences or
interfere in the punishment imposed unless the administrative decision is mala fide or made
in constitutional provision or is such which shocks the conscience the court.
6

Thus the judicial review of administrative actions can be exercised on the following
grounds:
Illegality: This means that the decision-making must correctly understand the law that
regulates his decision-making power and must give effect to it.
Irrationality: This means that the decision is so outrageous in its defiance of logic or of
accepted moral standards that no sensible person could have arrived at such a decision.

4
(1994)6 SCC 651,676.
5
Haryana Development authority v. Roochira Ceramics,(1996)6 SCC 584.
6
B. C. Chaturvedi v. Union of India,(1995)6 SCC 749.
Procedural impropriety: This means that the procedure for taking administrative decision
and action must be fair, reasonable and just.
Proportionality: This means in any administrative decision and action the end and means
relationship must be rational.
Unreasonableness: This means that either the facts do not warrant the conclusion reached
by the authority or the decision is partial and unequal in its operation.

Thus the modern trend in the area of judicial review is towards judicial retraint.
7
Against this
backdrop the policy decision of the government is not the subject of judicial review unless it
is unreasonable or against public interest.
8

Judicial review of Administrative Action: Mode
Public law review
Basic purpose of judicial review is to enforce constitutionalism and to guard against
majoritarianisn. Thus an important aspect of public law review is not only the enforcement of
private right but to keep the administrative and quasi administrative machinery within proper
control. This aspect of public law review was rightly stressed by the Supreme Court in S.L
Kapoor v. Jagmohan.
9
In this case two non-official members of the New Delhi Municipal
Committee had filed petition before the Supreme Court under Art136 against the
governmental action of superseding the municipal Committee without complying with the
principle of Natural Justice. During the pendency of the case, the term of office of the
petitioner expired. It was argued that since the petition has become infructuous, the court has
no power to continue with the appeal. Rejecting the contention the Apex Court held that since
the petition involves an issue of public importance, the court can still decide the issue even in
the face of loss of standing of the petitioners.
The prime function of judicial review is to check the abuse of administrative powers and to
enforce accountability on the operators of these powers.
The power of public law review is exercised by the Supreme Court and High Court through
writs of Certiorari, Prohibition, Mandamus, Quo-warranto and Habeas Corpus and also
through the exercise of power under Articles 136 and 226 of the Constitution.

7
Tata Cellullar v. Union of India,(1994) 6 SCC 651,677-678.
8
State of U.P. v. U.P> University colleges pensioners Assn., (1994) 2 SCC 729.
9
(1980) 4 SCC 382
Certiorari
Certiorari is a Latin term being in the passive form of the word Certiorari meaning to
inform. It was a royal demand for information. Certiorari can be described as one of the
most valuable and efficient remedies. Certiorari is one of the five prerogative writs adopted
by the Indian Constitution under Article 226 which would be enforced against the decisions
of the authority exercising judicial or quasi judicial powers. Such powers are exercised when
the authorities have failed to exercise the jurisdiction though vested in it or failed to exercise
the jurisdiction though vested on him or to correct the apparent error on the face of record or
there is violation of the principle of natural justice. An instance showing the certiorari powers
was exercised by the Honble Supreme court in A.K.Kraipak v. Union of India
10
, where
the selection was challenged on the ground of bias. The Supreme Court delineated the
distinction between quasi judicial and administrative authority. The Supreme Court
exercising the powers issued the writ of Certiorari for quashing the action.
Prohibition
The writ of Prohibition is issued by the court exercising the power and authorities from
continuing the proceedings as basically such authority has no power or jurisdiction to decide
the case. Prohibition is an extra ordinary prerogative writ of a preventive nature. The
underlying principle is that prevention is better than cure. In East India Commercial Co.
Ltd v. Collector of Customs
11
, a writ of prohibition is an order directed to an inferior
Tribunal forbidding it from continuing with a proceeding therein on the ground that the
proceeding is without or in excess of jurisdiction or contrary to the laws of the land, statutory
or otherwise.
Mandamus
Mandamus is a judicial remedy which is in the form of an order from a superior court to any
Government agency, court or public authority to do or forbear from doing any specific act
which that body is obliged to do under the law. The writ of mandamus is issued whenever the
public authorities fail to perform the statutory duties confirmed on them. Such writ is issued
to perform the duties as provided by the state under the statute or forbear or restrain from
doing any specific act. The first case reported on the writ of mandamus was the Middleton
case in 1573 wherein a citizens franchise was restored. The writ of mandamus can be issued

10
(1969)2 SCC 262
11
AIR 1962 SC 1893
if the public authority vested with power abuses the power or acts mala fide to it. In
Halsburys Laws of England, it is mentioned that,
As a general rule the order will not be granted unless the party complained of has known
what it was required to do, so that he had the means of considering whether or not he should
comply, and it must be shown by evidence that there was a distinct demand of that which the
party seeking the mandamus desires to enforce and that that demand was met by a refusal.
Quo Warranto
Quo Warranto means by what warrant or authority. Quo Warranto writ is issued against the
person of public who occupies the public seat without any qualification for the appointment.
It is issued to restrain the authority or candidate from discharging the functions of public
office. In University of Mysore v. Govinda Rao
12
, the Supreme Court observed that the
procedure of quo Warranto confers the jurisdiction and authority on the judiciary to control
executive action in making the appointments to public offices against the relevant statutory
provisions; it also protects a citizen being deprived of public office to which he may have a
right.
Habeas Corpus
The Latin term Habeas Corpus means have the body. The incalculable value of habeas
corpus is that it enables the immediate determination of the right of the appellants freedom .
The writ of Habeas Corpus is a process for securing liberty to the party for illegal and
unjustifiable detention. It objects for providing a prompt and effective remedy against illegal
restraints. The writ of Habeas Corpus can be filled by any person on behalf of person
detained or by the detained person himself. It is a judicial order issued by Supreme Court or
High Court through which a person confined may secure his release. The writ of Habeas
Corpus can be filed by any person on behalf of the other person. In Icchu Devi v. Union of
India
13
, the Supreme Court held that in a case of writ of Habeas corpus there are no strict
observances of the rules of burden of proof. Even a post card by any pro bono publico is
satisfactory to galvanize the court into examining the legality of detention. In A.D.M.

12
1964 SCR (4) 576
13
(1980) 4 SCC 531
Jabalpur v. Shivakant Shukla
14
, it was observed that the writ of Habeas Corpus is a
process for securing the liberty of the subject by affording an effective means of immediate
relief from unlawful or unjustifiable detention whether in prison or private custody. By it the
High Court and the judges of that court at the instance of a subject aggrieved command the
production of that subject and inquire into the cause of his imprisonment. If there is no legal
justification for that detention, then the party is ordered to be released.
Role of writs in administrative actions
Now as far as the role of the writs is concerned, let us go by illustration over the cases on
discretion. Conferment of discretionary powers has been accepted as necessary phenomena of
modern administrative and constitutional machinery. Law making agency legislates the law
on any subject to serve the public interest and while making law, it has become indispensable
to provide for discretionary powers that are subject to judicial review. The rider is that the
Donnie of the discretionary power has to exercise the discretion in good faith and for the
purpose for which it is granted and subject to limitations prescribed under the Act. The
Courts have retained their jurisdiction to test the Statute on the ground of reasonableness.
Mostly, the courts review on two counts; firstly whether the statute is substantively valid
piece of legislation and, secondly whether the statute provides procedural safeguards. If these
two tests are not found, the law is declared ultra vires and void of Article 14 of the
Constitution.
Beside this, Courts control the discretionary powers of the executive government being
exercised after the statutes have come to exist. Once they come into existence, it becomes the
duty of the Executive Government to regulate the powers within limitations prescribed to
achieve the object of the Statute. The discretionary powers entrusted to the different
executives of the Government play substantial role in administrative decision making and
immediately the settled principles of administrative law trap the exercise of powers. If these
discretionary powers are not properly exercised, or there is abuse and misuse of powers by
the executives or they take into account irrelevant consideration for that they are not entitled
to take or simply misdirect them in applying the proper provision of law, the discretionary
exercise of powers is void. Judicial review is excluded when it is found that executives
maintain the standard of reasonableness in their decisions. Errors are often crept in either

14
(1976) 2 SCC 521
because they would maintain pure administrative spirit as opposed to judicial flavor or that
they influence their decisions by some irrelevant considerations or that sometimes, the
authorities may themselves misdirect in law or that they may not apply their mind to the facts
and circumstances of the cases. Besides, this aspect, they may act in derogation of
fundamental principles of natural justice by not conforming to the standard or reasons and
justice or those they do not just truly appreciate the existence or non existence of
circumstances that may entitle them to exercise the discretion.
The Executive have to reach their decisions by taking into account relevant considerations.
They should not refuse to consider relevant matter nor should they take into account
considerations that are wholly irrelevant or extraneous. They should not misdirect themselves
on a point of law. Only such a decision will be lawful. The courts have power to see that the
Executive acts lawfully. They cannot avoid scrutiny by courts by failing to give reasons. If
they give reasons and they are not good reasons, the court can direct them to reconsider the
matter in the light of relevant matters though the propriety adequacy or satisfactory character
of these reasons may not be open to judicial scrutiny. Even if the Executive considers it
inexpedient to exercise their powers they should state their reasons and there must be material
to show that they have considered all the relevant facts.
The role of writs is also sensibly laid down in a famous Padfields case
15
:..In England in
earlier days the Courts usually refused to interfere where the Government or the concerned
officer passed what was called a non-speaking order, that is, an order which on the face of it
did not specify the reasons for the orders. Where a speaking order was passed the Courts
proceeded to consider whether the reasons given for the order or decision were relevant
reasons. Where there was a non-speaking order they used to say that it was like the face of
the Sphinx in the sense that it was incurable and therefore hold that they could not consider
the question of the validity of the order. Even in England the Courts have travelled very far
since those days. They no longer find the face of the Sphinx inscrutable.
Application of the Writ of Certiorari
The writ of Certiorari is basically issued against the statutory bodies exercising judicial or
quasi judicial powers. Such writ is issued against the authorities namely the government and
the courts or other statutory bodies who have power to determine and decide the line between

15
(1968) 1 ALL ER 694
the parties. In deciding such issues if the decision making order is passed without any
authority or has passed the order in exercise of such authority or has committed an error of
law and facts the high court is empowered to correct such error of the lower court or
government authorities. Certiorari may apply when the administrative or executive authority
fails to observe their duty to act fairly with respect to the administrative functions. The writ
of Certiorari may also be issued against a subordinate tribunal even if the decision impugned
is pronounced. A leading case of Ryots of Garabandho v. Zamindar of Parlakimedi
16
,
was the first decision on the writ of Certiorari.
Application of the Writ of Mandamus
The writ of mandamus is ordered when the statutory authorities who entrusted with the duties
fail to discharge its obligatory duty. It may be applied when the government authorities
vested with absolute powers fail to perform their administrative and statutory duties. In
Ratlam Municipal Council v. Vardichand
17
, on account of the public nuisance created in
the area by the corporation in not maintaining the drainage system and the dirty water
stinking had clogged around which obviously created nuisance at the hands of municipality
for not discharging the duties under the act. As a result the residents of Ratlam municipality
moved the Sub-divisional magistrate under section 133 of Code of Criminal Procedure, 1973
for abatement of nuisance and the court issued the directions that, Judicial discretion when
facts for its exercise are present has a mandatory import. Therefore when the Sub-Divisional
Magistrate, Ratlam, has before him information and evidence which disclose the presence of
public nuisance, considers it lawful to remove such obstruction. This is a public duty implicit
in the public power to be exercised on behalf of the public and is pursuant to public
proceeding.
Lord Denning observed:
In my opinion every genuine complaint which is worthy of investigation by the committee of
investigation should be referred to that committee. The Minister is not at liberty to refuse it
on grounds which are arbitrary or capricious. Not because he has a personal antipathy to the
compliant or does not like his political views. Nor on any other irrelevant ground... It is said
that the decision of the Minister is administrative and not judicial. But that does not mean that

16
(1932) I.L.R. 56 Mad.
17
(1984) 4 SCC 162
he can do as he likes, regardless of right or wrong. Nor does it mean that the Courts are
powerless to correct him. Good administration requires that complaints should be
investigated and that grievance should be remedied. When parliament has set up machinery
for that very purpose, it is not for the Minister to brush it on one side. He should not refuse to
have a complaint investigated without good reason... But it is said that the Minister is not
bound to give any reason at all. And that, if he gives no reason, his refusal cannot be
questioned. So why does it matter if he gives bad reason? I do not agree. This is the only
remedy available to a person aggrieved Else why did it set up a committee of
investigation? Minister would at least have good reasons for refusal; and if asked, he
should give them. If he does not do so, the court may infer that he has no good reasons. If it
appears to the Court that the Minister has been, or must have been, influenced by extraneous
considerations which ought not to have influenced him or, conversely, has failed, or must
have failed, to take into account considerations which ought to have influenced him. The
court has power to interfere; it can issue a mandamus to compel him to consider the
complaint properly.
Application of the Writ of Prohibition
The writ of Prohibition is issued essentially against the government or its authorities when
they are not conferred with the power or jurisdiction to decide the dispute. The court by
virtue of this power restrains the authority to exercise such powers which are not given to the
authority.
Application of the Writ of Quo Warranto
The high Court would exercise the power of Quo Warranto against the public authority or
government who acts contrary to the provisions of the statute and restrains the authority or
public servant from usurping the public office on account of lack of qualification. It is a
means of asserting sovereign right. In Sonu Sampat v. Jalgaon Borough Municipality
18
,
If the appointment of an officer is illegal, everyday that he acts in that office, a fresh cause
of action arises and there can be therefore no question of delay in presenting a petition for
quo warranto in which his very, right to act in such a responsible post has been questioned.
Application of the Writ of Habeas Corpus

18
I.L.R 1958 Bom. 113
The writ of Habeas Corpus is a writ issued in order to protect the liberty and freedom which
is conceived to be very vital. It is issued against the wrongful detention or confinement
through the police authority. By virtue of this writ the police authorities or other such
statutory authorities are empowered to bring the custody of the person who has been
wrongfully detained by the court of law. In the case of State of Bihar v. Kameshwar
Singh
19
it was stated that, the writ of Habeas Corpus is in the nature of an order for calling
upon the person who has detained or arrested another person to produce the latter before the
court, in order to let court know on what ground he has been confined and to set him free if
there is no legal justification for the imprisonment. One of the telling ways in which the
violation of that right can reasonably be prevented and due compliance with the mandate of
article 21 secured, is to mulct its violators in the payment of monetary compensation.
Conclusion
The prerogative powers of writ jurisdiction conferred by the constitution for judicial review
of administrative action is undoubtedly discretionary and yet unbounded in its limits. The
discretion however should be exercised on sound legal principles. In this respect it is
important to emphasis that the absence of arbitrary power is the first essential of the rule of
law upon which the whole constitution system is based. In a system governed by rule of law
when discretion is conferred upon the executive authorities it must be based on clearly defied
limits. Thus the rule of law from this point of view means that the discretion or the decision
must be based on some principles and rules. In general the decision should be predictable and
citizens should know where he is. If a decision is taken not on the basis of any principle or
rules then such decision is arbitrary and is taken not in accordance with the rule of law.
The law has reached its finest moments stated Duglas, C.J. in United States v.
Wunderlich
20
when it has freed man from the shackles of unlimited discretion. The man
has suffered on account of absolute discretion. The decision should be guided by rule of law
and it should not be based on whims, fancy and humor.
The Constitution is the law of the laws and nobody is supreme. Even the judges of Supreme
Court are not above law and they are bound by the decisions which are the law of the land
declared by them under the writ petitions. Thus, the constitutional remedies provided under

19
AIR 1952 Pat 417
20
342 U.S. 98 (1951)
the constitution operate as a check and keeps the administration of government within the
bounds of law.




Private Law Review
Private law review refers to powers of ordinary courts of the land, exercised in accordance
with ordinary law of the land to control, administrative action. Private law review is exercised
through injunction. Declaratory action and suit for damages. This non constitutional mode of
judicial review of any administrative action n can be exercised by the civil and criminal
courts, tribunals, special courts like the one constituted under the scheduled castes, schedule
tribes (Prevention of Atrocities) Act, Consumer Courts and Environmental authorities, etc.
In countries like the USA where the administrative process has grown tremendously,
emphasis on writs as a strategy for the control of administrative acts is shifting in favor of
more speedy and flexible remedies like injunction and declaration. This demonstrates the
inherent virtue of private law review.
The instrumentalities of private law review, being ordinary remedies, are free from
technicalities of writ with regard to locus standi, nature of administrative authority and
action. Private law remedies are broad based when compared with writs insofar as these
allow production of evidence and examination of witnesses as a fundamental requirement for
a decision. Private law review is cheaper and easily available. However, one difficulty with
this kind of judicial review is the requirement of two months notice under section 80 of the
code of civil procedure before any suit can be filed against the government. This created a
difficulty where immediate injunctive relief was required. But after the amendment of section
80 of civil procedure Amendment Act, 1976, this difficulty ha been removed as courts have
now been authorized to waive the requirement of notice in suitable case.
a. Injunction
The jurisdiction of Indian court to issue injunction is statutory. Section 36 to 42 of the
Specific Relief Act,1963 govern the grant of injunctive relief.
Injunction may be defined as an ordinary judicial process that operates in personam by which
any person or authority is ordered to do or to refrain from doing a particular act which such
person or authority is obliged to do or to refrain from doing under any law .the remedy is
coercive but not rigid and can individual case.
The court in its proceeding for injunction can review all action: judicial, quasi judicial,
administrative, ministerial or discretionary.
Temporary injunction is granted as an interim measure on an
application by the plaintiff to preserve the status quo until the case is heard and decided. The
grant of temporary injunction is governed by order 39 of the Civil Procedure Code, 1908
Perpetual injunction is granted on the final determination of the case to prevent the
infringement of those rights to which the plaintiff is entitled permanently. Under section 38
of the specific relief act, perpetual injunction may be granted to prevent the breach of an
obligation existing in favour of the plaintiff either expressly or be necessary implication, or to
prevent arising from contract, or to prevent the invasion of the right to, or enjoyment of the
property
I njunction will not grant:
To restrain a person from instituting or prosecuting any judicial proceeding, civil or
criminal;
To restrain any person from petitioning to any legislative body;
To prevent the breach of a contract which cannot be specifically enforced,i.e., service
Contract

b. Declaration
Declaration action may be defined as a judicial remedy conclusively determines the right and
obligation of public and private person and authorities without addition of any coercive or
directory decree.
Conditions for the grant of declaratory relief
i. The person must be entitled to a legal character or to a right to an property- the
term legal character is not in frequent use in legal drafting, but if interpreted in its
wide connotation, may include every jural relationship of an individual which is
recognised by law.

ii. There must be some danger or detriment to such right or character.- there must be
some person or authority , public or private either interested in denying such character
or right or must have actually denied it.


iii. Plaintiff must seek further relief if he is entitled to it.- this place a restriction on the
power of the court to grant a mere declaration. in situation where the plaintiff is
entitled to consequently relief and does not claim it, the court will not grant
declaratory relief.
21

c. Suit for injuction
Whenever any person has been wronged by the action of an administrative authority, he can
file a suit for damage against such authority, he can file a suit for damage against such
authority. Such a suit is filed in the civil court of first instances and its procedure is regulated
by the Civil Procedure Code.
The requirement of two months noticed is mandatory under section 80 of the
amended Code before the filing the suit, unless it is waived by the court in special
circumstances.

d. Affirmative action for the enforcement of public duties
During the last few years, the supreme court of India has certainly developed a fine
jurisprudence of right mobilization. Affirmative action for the enforcement of public duties is
one of the areas where the genius of the Indian judiciary has been registered in a unique
manner. It is a fact that judicial redress can more readily be available for wrongful acts than
for wrongful omission of public bodies and the effectiveness of the judicial remedies is also
limited either by their intrinsic characteristics or by restrictive technical rules.
22





21
Qabool Singh v. Board of Revenue, AIR 1973 All 158
22
De Smith: JUDICIAL REVIEW ADMINISTRATIVE ACTION , 1980, P. 526
NON BINDING (ADIVORY) REVIEW
This kind of review of administrative action can be exercised by Human Right
Commission, Lokayukta (Ombudsman), and various other statutory commissions like
Women Commission, Child Commission, Minority Commission, Scheduled Caste and Tribes
Commission, etc. Jurisdiction of these bodies is advisory but not without any effect. Sanction
behind the advisory jurisdiction, over any administrative action, is public opinion which, in
any democratic society, is the real sanction.