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Judicial Review of Administrative Action in India

As seen throughout the evolution of humanity, power sings a song of corruption in man's ear, absolute power and control have oft led to tyranny, aggression and complete chaos. Instances of such kind can even be seen in today's modern society within countries such as North Korea, China and Africa. It is of no surprise that several attempts have been made starting from as early as the Roman Republic to raise limitations on the exercise of such power.

The easiest and most practical way to curb political absolution was to separate powers between different organs of the Government, thereby making these organs complement and control each other in a system of checks and balances. The French philosopher Montesquieu is commonly associated with the Doctrine of Separation of Powers and is one of the first to propound the idea of an executive, a legislature, and a judiciary.

He argued that each organ should only exercise its functions and overlap between the three must be avoided as far as possible. He also emphasized that the independence of the judiciary should be real and not merely imaginary; the judicial organ of a government was seen as the most important of the three being independent and unchecked. Such a separation was crucial to prevent any one of the branches from attaining supremacy, thus ensuring political liberty.

Judicial Review is such an aspect of judicial power that ensures and enforces constitutional discipline with regards to the exercise of power by administrative agencies. This power of review embodies the concept of separation of powers as an integral component of the rule of law, which is the most essential feature of Constitutions all over the world, especially in context of the Indian Constitution.

State actions have to be tested against the backdrop of the rule of law and it falls upon the Courts to perform this exercise. Although the judiciary has been vested with the power to review legislative, executive and administrative actions, the points of consideration in this article will revolve around the latter.

Judicial Review from an Indian perspective

Judicial review is premised around the idea that the Constitution being the supreme law in a country dictates the functions and limitations associated with a government. Thus, any action taken by the Government that is against, or in contravention of the principles embodied in the Constitution would be invalid. Administrative law is recognized as a separate legal discipline in India since the 20th century and plays an integral role in the daily life of an individual, and it may also be defined as the branch of public law which deals with the powers and organisation of quasi administrative and administrative agencies.

It concerns itself with rule application action, rule making action and adjudicatory action by prescribing specific rules and principles through which such actions are reached, keeping in mind individual freedom and liberty. An obvious need to ensure that such administrative agencies are effective in the service of individuals and remain within their bounds, therefore arises. In other words, in a democratic country like India, there must be a means to hold those who wield or exercise public power accountable for their conduct.

The founding blocks of the system of review of administrative action in India were inherited from Britain. The law surrounding the judicial review of administrative action has been developed case by case by the Indian judiciary creating a mechanism of control that would govern administrative law.

The current views regarding the same have been expressed by the Apex Court of India in the case of Indian Railway Construction Co. ... vs Ajay Kumar, [1] while stating that the present trend of judicial opinion is to restrict immunity from judicial review to a selected class of cases such as the deployment of troops, entering into treaties at an international level, national security etc. thereby expanding the scope of judicial review. In recent cases, Courts have signified their willingness to assert the power vested in them to scrutinize the factual basis on which discretionary powers may have been exercised.

The Indian Constitution establishes the doctrine of judicial review in several Articles such as 13, 32, 226, 227 etc. and Courts are meant to fulfill the function of sentinels on alert where matters relating to constitutionality are concerned.

The Supremacy of the Constitution and the importance of judicial review are expounded in various judgement of the Apex Court of India such as State of Rajasthan v Union of India [2] where it explains that it is the Courts that have been tasked with the delicate task of determining the limits and extent of powers assigned to different branches of the Government, and also if any actions of a branch exceeds their limits. Kesvananda Bharti's[3] case while emphasizing on the importance of judicial review established it as an integral part of the constitutional framework, which ensures that the guarantees afforded by fundamental rights are not hindered.

At the same time, it is also important to remember that the Constitution has been worded in a way such that there are certain inherent limitations, the makers did so with the intent of ensuring that the judiciary fulfills its function rather than taking over those of the other branches.

Judicial review has many times generated tensions and controversies between the different arms of the Government, and at times has even led to constitutional amendments in order to dilute the effect of judicial pronouncements that were not agreeable with the Government in power at the time.

The judiciary has often been criticised for overreaching and making laws as opposed to merely interpreting them. However, despite such claims it cannot be disputed that judicial review is still a core aspect of the Constitution and has even been said to form a part of the basic structure.[4]

Objective, Nature and Scope

No individual must be denied fair and just treatment, the same would not be possible if rampant abuse of powers by administrative authorities is left unchecked. The quest of the judiciary in administrative matters is to set right any unfair action by means of administrative review and to strike the ever-essential balance between discretion granted to administrative agencies as per policy and the need for fairness. The same has been stated in Union of India And Anr vs S.B. Vohra And Ors:

“The Court must, therefore, resist the temptation to draw the bounds too tightly, merely according to its own opinion. It must strive to apply an objective standard which leaves to the deciding authority the full range of choices which legislature is presumed to have intended. The decisions which are extravagant or capricious cannot be legitimate”.[5]

Several mechanisms of accountability exist in the Indian system such as election, impeachment and public opinion. Still, there was also a need to evolve a more specific and concentrated alternative to check excess of administrative bodies, judicial review serves this purpose and is regarded as the heart of administrative law in many countries all over the world including India.

In Minerva Mills Ltd. vs Union of India, [6] the Supreme Court makes it abundantly clear that the Constitution created a piece of independent machinery (the judiciary) vested with the power of judicial review to determine the legality of executive action while stating that this power is fundamental to the maintenance of democracy as a whole. [7]

Judicial review is the touchstone and essence of the rule of law [8], and the dimensions within which it operates must remain flexible.[9] It is of such importance that it cannot be abrogated without affecting the basic structure of the Constitution. [10]

An argument against the immense power granted to Courts is that it has weakened the other parts of the Government. But it is this very power and independence that ensures that it may act without fear or favour, without being biased by political ideology or economic theory. Without a free reign, the much-needed judicial activism would not be a possibility, the result being unbridled power in the hands of the executive and the legislature.

The birth of the Doctrine of Basic Structure is one such example of essential judicial activism and judicial review. Issues, where political questions were the subject matter, seemed to be outside the scope of judicial review, and the Courts themselves initially expressed the view.

However, this slowly changed over the years. Since it is the job of the judiciary to interpret the provisions of the Constitution, and the Constitution is the touchstone against which actions of the parliament need to be tested, these issues can therefore only be decided by the Courts. Such sentiments were expressed in various judgements such as A.K Roy, KK Aboo, and State of Rajasthan v UOI. [11]

Extent and Limitations

Looking through the pages of history books it can easily be seen that there has been considerable friction and a struggle for power between the different arms of the government and various issues such as amending the Constitution have constantly been in question.[12] Over the years the judiciary seems to have become more aware of its powers and has broken out its restraints, thereby attaining a desirable standard of independence.

Many judges have often pointed out that the relationship between the judiciary and the executive must not be “cosy” and a certain amount of tension is also desirable. It can be seen from various cases that now judicial review does not particularly suffer from any limitations except the restrains that judges might decide to put on themselves regarding what may be considered justified in a particular scenario. [13]

Ex- CJI Jt. K.G Balakrishnan, in his speeches emphasised on the fact that the extent of judicial review should not be curtailed, it functions as a means to guard the liberty of the people against the unwarranted executive or legislative action. He also stated the judiciary is equally amenable to criticism when the occasion demands it. However, it must be kept in mind that the Courts have been given great responsibility and illegitimate criticism can have a damning effect on the effectiveness with which Courts operate.

The scope and extent of review vary from case to case basis and depends heavily on the facts and circumstances, and the Court zealously guards human and fundamental rights as well as the citizens' rights to life and liberty as also several non-statutory powers of governmental bodies with regards their control over assets and property which may otherwise be expended on charitable causes such as building hospitals, roads, or even compensating victims of crime.[14]

Limitations on the scope of review have been handpicked from common law, certain general principles such as illegality, irrationality, impropriety were laid down in the case of Council of Civil Services Union vs Min. of Civil Services on the basis of which the powers of review may be exercised. [15] It can be seen that in recent times many High Courts have been going against the basic rule regarding review, and abusing their powers to substitute the decisions of authorities with their own effectively.[16]

There have also been instances where Courts have applied the above-mentioned principles in an inconsistent manner[17] as well as interfering with administrative authorities on their own consideration.[18] There have been multiple cases where the Supreme Court has had to overturn such decisions, reprimanding Courts to exercise the powers of review in an appropriate manner and staying within bounds of their powers. That being said, the Supreme Court is also not without faults and has failed to follow its own rules in many cases or has failed to interfere in cases where an actual need presented itself.

Such arbitrariness (grouping together the above-mentioned action on the part of different Courts) is a growing concern and presents a threat to the bedrock of administrative justice, and it undermines the legitimacy of review over administrative authorities. Since India follows precedents, such decisions are likely to impact future decisions as well. Finally, public faith in the Court system is impacted in a negative fashion, and this may lead to impotence of judicial review (which as discussed earlier is an essential aspect of democracy and the rule of law)[19] as a weapon designed to protect the masses from a transgression against their rights and liberty.

Courts as a generality should refrain from interfering in political and policy manner unless the situation demands it. Even in such a situation's interference can only be based on specific selected grounds. In P.U.C.L vs Union Of India [20], the Apex Court clearly states that the Court cannot examine the need for enacting specific legislation (POCA in present case) as the same is a matter of policy and the mere possibility of abuse cannot be used as ground to declare a Act unconstitutional.

Administrative actions are reviewed by Courts with a view to ensure that they are in accordance with legal principles. Reviews are, however, not to be understood as appeals. Appeals against a decision of authority would allow the appellate authority to go into the merits of such decision. Under Judicial Review, the Court does not have the authority to delve into the merits of the actions of the administration, going into the merits would be equivalent to substituting the decision of the authority by one of its own.

The function of the Court is to ensure that administrative authorities act in accordance with law and do not exceed the power that is vested in them. Such authorities are usually granted their powers under various statutes, and it is these statutes themselves which also provide for their limitations. Interference by Courts would be unwarranted as long the authority acts within the ambit of powers granted to it.

As stated in the case of State of Madhya Pradesh & Ors vs M/S M.V. Vyavsaya & Co:
“The power of the High Court under Article 226 of the Constitution is not akin to appellate power. It is a supervisory power. While exercising this power, the Court does not go into the merits of the decision taken by the authorities concerned. Still, it only ensures that the decision is arrived at in accordance with the procedure prescribed by law and in accordance with the principles of natural justice wherever applicable. Further, where there are disputed questions of fact, the High Court does not normally go into or adjudicate upon the disputed questions of fact.”[21]

The important question to be considered is how the decision has been arrived at by an authority as opposed to the review of the merits of the decision itself. Thus, the two questions to be determined by the reviewing court are; (1) Whether the authority in question has acted in an inordinate manner & (2) Whether such powers have been abused?

Even though the presumption of validity regarding administrative actions is less than that in the case of legislative action, Courts should exercise self-restraint when it comes to using its discretionary powers in relation to the discretion that has been granted to administrative bodies, parameters of judicial review should be well defined, and all efforts must be made to ensure that they are not exceeded.

It is after all the duty of the executive to administer the law, and Courts should only assume a supervisory rule, doing any more under the false pretence of preventing abuse would make the Court itself guilty of usurping power.[22] The administrators right to trial and error cannot be taken away as long as it has been exercised in a bona fide manner.

The extent of review should not be so broad that administrative agencies are turned into mere vehicles for the transfer of cases to Courts, the same would diminish the value of these agencies to a great extent and nullify their power to deliver decisions on matters they are empowered to handle.

Grounds for exercising the power of review

In the modern system of governance, many powers (both legislative and adjudicatory) have been outsourced to administrative authorities; thus judicial review has become an extremely important tool to curb the malignant use of these powers. The grounds on which administrative actions can be reviewed are not by any means exhaustive, however, they may be condensed into the following four (as a generality):
  1. Illegality
  2. Irrationality
  3. Procedural Fairness
  4. Proportionality

In addition to the above certain doctrines have evolved on the basis of Natural Justice, and the same has been used by Courts in various cases to take action against administrative action where a legitimate need has arisen. Although the article will not delve into the specifics regarding these doctrines, a few are mentioned below:

Rule Against Bias, Fair hearing, Doctrine of Promissory Estoppel, Doctrine of Legitimate Expectation, Doctrine of Proportionality, Doctrine of Public Accountability.

Conclusion
Expanding the horizon of review is often seen through a lens that may be considered enabling as well as suspicious. However, it cannot be denied that judicial review is the most appropriate and effectual method of ensuring that public authorities are legally competent.

The aspects that may be subject to judicial scrutiny relate to the competence of the authority, the extent of powers granted to said authority, fairness in the procedures followed and the nature of the discretionary power vested in the authority. Actions of these authorities may be questioned and invalidated by a Court having sufficient jurisdiction.

It is not practical, neither permissible for Courts to investigate into each and every administrative decision or action. Whenever an issue is raised, and a complainant comes forward, a prima facie case of maladministration must always be made out in the first instance itself.

Acts of governance need to be subjected to principles of justice, equity and fair play. The fine line of distinction between the different organs of the Government, including the judiciary, needs to be respected and maintained at all times. It is essential that the Courts continue to respect self-imposed restrictions and do not transgress into the powers of the other organs of the State. The power of judicial review is imperative to democracy in India and ensures that the will of the people is adequately represented.

End-Notes:
  1. (2003) 4 SCC 579
  2. AIR 1977 SC 1361-1413
  3. (1973) 4 SCC 225)
  4. Indira Gandhi v Raj Narain 1975 SCC (2) 159
  5. (2004) 2 SCC 150
  6. 1980 AIR 1789, 1981 SCR (1) 206
  7. Ibid
  8. R.K Jain vs UOI (1993) 4 SCC 119 , see also; Krishna Swami vs UOI (1992) 4 SCC 605
  9. S.R. Bommai vs UOI (1994) 3 SCC 1
  10. Shreelekha Vidyarathi vs State of UP AIR 1991 SC 537
  11. (1982) 1 SCC 271, (1997) 3 SCC 592, 1965 Ker 229 see also; S.R. Bommai vs UOI (1994) 3 SCC 1
  12. Golaknath v State of Punjab (1967) 2 SCR 762
  13. Kehar Singh, SR Bommai(supra), Shankari Prasad AIR (1951) SC 455
  14. (2004) 2 SCC 150
  15. (1985) AC 374
  16. Sachanlashkari vs Vijay Kumar Raghuvir Prasad Mehta & Anr. AIR 1999 SC 578 , HC upheld decision of tribunal at the same time increasing quantum of punishment.
  17. Kailash Nath Gupta & Anr vs Enquiry Officer, Allahabad Bank & Ors. AIR 2003 SC 1377, HC terminated services which not keeping principle of proportionality in mind.
  18. Allahabad Development Authority vs Saiba Khan & Ors 2006 SCALE (7) 313.
  19. J.P. Bansal vs State of Rajasthan (2003) 3 SC 154
  20. (2003) 10 SC 967
  21. AIR 1997 SC 993
  22. Tata Cellular Ltd. vs Union of India AIR 1996 SC 11, also see; AIR 1981 SC 344 

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