JUDICIAL REVIEW ON ADMINISTRATIVE
ACTION IN INDIAN LEGAL SYSTEM
By Deepanshu Gupta
The doctrine of judicial review has been originated
and developed by the American Supreme Court, although there is no express
provision in the American Constitution for the judicial review. In Marbury v.
Madison,the Supreme Court made it clear that it had the power of judicial
review. Chief Justice George Marshall said, “Certainly all those who have
framed the written Constitution contemplate them as forming the fundamental and
paramount law of the nations, and consequently, the theory of every such
Government must be that an act of the legislature, repugnant to the
Constitution is void”.
There is supremacy of
Constitution in U.S.A. and, therefore, in case of conflict between the
Constitution and the Acts passed by the legislature, the Courts follow the Constitution
and declare the acts to be unconstitutional and, therefore, void. The Courts
declare void the acts of the legislature and the executive, if they are found
in violation of the provisions of the Constitution.
A. Meaning
Judicial review is a great weapon in the hands of
judges. It comprises the power of a court to hold unconstitutional and
unenforceable any law or order based upon such law or any other action by a
public authority which is inconsistent or in conflict with the basic law of the
land.
Broadly speaking, judicial review in India deals
with three aspects:
(i) judicial
review of legislative action;
(ii) judicial
review of judicial decision; and
(iii) judicial
review of administrative action.
It is necessary to distinguish between ‘judicial
review’ and ‘judicial control’. The term judicial review has a restrictive
connotation as compared to the term judicial control. Judicial review is
‘supervisory’, rather than ‘corrective’, in nature. Judicial review is denoted
by the writ system which functions in India under Arts. 32 and 226 of the
Constitution. Judicial control, on the other hand, is a broader term. It
denotes a much broader concept and includes judicial review within itself.
Judicial control comprises of all methods through which a person can seek
relief against the Administration through the medium of the courts, such as,
appeal, writs, declaration, injunction, damages statutory remedies against the
Administration.
B. Object
The underlying object of judicial review is to
ensure that the authority does not abuse its power and the individual receives
just and fair treatment and not to ensure that the authority reaches a
conclusion which is correct in the eye of law.
As observed by the Supreme Court in Minerva Mills
Ltd. v. Union of India, the Constitution has created an independent judiciary
which is vested with the power of judicial review to determine the legality of
administrative action and the validity of legislation. It is the solemn duty of
the judiciary under the Constitution to keep different organs of the State
within the limits of the power conferred upon them by the Constitution by
exercising power of judicial review as sentinel on the quo vive. Thus, judicial
review aims to protect citizens from abuse or misuse of power by any branch of
the state.
C. Judicial Review, Appeal and Revision
It should be remembered that the object and scope of
judicial review of administrative action is different from that of appeal. The
object of judicial review of administrative action by the ordinary courts is to
keep the administrative authorities within the bounds of their powers under the
law. Appeal, on the other hand, means that the superior administrative tribunal
or court to whom appeal lies under the law, has the power to reconsider the decision
of the inferior tribunal on the merits. Appeal, however, is a creature of
statue and there is no right of appeal unless there is a specific statutory provision
creating that right.
The power of revision is usually placed at the hands
of the highest authority, e.g., the State Government, to correct any illegality
or irregularity in the proceedings before the inferior authorities. There are:
(a) Sometimes the statue expressly states that the power of revision may be
exercised suo motu as well as on the application of the party aggrieved; (b)
Sometimes the statue only authorizes the superior authority to use his power or
revision suo motu or of his own motion, e.g., original s. 33 of the Income-tax
Act, 1922. In such a case the party aggrieved has no right to relief and the
revisional authority has no duty to perform, on the application of such party;
(c) Difficulty of interpretation arises where neither the words ‘suo motu’, nor
‘on application’ are used by the statue.
D. Nature and Scope
Judicial review of administrative action is perhaps
the most important development in the field of public law in the second half of
this century. In India, the doctrine of judicial review is the basic feature of
Indian Constitution. Judicial review is the most potent weapon in the hands of
the judiciary for the maintenance of the rule of law. Judicial review is the
touchstone of the Constitution. The Supreme Court and High Courts are the
ultimate interpreters of the Constitution. It is, therefore, their duty to find
out the extent and limits of the power of coordinate branches, viz. executive
and legislature and to see that they do not transgress their limits. This is
indeed a delicate task assigned to the judiciary by the Constitution. Judicial
review is thus the touchstone and essence of the rule of law.
The power of judicial
review is an integral part of Indian Constitutional system and without it,
there will be no government laws and the rule of law would become a teasing
illusion and a promise of unreality. The judicial review, therefore, is a basic
and essential feature of the Constitution and it cannot be abrogated without
affecting the basic structure of the Constitution. In judicial review, the
court is not concerned with the merits or correctness of the decision, but with
the manner in which the decision is taken or order is made. A court of law is
not exercising appellate power and it cannot substitute its opinion for the
opinion of the authority deciding the matter.
It is a cardinal
principle of Indian Constitution that no one howsoever highly placed and no
authority lofty can claim to be the sole judge of its power under the
Constitution. The rule of law requires that the exercise power by the
legislature or buy the judiciary or by the government or by any other authority
must be conditioned by the Constitution. Judicial review is thus the touchstone
and repository of the supreme law of the land.In recent times, judicial review
of administrative action has become extensive and expansive. The traditional
limitations have vanished and the sphere of judicial scrutiny is being
expanded. Under the old theory, the courts used to exercise power only in cases
of absence or excess or abuse of power. As the State activities have become
pervasive and giant public corporations have come in existence, the stake of
public exchequer justifies larger public audit and judicial control.
The scope of judicial
review in India is not a wide as in USA. The American Supreme Court can declare
any law unconstitutional on the ground of its not being in “due process of
law”, but the Indian Supreme Court has no such power. In India, outside the
limitation imposed on the legislative powers, Parliament and State legislature
are supreme in their respective legislative fields and the Court has no
authority to question the wisdom or policy of the law duly made by the
appropriate legislature. Another reason is because the Indian Supreme Court has
consistently refused to declare legislative enactments invalid on the ground
that they violate the natural, social or political rights of citizens, unless
it could be shown that such injustice was expressly prohibited by the
Constitution.
E. Justiciability
Judicial review must be distinguished from
justiciability. The two concepts are nor synonymous. The power of judicial
review goes to the authority of the court and can be exercised by the court in
appropriate cases. Justiciability is not a legal concept with fixes contents,
nor is it susceptible of scientific verification. There is not and there cannot
be a uniform rule regarding scope and reach of judicial review applicable to
all cases. It varies from case to case depending upon subject-matter, nature of
right and other relevant factors.
The power of judicial
review relates to the jurisidcition of the court whereas justiciablity is
hedged by self-imposed judicial restraint. A court exercising judicial review
may refrain to exercise its power if it finds that the controversy raised
before it is not based on judicially discoverable and manageable standards.
Moreover, the area of justicibiality can be reduced or curtailed. Even when,
exercise of power is bad, the court in its discretion decline to grant relief
considering the facts and circumstances of the case.
F. Limitations
Judicial review has certain inherent limitations. It
is suited more for adjudication of disputes than for performing administrative
functions. It is for the executive to administer the law and the function of
the judiciary is to ensure that the Government carries out its duty in accordance
with the provision of the Constitution. Though the court is not expected to act
as a court of appeal, nevertheless, it can examine whether the “decision-making
process” was reasonable, rational, not arbitrary or not violative of Article 14
of the Constitution. 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.
Unless the order passed
by an administrative authority is unlawful or unconstitutional, power of
judicial review cannot be exercised. An order of administration may be right or
wrong. It is the administrator’s right to trial and error and so long as it is
bonafide and within the limits of the authority, no interference is called for.
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.
G. Conclusion
It is fundamental principle of law that every power
must be exercised within the four corners of law and within the legal limits.
Exercise of administrative power is not an exception to that basic rule. The
doctrines by which those limits are ascertained and enforced form the very
marrow of administrative law. Unfettered discretion cannot exist where the rule
of law reigns. Again, all power is capable of abuse, and that the power to
prevent the abuse is the acid test of effective judicial review. Under the
traditional theory, courts of law used to control existence and extend of
prerogative power but not the manner of exercise thereof. That position was,
however, considerably modified after the decision in Council of Civil Service
Unions v. Minister for Civil Service, wherein it was emphasized that the
reviewability of discretionary power must depend upon the subject-matter and
not upon its source. The extent and degree of judicial review and justifiable
area may vary from case to case.
“All power is, in
Madison’s Phrase ‘of an encroaching nature’. Judicial Power is not immune
against this human weakness. It also must be on guard against encroaching
beyond its proper bounds, and not the less so since the only restraint upon it
is self restraint.”
