Meaning of Judicial Review
Judicial Review is a procedure by which the Courts supervise the exercise of the public power on the application of the individual or organization. In other words, Judicial Review is a process under which Executive or Legislative actions are subject to review by the Judiciary. A person who feels that his rights have been infringed due to the exercise of some powers by Government authority, such as a minister, the local council or statutory tribunal, is unlawful, may apply to the Court for Judicial Review of the decision and have it set aside. A Court may also make mandatory orders and issue injunctions to compel the authority to do its duty or to stop it from acting illegally.
Under the Indian Constitution, Article 13 provides for the Judicial Review of all legislations in India, past as well as future. This power has been conferred on the High Courts and the Supreme Court of India (Article 226 & Article 32 respectively) which can declare a law unconstitutional if it is inconsistent with any of the provisions of Part III of the Constitution.
In India, Judicial Review broadly deals with-
- Judicial Review of Legislative Actions,
- Judicial Review of Judicial Actions, and
- Judicial Review of Administrative Actions
In this article, we are going to deal with the third aspect, i.e. Judicial Review of Administrative Actions.
The Administrative Actions connotes the residue of Government functions that remain after the legislative and judicial functions are taken away. The legal actions which are concerned with the conduct of a public administrative body are the administrative actions. The acts done by any administrative authorities is known as an administrative action. There are basically four types of administrative actions, such as-
1. Administrative Legislative Action- The law making action of the administrative authority.
2. Administrative Adjudicatory Action, or Quasi Judicial Action- The actions in which the administrative authority plays the role of Judiciary, or decides the cases by resolving the disputes.
3. Purely Administrative Action- The rule applying actions of the administrative bodies.
4. Ministerial Action- An action which is performed in a proper prescribed manner in obedience to law.
Grounds of Judicial Review
In Council of Civil Services Union v. Minister of Civil Service, Lord Diplock laid down the grounds of judicial review as follows –
- Jurisdictional Error
- Procedural Impropriety
- Legitimate Expectation
These grounds are not exhaustive but have provided the base for the courts to exercise their jurisdiction.
1. Jurisdictional Error –
The term Jurisdiction means the power of the authority “to decide”. Ordinarily the administrative tribunal’s power to hear a legal controversy and issue orders regarding it, is known as Jurisdiction of that tribunal. Tribunals must not only have jurisdiction to try the suit but must also have the authority to pass the orders sought for. The jurisdiction of the tribunals must include the power to hear, decide and trial the concerned dispute. A jurisdictional error arises when an administrative body without having jurisdiction on the matter concerned passes the judgement. The Courts may reject any administrative actions that are ultra vires on the following grounds-
(a) Lack of Jurisdiction – When an administrative body for legal reasons does not have the power to order the parties of the case or over the subject matter of the case, it refers to lack of jurisdiction. The tribunals which lack jurisdiction can not hear the case or render any decision about it. A tribunal has jurisdiction over a matter only to the extent as defined by the Constitution and the Legislature of the State in which the tribunal is located.
(b) Excess of Jurisdiction – In this case initially the authority has the jurisdiction over a matter and properly proceeds within its jurisdiction but afterwards steps out of its jurisdiction in passing some orders or in doing some judicial actions. All the administrative actions must be performed fairly and bonafidely.
(c) Abuse of Jurisdiction – If the powers are abused, it becomes a ground for judicial review. Powers are abused when-
- the powers are used for the purpose it was not made or given.
- the authority acts dishonestly.
- When the decision maker totally ignores the relevant matter.
- When a decision has been passed only by considering the record, and without considering the evidence.
2. Irrationality –
Basically, the general principle is that the discretionary power of any administrative authority must be exercised reasonably. The administrative decision can be reviewed if it is in defiance of logic or accepted moral standards.
For the very first time in Associated Provincial Picture House v. Wednesbury, 1947, “Irrationality” was considered as the ground of Judicial Review, and later it was popularly named as Wednesbury Test. The Court laid down the following conditions to determine irrationality of administrative action-
(a) If the decision is so unreasonable that no reasonable person acting reasonably would have made it,
(b) If the authority has not considered the factors that are pertinent to be considered.
3. Procedural Impropriety-
When an administrative authority fails to act in accordance to the procedure, it refers to procedural impropriety. It is one of the vital grounds for challenging the decisions made by an administrative authority. The decision can be challenged where the authority has made a decision by overlooking or by failing to follow the procedure established by law (Ultra Vires).
In the cases of administrative actions, Doctrine of Proportionality is one of the grounds of Judicial Review. The Doctrine states that the means used by the authority to obtain any objective should not be more restrictive than that required to achieve it. For this ground to be considered the Courts generally examine the following things-
(a) Whether the relative merits of different objectives have been appropriately weighed and fairly balanced?
(b) Whether the matter under review was excessively restrictive or inflicted an unnecessary burden?
In India, the doctrine was adopted by the Supreme Court in the case Om Kumar v. Union of India, AIR 2000. In this case some officers of the DDA defrauded the depositors in collision with Skipper Construction Company, the Court felt prima facie that the punishments imposed on the officers were not proportional to the gravity of the misconduct and thus the punishments needed to be upgraded.
The Supreme Court always said that it would only employ this doctrine to test the validity of administrative action when the Fundamental Rights of any individual are disproportionately violated.
5. Legitimate Expectation-
The doctrine of Legitimate Expectation was first developed in English law as the ground of Judicial Review of Administrative actions to protect the procedural and substantive interests when an authority rescinds from a representation made to the person. The doctrine means that a person may have expectations to be treated in a way by the administration owing to the promises made or the past practices. The expectation must be reasonable. For the purpose of Judicial Review, the Court may consider-
- Where an individual or group are made to believe that certain procedure will apply,
- Where the individual or group relies on such belief, on particular law or policy.
Five kinds of Writs as Constitutional remedies empowers the High Courts and the Supreme Court of India ( Article 226 & Article 32 respectively) to declare a law unconstitutional if it is inconsistent with any of the provisions of Part III (Fundamental Rights) of the Constitution. The writ issuing power under Article 32 is only limited to the protection of Fundamental Rights, but under Article 226 the writ can be issued for any other purpose in addition to Fundamental Rights, example, a writ against any administrative authority. The writs are as follows-
1. Habeas Corpus- The meaning of this term is “to have a body”, or to produce a body. This is the most powerful and highly used remedy. If any person illegally detains another person, then such an individual can go for the writ of Habeas Corpus for the release of that person.
Under this writ, the Court issues an order to call upon the person who has illegally detained that other person, and to produce the detainee before the Court. The Court asks the detaining authority that on what basis the person was detained? If the base of the detention is unreasonable, the Court directly orders to release the detainee with immediate effect.
2. Mandamus- The meaning of this term is “We Command”, or to command the public official. A person can use this writ on any statutory, non-statutory, tribunals etc. and Command them to properly perform their public duty, i.e. this writ is used to command any public official to perform his duty, and to properly monitor the administration.
3. Certiorari- The meaning of this term is “to be certified”. Through this remedy, the Supreme Court or the High Court, can direct the Lower Authorities to submit their Records for Review. In the review, it is examined whether the judgements or decisions by the authorities are illegal or not. If the judgements are found to be illegal, the Courts can directly quash them and declare them unconstitutional.
4. Prohibition- The meaning of this term is “to forbid”. Prohibition is issued by the higher courts to the lower courts or administrative authorities to prevent them from exceeding their jurisdiction before passing the judgement or the decision. So this writ is used until lower courts or administrative authorities have pronounced the judgement, if the judgement has been pronounced then the aggrieved approach to the Court under Certiorari.
5. Quo Warranto- The meaning of this term is “by what authority”. Through this writ Courts can question any public officer, by what authority have you assumed this office. If the title of the person concerned is proved defective, then he has to vacate the office.
Judiciary plays an important role in exercising the control over the administration to ensure that the authorities function in the order they are required to function. In order to maintain checks on the functioning of these authorities, the judiciary plays a crucial role in a democratic nation. As per the Rule of Law, which is the cornerstone of the democratic nations, if any of the administrative action violates the basic principles of Rule of Law i.e., The Supremacy of Law, Equality before law and Predominance of Legal spirit, then that action can be challenged before the courts which can declare them unconstitutional. The ultimate purpose of Judicial Review is to examine whether the act is in conformity with the basic provisions of the Constitution or not.
This article has been written by Ayush Shukla, 2nd Year/ BBA LLB(Hons.) at Shri Ramswaroop Memorial University.