CONCEPT OF JUDICIAL REVIEW

Introduction

The ultimate aim of Administrative Law is to protect individual rights and to control
the powers of the administrative authorities. Because, if left uncontrolled it will result in
arbitrariness. At this point it becomes necessary to have some sort of control over the
administrative action and one such control is Judicial control of administrative action.
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. Judicial Review of
administrative action is a part of the broader concept Judicial Control and is ‘supervisory’
rather than ‘corrective’ in nature.1

The judiciary must take up a responsibility to check upon executive action for maintaining
rule of law and to protect individuals from unlawful actions of the Government.

Thus, Judicial Review in the context of administrative law means, the authority of court to
declare the acts of the executive to be void if is not in consonance with the law. Alongside, it
is a fundamental mechanism for keeping public authorities within due bounds and for
upholding rule of law.

Judicial Review- Meaning

The mechanism of involving the Courts for regulating the functioning of the
administration in several directions, is commonly known as judicial review. It is said to be “a
procedure by which a Court can pronounce on an administrative action by a public body.”2 It
may also be defined as a “Court’s power to review the actions of the other branches of the
Government, especially the Court’s power to invalidate legislative and executive actions as
being unconstitutional.”3

Judicial Review as the words imply, is not an appeal from a decision, but a review of the
manner in which the decision was made.4 The Apex Court in L. Chandra Kumar v Union
of India,5 explained Judicial Review as “the power of a Court to hold unconstitutional and
hence unenforceable, any act of the State, legislative or executive, that if it finds to be in
1
M. P. Jain & S. N. Jain, Principles of Administrative Law, (Wadhwa and Company; Nagpur) 2017, P.1779.
2
Concise Oxford English Dictionary, 2002, 765.
3
Black’s Law Dictionary, VIII, 864.
4
Chief Constable of North Wales Police v Evans, (1982) 3 All ER 141, 154.
5
AIR 1997 SC 1125.
conflict with the basic law, i.e., the Constitution.” It is intended to be exercised to prevent
arbitrariness or favoritism and to ensure that it is exercised in the large public interest and that
it is not exercised for any collateral purpose.6

Besides other matters, the more meaningful role of judicial review lies in controlling
discretionary powers of the administration. “Discretion” said Justice Coke in Rooke’s Case,7
is a science or understanding to discern between falsity and truth, between right and wrong,
between shadows and substance, between equality and colourable glosses and pretenses, and
not to do according to their wills and private affections.

Also, in a leading case of Sharp v Wakefield,8 Lord Halsbury stated that “discretion” means
when it is said that something is to be done within the discretion of the authorities that
something is to be done according to the rules of reason and justice and not according to
private opinion.

Lord Diplock9 said the very concept of administrative discretion involves a right to choose
between more than one possible cause of action on which there is room for reasonable people
to hold differing opinions as to which is to be preferred.

If complete freedom of action is given to the administration, it would lead to the exercise of
powers in an arbitrary manner seriously threatening individual liberty. Therefore, it is
necessary to control discretion to restrain it from being exercised arbitrarily. Judicial Review
thus aims to protect citizens from abuse or misuse of power by any branch of the State. 10 The
law relating to judicial review of administrative action is essentially judge-made and judge-
led. The judicial quest in administrative matters is thus to strike the just balance between the
administrative decision to decide matters as per government policy and the need of fairness.

Judicial Review under English Law

Dicey, who advocated the doctrine of rule of law, was opposed to conferment of discretionary
power on executive or administrative authorities, as he believed that wherever there is
discretion, there is room for arbitrariness.11

6
Siemons Public Corporation Pvt. Ltd v Union of India, AIR 2009 SC 1204.
7
(1598) 5 Co. Rep. 99b.
8
(1891) AC 173.
9
S.O.S. for Education and Science v Metropolitan Borough Council, Tameside, (1976) 3 All ER 665.
10
Minerva Mills Ltd v Union of India, AIR 1980 SC 1789.
11
C. K. Thakker, Administrative Law, (Eastern Book Company; Lucknow) 2012, P. 710.
But Wade observed that rule of law never contemplated total elimination of discretionary
power but demanded effective control over its exercise and every discretionary power has to
be exercised legally, properly and reasonably.12

England, which adopted Parliamentary Supremacy the law made by the Parliament cannot be
declared to be void by the Court. But the English Courts have always proceeded on the basis
that Parliament had conferred power on administrative authorities to be exercised lawfully,
reasonably and in accordance with well-established principles of law. Wherever it appeared
to the Court that there was an abuse of power by an administrative authority, it has intervened
by granting appropriate relief to the aggrieved party.

Judicial Review under American Law

The doctrine of Judicial Review has been accepted in the US as the doctrine of
Separation of Powers has been recognised by the US Constitution. Under the power of
judicial review, the Court can set aside any action taken or order passed by the administrative
authorities if is not in consonance with the law.

Though there has been no express provision for Judicial Review in the American
Constitution, the doctrine of Judicial Review has been originated and developed by the
American Supreme Court in a historic case William Marbury v James Madison,13 where
Chief Justice Marshall observed that the Constitution is Supreme and it is the duty of the
Courts to declare what the law is. It was in this case the US SC made it clear that it had the
power of Judicial Review.

Judicial Review- Scope

Due to the growth of the welfare philosophy, there has been the concentration of all
powers in the hands of administration which necessitated for conferment of vast discretionary
powers on the administration. The two important aspects of Administrative Law are- i)
Control mechanism over the administrative and ii) the remedies and reliefs available to a
person against it when his legal right is infringed by any of its actions. The Courts play much
more meaningful role in these matters, than does either the Legislature or the Administration
by itself.

12
Wade & Frosyth, Administrative Law, 2005.
13
2 L Ed 60: 5 US 137 (1803).
In order to control and review administrative action, the Courts have propounded and
developed various principles for what is required to develop a viable system of
Administrative Law maintaining a balance between personal rights and freedoms on the one
hand and administrative needs and exigencies of a developing Social Welfare State on the
other hand.14

Judicial Review is a highly complex and developing subject. It has its roots long back and its
scope and extent varies from case to case. It is considered to be the basic feature of the
Constitution. The Court in exercise of is power of judicial review would zealously guard the
human rights and fundamental rights and the citizens’ right of life and liberty as also many
non-statutory powers of governmental bodies.15

The scope of judicial review is limited to legality of decision-making process and not the
decision. In Council for Civil Services Union v Minister of Civil Services, 16 Lord Diplock
classified following heads upon which originally administrative action is subject to judicial
review:

a) Illegality;
b) Irrationality;
c) Procedural Impropriety; and
d) Proportionality.

In extending the scope of judicial review, the House of Lords stated that

“If the power has been exercised on a non-consideration or non-application of mind to

relevant factors, the exercise of power will be regarded as manifestly erroneous. If a
power (whether legislative or administrative) is exercised on the basis of facts which
do not exist and are patently erroneous, such exercise of power will stand vitiate.”

The limited scope of judicial review was clearly laid down by the Supreme Court in State of
U.P v Johri Mal,17 which are as follows:

1) Courts while exercising the power of judicial review, do not sit in appeal over the
decision of administrative bodies.
2) A petition for a judicial review would lie only on well-defined grounds.
14
Narender Kumar, Nature and Concepts of Administrative Law, (Allahabad Law Agency; Haryana) 2018,
P.472.
15
Supra 1.
16
(1984) 3 All ER 935.
17
(2004) 4 SCC 714.
 3) An order passed by an administrative authority exercising discretion vested in it,
cannot be interfered in judicial review unless it is shown that exercise of discretion
itself is perverse or illegal.
4) A mere wrong decision without anything more is not enough to attract the power of
judicial review; the supervisory jurisdiction conferred on a court is limited to seeing
that the Tribunals functions within the limits of its authority and that its decisions do
not occasion miscarriage of justice.
5) The courts cannot be called upon to undertake the government duties and functions.
The court shall not ordinarily interfere with a policy decision of the State. Social and
economic belief of a judge should not be invoked as a substitute for the judgment of
the legislative bodies.

While exercising the power of Judicial Review, the Court is concerned with the decision-
making process than the merit of decision. Unlike the Court of Appeal, the Court while
exercising power of judicial review, cannot substitute its own decision. Judicial Review is the
exercise of Court’s inherent power to determine whether an administrative action is lawful or
not and to award suitable relief. For exercise of this power, no statutory authority is
necessary.

Judicial Review is a feature of Parliamentary system, where the Government is accountable

to Parliament only in respect of matters of policy and efficiency and not for the legality of its
actions, which only the Courts can probe into.

Basis of the Court’s power to exercise Judicial Review lies in the rule of ultra vires, where if
the executive’s act is beyond the scope of power entrusted to it by the Constitution, it is said
to be ultra vires and thus void. Rule of ultra vires is developed on the basis of Article 14
under which arbitrary and unreasonable state action can declared to be void, for being
violative of the same.

Judicial Review is recognised as an inseparable part of the Constitution and it cannot be

excluded even by the Constitutional amendment. In Keshavananda Bharati v State of
Kerala,18 it was observed that Fundamental Right is crucially interconnected with the
protection of Judicial Review. By depriving the Courts of their review power, the
fundamental rights would become non-enforceable. It was in this case, Judicial Review was

18
AIR 1973 SC 1461.
recognised as a basic structure of the Constitution. Because without Judicial Review, the
written constitution will be a mere document with no binding force.

This has been re-asserted by the Supreme Court in L. Chandra Kumar v Union of India, 19
in the following words: “The jurisdiction conferred upon the High Court under Articles 226/
227 and upon the Supreme Court under Article 32 of the Constitution is the part of the
inviolable basic structure of the Constitution.”

In S. R. Bommai v Union of India,20 Judicial Review was held to be a fundamental and

essential feature of the Constitution, which if abrogated will consequently be affecting the
basic structure of the Constitution.

Judicial Review of Policy Decision

In exercise of Judicial Review, the Courts has minimal interference over Government
policy when the said policy was the outcome of deliberations of the technical experts in the
fields. The Supreme Court in Centre for Public Interest Litigation v Union of India, 21 saud
that:
“unless the policy framed is absolutely capricious, unreasonable and arbitrary and
based on mere ipso dixit of the executive authority or is invalid in Constitutional or statutory
mandate, Courts interference is not called.”

Stating that the scope of interference with the wisdom of the policy decision taken by the
executive was well settle, the Supreme Court in Balco Employees Union (Regd.) v Union of
India,22 held that wisdom and advisability of economic policies were ordinarily not amenable
to judicial review unless it could be demonstrated that the policy was contrary to any
statutory provision or the Constitution. Further, that, it was not for the Courts to consider
relative merits of different economic policies and consider whether a wiser or better one
could be evolved.

In Census Commissioner v R. Krishnamurthy, it has been ruled that the Court could not
issue mandamus to frame policy in a particular manner.

19
AIR 1997 SC 631.
20
1994 SCC (3) 1.
21
AIR 2016 SC 177.
22
AIR 2002 SC 350.
There is always a presumption that governmental action is reasonable and in public interest.
It is said that every activity of the Government has a public interest element in it and it must
be informed of reason and guided by public interest. If it fails to satisfy either test it would be
held unconstitutional.23

The basic requirement of Article 14 is fairness in action of the State and non-arbitrariness in
essence and substance, being the heartbeat of fair play, judicial interference with policy
decision is permissible on the following grounds:

a) If the decision is shown to be patently arbitrary, discriminatory or mala fide: or

b) That it is found to be unreasonable or violative of any provision of the Constitution or
any other statute; or
c) That it can be said to suffer from any legal infirmity in the sense of its being wholly
beyond the scope of regulation-making power; or
d) That it is demonstrably capricious or arbitrary and not informed by any reason.

Thus, the discretion to take a policy decision or to change a policy must be made fairly and
should not give impression that it is done arbitrarily or by any ulterior criteria, which would
not stand the test of Article 14. It has also been ruled in Bannari Amman Sugars Ltd v C.
T. O.,24 in case of change in the policy, Article 14 does not require that opportunity of
hearing must be afforded to affected persons. But the change must be made fairly, non-
arbitrarily, and should satisfy the test of reasonableness.

Grounds for Judicial Review

As a general rule, the Courts have limited power to interfere in administrative actions
in exercise of discretionary powers. At the same time, it cannot be left uncontrolled and
unrestricted. Judicial interference over administrative action is permissible on the grounds
which are grouped as follows:

a) Jurisdictional Error;
b) Unreasonableness;
c) Mala fide;
d) Mixed Considerations;
e) Doctrine of Proportionality; and
23
Shalendra Nath v State Bank of India, AIR 2007 Pat. 44.
24
2005 (1) SCC 625.
 f) Doctrine of Legitimate Expectation.

a) Jurisdictional Error

Jurisdiction in its broadest sense means ‘power’ and in its narrowest sense means
‘power to decide’ or ‘power to determine’. There are certain mistakes of fact which carry an
administrative authority outside its jurisdiction. Before the authority has power to act, there
must ‘jurisdictional fact’, existence of which is necessary to the initiation of proceedings and
without which the act is a nullity.”25

i) Lack of Jurisdiction

It would be a case lack of jurisdiction where the tribunal or authority has no

jurisdiction at all to pass an order.

In R. v Minister of Transport,26 the Minister had no power to revoke a license. The order of
the Minister revoking the license, was thus held to be passed without jurisdiction and hence
ultra vires.

ii) Excess of Jurisdiction

Where the tribunal has jurisdiction but exceeds its permissible limits, there would a
case of excess of jurisdiction.

In J. K. Chaudhuri v R. K. Dutta,27 the Governing body of a college dismissed its principal.

The University concerned directed the Governing body to reinstate him. The Court held that
the University had exceeded its jurisdiction and issued certiorari to quash the decision of the
University on the ground of excess of jurisdiction.

iii) Abuse or non-exercise of Jurisdiction

In State of U.P v Mohd. Nooh, 28 it was pointed out that it would be a case of error of
jurisdiction where the tribunal or the administrative body acts without jurisdiction or in
excess of its jurisdiction or it fails to exercise jurisdiction vested in it by law.

A tribunal or an authority would be said to have abused its jurisdiction when:

 It exercise its powers for improper purpose;

25
Halsbury’s Laws of England, Vol. 1, para 55 at 61.
26
(1934) 1 KB 277.
27
AIR 1958 SC 459.
28
AIR 1958 SC 86.
  It exercise its power on extraneous considerations; or
 It exercises its power in bad faith;
 It leaves out relevant considerations; or
 It does not exercise the power by itself but at the instance of an discretion of another
person.

In State of Mysore v P. R. Kulkarni, 29 it was observed that where power is used under the
apprehension that it was needed for effectuating purpose, which was really outside the law or
the proper scope of the power, it would be a case of exercise of power for an extraneous or
collateral purpose.

iv) Error of Law Apparent on the Face of the Record

In Shanmugam v S.R.V.S,30 the Court stated that there would be a case of ‘error of
law apparent on the face of record’ where the adjudicatory body disposes of a matter without
applying its mind to a material circumstance which has been brought to its notice or where
the authority ignores the relevant considerations and takes into account irrelevant
considerations, in reaching its decision.

In India, the Judicial Review provided under Articles 32, 136, 226 and 227 cannot be barred
even where the Constitution makes the action of the administration final. Union of India v J.
P. Mitter,31 the Court has held that inspite of Article 217(3) which makes the order of the
President final, in cases of the dispute as to the age of a Judge, the judicial review is not
excluded.

b) Unreasonableness

A general principle which has remained unchanged is that discretionary power

conferred on an administrative authority is required to be exercised reasonably, fairly and
justly.

Stating that judicial review of administrative action was a basic feature of the Constitution,
the Indian Supreme Court in Bandhua Mukti Morcha v Union of India, 32 observed that the
concept of reasonableness and non- arbitrariness pervaded the entire constitutional scheme
and is a golden thread which runs through the whole of the fabric of the Constitution.
29
AIR 1972 SC 2170.
30
AIR 1963 SC 1626.
31
AIR 1971 SC 1093.
32
AIR 1984 SC 802.
In the context of Articles 14 and 21 of the Constitution, the Supreme Court in Maneka
Gandhi v Union of India, 33 the Court ruled that the procedure contemplated by Article 21
must answer the test of reasonableness in order to be in conformity with Article 14, must be
just, fair and reasonable and not arbitrary, fanciful or oppression.

c) Mala fide

Mala fide commonly means “ill-will”, “dishonest intention” or “corrupt motive”. If an

authority vested with power has not exercised it properly, lawfully and in good faith, it would
be said to have been exercised mala fide.

In Express Newspapers (P.) Ltd v Union of India, 34 it was laid down that use of power for
an alien purpose other than the one for which the power is conferred is said to be mala fide
use of power.

d) Mixed Considerations

It is based partly on relevant and existent consideration and partly on irrelevant or

non-existent considerations.

In Dwarakadas v State of J& K, 35 it was explained that the Court must be satisfied that the
vague or irrelevant grounds, if excluded might reasonably have affected the subjective
satisfaction of the appropriate authority. Thus, if some grounds of comparatively unessential
character is defective then the order based on subjective satisfaction would not be invalid.

In Pyare Lal Sharma v Managing Director,36 the service of petitioner were terminated on 2
grounds: i) unauthorized absence from duty; and ii) taking part in action politics. The
Supreme Court upheld the termination and observed that the order can be supported on the
ground of remaining unauthorizedly absent from duty.

e) Doctrine of Proportionality

Among the principles evolved by the Courts for controlling the possible abuse of
discretionary powers by the administration, the doctrine of proportionality is the latest entrant
according to which if an action taken by an authority is grossly disproportionate, the said
decision is not immune from judicial scrutiny.

33
AIR 1978 SC 597.
34
AIR 1986 SC 874.
35
AIR 1957 SC 164.
36
AIR 1989 SC 1854.
In Hind Construction Co. v Workmen,37 some workers remained absent from duty treating
a particular day as holiday. They were dismissed from service. The Court held that the
absence could have been treated as leave without pay but the punishment imposed by
employer was extreme in nature which no reasonable employer would have imposed and was
out of proportion to the fault.

f) Doctrine of Legitimate Expectation

Legitimate Expectation simply means expectation having some reasonable basis. It

goes beyond right or interest and includes expectation which goes beyond an enforceable
legal right.

In the case of State of Kerala v K.G. Madhavan Pillai, a sanction was issued for the
respondents to open a new aided school and to upgrade the existing schools, however, an
Order was issued 15 days later to keep the previous sanction in abeyance. This Order was
challenged by the respondents in lieu of violation of principles of natural justice. The
Supreme Court ruled that the sanction had entitled the respondents with legitimate
expectation and the second order violated principles of natural justice.

Conclusion

An order of administration may be right or wrong but the Court while exercising its
power of judicial review must confine itself to the question of legality of that decision and not
to examine into question of law or question of fact as like Court of Appeal.

Thus, Judicial Review has obtained a Constitutional importance as it have played an

instrumental role in changing the behaviour of public authorities and also have improved the
quality of decisions and decision-making process by promoting compliance with law.

References

1. Narender Kumar, Nature and Concepts of Administrative Law (Allahabad Law

Agency, Haryana, 2nd ed. 2018).
2. Dr. Kailash Rai, Administrative Law (Allahabad Law Agency, Haryana, 9 th edn,
2013).
3. C. K. Thakker, Administrative Law (Eastern Book Company, Lucknow, 2nd edn,
2012).
37
AIR 1965 SC 917.
4. M. P. Jain & S. N. Jain, Principles of Administrative Law (Wadhwa and
Company, Nagpur, 7th edn, 2017).
5. Stanley A. de Smith, Judicial Review of Administrative Action.