JUDICIAL REVIEW OF

ADMINISTRATIVE ACTION

• Judicial Review is the power of the Supreme Court or High Court to examine an executive or legislative act and
to invalidate that act if it is contrary to constitutional principles. This power has been incorporated in the
Constitution itself and cannot be done away with since it is a basic feature. 

• 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.

• Thus, Judicial review’ may be defined as a “Court’s power to review the actions of others branches of
government, especially the Court’s power to invalidate legislative and executive actions as being
unconstitutional”. 
• In recent times, many administrative decisions taken by the Government are being struck down either on
avoidable grounds of illegality or procedural irregularity or some other grounds which could have been validly
averted.
• Judicial review is the basic feature of the Indian Constitution and therefore, cannot be abrogated even by an
amendment of the Constitution. It is incorporated in Articles 226 and 227 of the Constitution insofar as the High
Courts are concerned.
• In regard to the Supreme Court Articles 32 and 136 of the Constitution embody the principle of judicial review.
Article 32 is included in Part III as a fundamental right for enforcement of any of the fundamental rights
conferred under Part III.
• The doctrine reached its culmination under the Indian Constitution when the Supreme Court of India bestowed
on judicial review the widest ambit and amplitude in Keshvananda Bharti v. State of Kerala.
• In England, Chief Justice Coke stated that when an Act of Parliament was against common right or reason,
repugnant or impossible to perform, the Common Law would control it and adjudge such Act to be void.
• 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.
• It should also 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.
 Object Of Judicial Review-
• 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.

 
What are Administrative Actions?
• Administrative action is the residuary action which is neither legislative nor judicial. It is concerned with the
treatment of a particular situation and is devoid of generality. It has no procedural obligations of collecting
evidence and weighing argument. It is based on subjective satisfaction where decision is based on policy and
expediency. It does not decide a right though it may affect a right.
• However, it does not mean that the principles of natural justice can be ignored completely when the authority is
exercising “administrative powers”. Unless the statute provides otherwise, a minimum of the principles of
natural justice must always be observed depending on the fact situation of each case.
• In the case of A.K. Kraipak v. Union of India , the Court was of the view that in order to determine whether
the action of the administrative authority is quasi-judicial or administrative, one has to see the nature of power
conferred, to whom power is given, the framework within which power is conferred and the consequences.
• Administrative action may be statutory, having the force of law, or non- statutory, devoid of such legal force.
The bulk of the administrative action is statutory because a statute or the Constitution gives it a legal force but
in some cases it may be non-statutory, such as issuing directions to subordinates not having the force of law, but
its violation may be visited with disciplinary action.
GROUNDS OF JUDICIAL REVIEW-

Judicial review of any administrative action can be exercised on the following grounds-
a)   Jurisdictional Error
b)   Irrationality
c)   Procedural impropriety
d)   Proportionality
e)   Legitimate Expectation

These grounds of judicial review were developed by Lord Diplock in Council of Civil Service Union v. Minster
of Civil Service. Though these grounds of judicial review are not exhaustive and cannot be put in watertight
compartments yet these provide sufficient base for the courts to exercise their review jurisdiction over
administrative action in the interest of efficiency, fairness and accountability.
1. Jurisdictional Error
The term “jurisdiction” means “power to decide”. The jurisdiction of the administrative authority depends upon facts
the existence of which is necessary to the initiation of proceedings & without which the act of the Court is a nullity.
These are called “jurisdictional facts”. This ground of judicial review is based on the principle that administrative
authorities must correctly understand the law and it limits before any action is taken. Court may quash an administrative
action on the ground of ultra vires in following situations-

(a) Lack of Jurisdiction

It would be a case of “lack of jurisdiction” where the tribunal or authority has no jurisdiction at all to pass an order.
Court may review an administrative action on the ground that the authority exercised jurisdiction which did not belong
to it. This review power may be exercised inter alia on following grounds:
i) That the law under which administrative authority is constituted and exercising jurisdiction is itself unconstitutional.
ii) That the authority is not properly constituted as required by law.
iii) That the authority has wrongly decided a jurisdictional fact and thereby assumed jurisdiction which did not belong
to it.
(b) Excess of Jurisdiction-
This covers a situation wherein though authority initially had the jurisdiction but exceeded it and hence its actions
become illegal. This may happen under following situations:
i) Continue to exercise jurisdiction despite occurrence of an event ousting jurisdiction.
ii) Entertaining matters outside its jurisdiction.

(c) Abuse of Jurisdiction-

All administrative powers must be exercised fairly, in good faith for the purpose it is given, therefore, if powers are
abused it will be a ground of judicial review. In the following situations abuse of power may arise:
(i) Improper purpose
(ii) Error apparent on the face of the record
(iii) Non-consideration of relevant material
(iv) In bad faith
(v) Fettering discretion
2. Procedural Impropriety-
Failure to comply with procedures laid down by statute may invalidate a decision. Procedural Impropriety is to
encompass two areas:
(i) failure to observe rules laid down in statute; and
(ii) a failure to observe the basic common law rule of natural justice.
In Bradbury v Enfield London Borough Council , the Education Act 1944 provided that, if a local education
authority intends to establish new schools or cease to maintain existing schools, notice must be given to the minister,
following which, public notice must be given in order to allow interested parties to comment.  The Council breached
the requirement of public notice and the plaintiffs sought an injunction. The Council claimed that educational chaos
would occur if they were required to comply with the procedural requirements. That plea met with little sympathy in
court.
The essence of justice lies in a fair hearing. The rule against bias is strict: it is not necessary to show that actual bias
existed; the mere appearance or possibility of bias will suffice. The suspicion of bias must, however, be a reasonable
one.
3. Proportionality-
• Proportionality means that the administrative action should not be more drastic than it ought to be for obtaining
desired result. Proportionality is sometimes explained by the expression ‘taking a sledgehammer to crack a
nut’. Thus, this doctrine tries to balance means with ends. Proportionality shares space with ‘reasonableness’ and
courts while exercising power of review sees, ‘is it a course of action that could have been reasonably followed’.
• Courts in India have been following this doctrine for a long time but English Courts have started using this
doctrine in administrative law after the passing of the Human Rights Act, 1998. Thus if an action taken by the
authority is grossly disproportionate, the said decision is not immune from judicial scrutiny. The sentence has to
suit the offence & the offender. It should not be vindictive or unduly harsh.
• In Hind Construction Co. vs. Workmen, some workers remained absent from duty treating a particular day as
holiday. They were dismissed from service. The industrial tribunal set aside the action. This court held that the
absence could have been treated as leave without pay. The workmen might have been warned and fined. The
Court said that it was impossible to think that any reasonable employer would have imposed the extreme
punishment of dismissal on its entire permanent staff in this manner. The court explained that the punishment
imposed the workmen was not only severe but out of proportion.
• In Management K. Tea Estates vs. Mazdoor Sangh, the workmen of the tea estates, alleged to have
entered the estate armed with deadly weapons with a view to gherao the Manager & others in regard to their
demand for bonus, caused damage to property of the estate & wrongfully confined the Manager & others.
Punishment of dismissal of concerned workmen de hors the allegation of allegation of extortion was held to
be not disproportionate to the misconduct proved against them.
• The Supreme Court has always maintained that it would employ the doctrine of Proportionality to test the
validity of an administrative action only when the Fundamental Rights of the aggrieved person are
disproportionately violated by the administrative authority.
5. Legitimate Expectation-
• A legitimate expectation will arise in the mind of the complainant wherever he or she has been led to understand
by the words or actions of the decision maker that certain procedures will be followed in reaching a decision. A
Legitimate Expectation amounts to an expectation of receiving some benefit or privilege to which the individual
has no right.
• Legitimate Expectation means expectation having some reasonable basis. The doctrine of Legitimate Expectation
has evolved to give relief to the people when they are not able to justify their claims on the basis of law in the
strict sense of the term they had suffered civil consequences because their legitimate expectation has been
violated.
• Two considerations apply to legitimate expectations-
(a) first is where an individual or group has been led to believe that a certain procedure will apply.
(b) second is where an individual or group relies upon a policy or guidelines which have previously governed an
area of executive action.
In R.P. Singh vs. State of Bihar, the Supreme Court explained that the expression “established practice”
referred to a regular, consistent, predictable & certain conduct, process or activity of the decision-making
authority. The expectation should be legitimate i.e. logical, reasonable & valid. The doctrine of
legitimate expectation would apply in cases where the decision taken by the authority is found to be
arbitrary, unreasonable & not taken in public interest. Change in policy however, can defeat the
legitimate expectation. In such a case, even by the way of change of old policy, the Courts would not
intervene with the decision.
In Jatinder Kumar vs. State of Haryana, the Court held that the Government had a right to review the
decisions taken by the previous establishments & hence it could suspend the process of recruitment
started by previous Government, because of allegations of irregularities & this could not be challenged
on the ground of violation of legitimate expectation.
Remedies of Judicial Review-
There are five types of writs that are available for judicial review of administrative actions under Article 32
and Article of 226 of Constitution of India.
1. Habeas Corpus literally means ‘to have the body ’. Via this writ, the court can cause any person who has been
detained or imprisoned to be physically brought before the court. The court then examines the reason of his
detention and if there is no legal justification of his detention, he can be set free. Such a writ can be issued in
following example cases: When the person is detained and not produced before the magistrate within 24 hours
When the person is arrested without any violation of a law. When a person is arrested under a law which is
unconstitutional When detention is done to harm the person or is malafide. Thus, Habeas corpus writ is called
bulwark of individual liberty against arbitrary detention. A general rule of filing the petition is that a person whose
right has been infringed must file a petition. But Habeas corpus is an exception and anybody on behalf of the
detainee can file a petition. Habeas corpus writ is applicable to preventive detention also.
2. Mandamus means “we command”.  This writ is a command issued by court to a public official, public body,
corporation, inferior court, tribunal or government asking them to perform their duties which they have refused to
perform. Due to this, Mandamus is called a “wakening call” and it awakes the sleeping authorities to perform their
duty. Mandamus thus demands an activity and sets the authority in action.
Mandamus cannot be issued against the following:
1. a private individual or private body.
2. if the duty in question is discretionary and not mandatory.
3. against president or governors of state.
4. against a working chief justice.
5. to enforce some kind of private contract.

A petition for writ of mandamus can be filed by any person who seeks a legal duty to be performed by a person or
a body. Such a filing person must have real or special interest in the subject matter and must have legal right to do
so.
3.Prohibition- The writ of prohibition means that the Supreme Court and High Courts may prohibit the lower
courts such as special tribunals, magistrates, commissions, and other judiciary officers who are doing something
which exceeds to their jurisdiction or acting contrary to the rule of natural justice.
For example if a judicial officer has personal interest in a case, it may hamper the decision and the course of natural
justice.

4. Certiorari means to “certify”. It’s a writ that orders to move a suit from an inferior court to superior court. It is
issued by a higher court to a lower court or tribunal either to transfer a case pending with that to itself or squash its
order. This is generally done because superior court believes that either the inferior court had no jurisdiction or
committed an error of law. Thus, certiorari is a kind of curative writ.

5. Quo warranto means “by what warrant”? This writ is issued to enquire into legality of the claim of a person or
public office. It restrains the person or authority to act in an office which he / she is not entitled to; and thus stops
usurpation of public office by anyone. This writ is applicable to the public offices only and not to private offices.
 Limitations on Judicial Review-
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 provisions 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 failed 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.