JUDICIAL REVIEW OF ADMINISTRATIVE ACTION

JUDICIAL REVIEW of ADMIISTRATIVE ACTION

ADMINISTRATIVE LAW DEALS WITH1. Powers and duties of administrative authorities. 2. Procedure followed by administrative authorities in exercising the powers and disharging and duties. 3. The remedies available to an aggrieved person when his rights are affected by any action of administrative authorities .
NOTE:Review means second examination of the matter.

EXECUTIVE or ADMINISTRATIVE ACTION(FUNCTIONS)

The Executive performs those functions which are not vested in the other two branches of the Government i.e. legislature and judiciary(True/False) The functions of the Administration may be divided into three broad categories:Quasi-Legislative; Quasi-judicial; & Purely Administrative

ADMINISTRATIVE ACTION
Simply speaking, it means act of an administrative authority. It is, however, a term of wider connotation. It is said that the administration is the meeting point of three kinds of governmental functions, namely legislative, judicial and executive. Classification of Administrative Action:(i) Quasi-legislative (ii) Quasi-Judicial (iii) Purely administrative

(I) Quasi-legislative Administrative Action (a) Rules etc. made by Central Government, State Government, Board of Revenue, I.G. of Police etc. (b) Rules, Regulations, Bye-laws, scheme etc. framed by authorities other than legislative come under this category. (c) All India Services (Conduct) Rules, 1968 and All India Services (Discipline and Appeal), 1969

(II)

Quasi-Judicial Administrative Action

Three criteria for determining when an action of an administrative authority becomes quasijudicial administrative action. They are:(i) The administrative agency should be vested with legal authority. (ii) The administrative agency should be competent to determine questions affecting the rights of the subjects. (iii) The administrative authority should be under a duty to act judicially.

Quasi-Judicial Function Differs from a Purely Judicial Function

A quasi-judicial authority has some of the trapping of a court, but not all of them; nevertheless there is an obligation to an act judicially. A lis inter partes is an essential charcteristics of a judicial function, but this may not be true of a quasi-judicial function. A court is bound by the rules of evidence and procedure while quasi-

 While a court is bound by precedents, a quasi-judicial authority is not. A court can not be judge in its own cause (except in a contempt case), while an administrative authority vested with quasi-judicial powers may be a party to the controversy but can still decide it.

Purely Administrative Functions: Ingredients

An administrative order is generally based on governmental policy. No legal obligation to adopt a judicial approach to the question to be decided, the the decisions are usually subjective rather than objective. Not bound by the rules of evidence and procedure. Can take a decision even in the absence of a statutory provision. Administrative functions may be delegated

 Administrative authority may not only consider the evidence adduced by the parties but may also use its discretion. Administrative order may be held to be invalid on the ground of unreasonableness.

QUASI-LEGISLATIVE FUNCTIONS INGREDIENTS

Order is legislative in character, it has to be published. Order is legislative in character, the court will not issue a writ of certiorari to quash it. Subordinate legislation cannot be held invalid for unreasonableness. Administrative delegated. powers can be sub-

There is no right to a notice and hearing. Rules of Natural Justice do not apply in

III. Purely Administrative Action Examples

(i) (ii) Maintenance of Public Order. Conduct of military operation.

(iii) Implementation of policy, plan and programme. (iv) Management of public properties and nationalised institutions. (v) Supervision of services, such as education, public health, transport etc. (vi) Passing of orders relating to preventive detention, externment and deportation.

(vii) Appointment, control and punishment of public servants. (viii)Grant of licence/permits and revocation thereof. (ix)Acquisitioning requisitioning of properties. and

(x) making of investigation into alleged conduct or act in order to take administrative action.

JUDICIAL REVIEW
The term Judicial Review consists of two words. They are review and Judicial. The key word is Review, which, used as noun, means looking over something again; judging again; reconsideration; reassessment; critical examination

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret the rule.....A law repugnant to the Constitution is void.

JUDICIAL REVIEW IN U.S.A.

The Judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States and treaties made or which shall be made under their authority (Article III Section 2)

138. Enlargement of the Jurisdiction of the Supreme Court

1. The Supreme Court shall have such further jurisdiction and powers with respect to any of the matters in the Union List as Parliament may by law confer. The Supreme Court shall have such further jurisdiction and powers with respect to any matter as the Government of India and the Government of any State may by special agreement confer, if Parliament by law provides for the exercise of such jurisdiction and powers by the Supreme Court

2.

139. Conferment on the Supreme Court of powers to issue certain writs Parliament may by law confer on the Supreme Court power to issue directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for any purposes other than those mentioned in clause (2) of Article 32.

140. Ancillary powers of Supreme Court

Parliament may by law make provisions for conferring upon the Supreme Court such supplemental powers not inconsistent with any of the provisions of this Constitution as may appear to be necessary or desirable for the purpose of enabling the Court more effectively to exercise the jurisdiction conferred upon it by or under this Constitution.

142. Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc. 1. The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.

2. Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.

145. Rules of Court, etc.

Subject to the provisions of any law made by Parliament, the Supreme Court may from time to time, with the approval of the President, make rules for regulating generally the practice and procedure of the Court including:(c) rules as to the proceedings in the Court for the enforcement of any of the rights conferred by Part III;

Our Constitution provides an artistic blending and an droit admixture of judicial and executive functions....Apart from the safety valves, checks and balances, at every stage where the power of President is abused or misused or violates any of the Constitutional safeguards, it is always subject to judicial review. The power of judicial review which has been conceded by the Constitution to the judiciary is the safest possible safeguard not only to ensure independence of judiciary but also to prevent it from the vagaries of the executives. In the Famous Judges Transfer Case of S.P. Gupta Vs. Union of India AIR 1982 SCC 149

JUDICIAL REVIEW OF PURELY ADMINISTRATIVE ACTION - ITS LEGAL NOTION

(a) It is the exercise of the courts power to determine whether the administrative action is lawful or not and to award suitable relief. (b) It is the mechanism for controlling the actions of the administration. (c) Harmonising the administrative discretion with the Rule of Law.

(d) Court can not go into the merits of the Administrative action. (e) It may examine the legality or otherwise of the administrative action. (f) It performs the role of reviewing forum and as such, it possesses limited powers. (g) It does not sit in appeal over the

POWER OF JUDICIAL REVIEWWHAT DOES THE COURT LOOK INTO

Whether a decision-making authority has exceeded its power? Whether the authority has committed an error of Law? Whether the authority has committed a breach of the principles of Natural Justice? Whether the authority has reached a decision which reasonable person would have reached? Whether the authority has abused its power?

SUPREME COURT OF INDIA ON JUDICIAL REVIEW Mahdayal Prem Chandra AIR 1958 SC 667 Vs. C.T.O.

The C.T.O. acted as per the dictation of his superior officer, while making assessment. Non- application of mind vitiates the order.

Dr. Ram Manohar Lohia Vs. State of Bihar AIR 1966 SC 704 - arrested under DIR held Public Safety and maintenance of Public Order not same as Law & Order. Harikrishna Sarma Vs. State of Punjab AIR 1966 SC 1081 Grant of Cinema licence - State government can not assume the functions of a licencing authority, even though it is an appellate authority.

A.K. Kraipak Vs. Union, AIR 1970 SC 150

One of the member of Selection Board was himself a candidate. held "Rule of Law pervades over the entire field of administration and every organ of State is regulated by rule of Law. The concept of Rule of Law would loose its vitality if the instrumentalities of State are not charged with the duty of discharging their functions in fair and just manner."

Union of India Vs. M.L. Kapoor & Others AIR 1974 87

Reasons have to given by the selecting authority while superceding an officer in promotion matters.

Hiranath Misra Vs. Principal, Rajendra Medical College, Ranchi AIR 1973 SC 1260
The principle of natural justice are flexible. It may differ in different circumstances.

Smt. Maneka Gandhi Vs. Union AIR 1978 SC 597

"Although there are no positive words in the statute that the party shall be heard yet the justice of common law will supply the omission of legislation". Thus, two vital things are required in an administrative action and these are:- Impartiality - Fairness which means that in all administrative proceedings, doctrine of natural justice 'more particularly "audi alteram partem" must be held applicable.

Allotment of Petrol Pumps and Shop etc. Capt. Satish Sarma, 1996 SCC 530 Sheila Kaul 1996 SCC 558 The case was filed by a common cause society on the basis of a news report.
found to be a clear abuse of public office by a pubic servant, while discharging discretionary powers. It is a criminal breach of trust. Article 14 does not permit the power to pick & choose. Both the Ex-ministers fined also.

Imposition of President's Rule (a) State of Rajasthan Vs. Union(1977) 3 SCC 592
Presidential proclamation is a Political decision. Didnt agree with U.S. Supreme Court that it can lay down Judicially discoverable and manageable standards It can examine only if the decision is based on extraneous considerations or legal malafides.

(b) Bommai's Case (AIR 1994 SC 1918)

(1) Presidential proclamation is justiciable. (2) Followed the ruling of Pakistan Supreme Court.

Guidelines issued, where Article 356 is not to be used: Where mal-administration is there but Ministry enjoys Assembly support. Where Ministry resigns or is out voted, Governor must explore possibility of an alternative government. Where in a general election to Lok Sabha, the Ruling Party in a State suffer massive defeat. Where there is a situation of internal disturbance and union has not taken steps under Article 355. Where no prior warning/opportunity is given

 Where power is used to sort out problems of ruling party. Charges of corruption - no ground. Financial exigencies - not a ground. Legal malafides

Recommendation of Imposition of President's Rule - Patna High Court

Sanyukta Nagarik Samiti (P.I.L.) Scam in JRY - Fraudulent payment of Rs. 10 crores under JRY.

GROUNDS FOR INTERFERENCE BY THE COURT

Decision maker has not correctly understood the law that regulates his decision making power. Decision is outrageous and has been in defiance or logic or of accepted moral standards Procedure followed while arriving at administrative decision was not fair and reasonable. Facts do not warrant the conclusion. Authority imposes a condition

 Authority acted without or in excess of the power. Action is malafide. Discretion on irrelevant grounds or on extraneous considerations. Relevant matters/facts/events have been left out of consideration. Violation of the Rules of Natural Justice. Colourable exercise of power. Acted at the dictation of his superior.

 Non-compliance with the mandatory procedural requirements. Administrative action is discriminatory. Violative of fundamental rights. Administrative action contrary to law. Manifestly unreasonable. Patently irrational order.