Judicial Review of Administrative Actions

An Overview
Introduction
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 case A.K. Kraipak v. Union of India, (AIR 1970 SC 150) 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.

Judicial Review of Administrative action is part of enforcing the constitutional discipline

over the administrative agencies while exercising their powers. It has origin in England which
was adopted in common law countries. India too inherited the idea of judicial review from
England. India had laid its structure on English prerogative with pattern which was issued by
the court of King's Bench with a view to exercise general superintendence over the due
observance of law by officials/ authorities while performing judicial or non-judicial
functions. Judicial Review is a great weapon through which arbitrary, unjust, harassing and
unconstitutional laws are checked. Judicial review is the cornerstone of constitutionalism,
which implies limited Government.

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.

Though by and large administrative action is discretionary and is based on subjective

satisfaction, however, the administrative authority must act fairly, impartially and reasonable.
In the process of judicial review of legislative and executive action, the courts pick out the
golden thread of reason and meaning in a law; they shape and mould the law, reveal its
fitness and nuances, smooth the angularities, strike down the bad law or illegal action, and
most essential to all, exert the strong moral forces of restraint in times when expediency is all.

Grounds for Judicial Review of Administrative Actions

1. Illegality
2. Irrationality
3. Procedural impropriety
4. Proportionality
Judicial review means the review made by the courts of administrative actions with a view to
ensure their legality. Administrative authorities are given powers by statutes and such powers
must be exercised within the limits of the power drawn by such statutes.{1}

It is the authority of the courts to declare void of the acts of the legislature and executive, if
administrative body are found in the violation of the provisions of the Constitution.{2} The
concept 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 {3} the Supreme Court made it clear that the courts had the
power of judicial review.

Chief Justice Marshall said, Certainly all those who have framed the written constitution
contemplate them as forming the fundamental and paramount law of the nations, and
the theory if every such Government must be that an act of legislature, repugnant to the
Constitution is void.

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.{4}

In review, reviewing authority does not go into the merit of the decision while in the case of
appeal the appellate authority can go into the merits of the decision. Therefore, judicial
review according to de Smith is inevitably sporadic and peripheral{5} in judicial review,
the courts undertake scrutiny of administrative action on the touchstone of the doctrine of
ultra vires.

The superior Supreme Court at the central level and the High Courts at the states level have
the power to review administrative actions through various writs in the nature of habeas
corpus, mandamus, certiorari, prohibition and quo warranto under Article 32 and 226 of the
Indian Constitution respectively. The writs which we follow in India have been borrowed
from England where they have a long history of development; consequently they have
gathered a number of technicalities. {6}

Indian courts usually follow the technicalities of English law. However, the constitutional
provisions of Indian Constitution are so broad in language that they indicate Indian judicial
bodies are not bound to follow the technicalities of English Law of various writs. But in
practice, the attitude of the Indian courts is by and large conditioned by the English approach.
When we look into the historical background of doctrine of ultra- vires or excess of
jurisdiction, historically, England's doctrine of the ultra-vires or excess of authority is the
foundation of judicial review. {7}

The tribunal's attempts to extend this narrow concept to the modern problems of the
administrative process have introduced certain technicalities and artificialities in the judicial
review law. The courts take the view that written authority is supervisory in nature and
cannot be equated with an appeal from the body concerned to the court.{8}

Thus, the ultra vires doctrine provides a half-way basis for judicial review between appeal
review and no review at all.{9} In an appeal, the appealing authority may not only quash the
administrative decision, but may also take into account the validity of the decision of the
appealing authority and substitute its own judgment in its place, whereas in the case of ultra
vires, the jurisdiction of the courts is restricted only to quash the administrative decision if it
exceeds the authorities power.

To refrain from discussing the merits of the case, or directing it to behave according to the
law and the courts. Therefore, the reach of an appeal on a point of law or fact is broader and
the jurisdiction of the court is greater. Therefore, the halfway analysis, the scope of which is
not always apparent, creates uncertainty in administrative action involving judicial
interference. Sometimes the courts may believe they are willing to intervene because they
feel strongly about the injustice of the case before them; sometimes they are not sure of the
injustice and they follow the decisions of the administration. {10}

Courts lack frankness in clearly admitting this which leads them to state their conclusion in
terms of artificial conceptualism and vague formulae. The consequence also manifests itself
in incoherent judgments and confusion in the judiciary. In general, the judicial review of
administrative action is conducted with a view to ensuring that administrative agencies act in
accordance with their assigned authority and natural justice standards.

Ultra vires is the primary reason an administrative decision is invalidated. Unlike the
American Constitution, the Constitution of India expressly allows for judicial review. Article
13(1) state that, to the degree of such inconsistency, all laws in effect in the territory of India
immediately before the start of the Constitution of India shall be null and void in so far as
they are compatible with the provisions of Part III on fundamental rights. Over the years,
however, the courts have developed various grounds for intervening, yet the law relating to
judicial review of administrative action through writs is complicated, involved and deficient.
{11} This point will become clear after discussing the grounds on which to issue them.

Jurisdictional Principle
Doctrine of ultra-vires:

An analysis of judicial power centres around the question of how far the courts can go in
reviewing the administrative authority's decisions or acts as distinct from those of appeal in
review proceedings. To seek an answer to this question, it is important to examine the topic in
the sense of the historical facts and power that influenced and shaped it; the atmosphere of
values and opinions that nurtured it; the scope of circumstances in which it must operate; and
the state of progress that it has achieved.

The law relating to judicial review of administrative action in India was traditionally derived
from common law, the prevailing aspect of which was the regulation by the ordinary court of
law of restrictions over the powers of the public authorities.

Therefore, the cases instituted before borough tribunals were removed from the earliest times
into the king's court at Westminster.{12} The superior courts used to maintain very tight
control over the peace judges, who exercised a wide range of duties, including highway
repairs, bridges, and other administrative matters. When, in 1888, most of the administrative
powers of the peace justices were transferred to local authorities, the courts maintained
similar control over the latter. Although maintaining power over the lower courts and
tribunals, the courts had a right to determine the former's proper jurisdiction and maintain it
within their jurisdiction.
In this review process, the concept of jurisdiction originated, otherwise known as ‘ultra-vires'
that marked off an area where the lower tribunals are absolute judges, but are not allowed to
cross the wall. The theory of jurisdiction embodies a dichotomy-those cases in which, within
its jurisdiction, a tribunal determines and those in which it rules outside its jurisdiction,
judicial power is only applicable in the latter type. The principle of jurisdiction that
determines the reviewability of an administrative action is often expressed as want or excess
jurisdiction; the underlying doctrine is referred to as ultra-vires.

The ultra-vires doctrine, as explained by Lord Selbourne L.C. In one case{13}, it should be
rational, and not unreasonably interpreted and enforced, and whatever may be fairly regarded
as incidental to, or consequential to, the items approved by the Legislature should not (unless
expressly prohibited) be deemed ultra-vires. An obvious example of the ultra-vires principle
was the ranking of omnibuses by the London Country Council with statutory authority to buy
and work trams. The House of Lords held that there was no jurisdiction for the London
Country Council to run omnibuses that was not incidental to tramway operation.{14}

Similarly, a local authority with authority to acquire land other than ‘park, garden or pleasure
ground' acts outside its jurisdiction to acquire land that is part of a park. {15} Therefore, the
likelihood of judicial review depends on whether an excess of authority can be said to occur.
The decision in Anisminic Ltd. v. Foreign Compensation Commission {16} that any mistake
of law (intra-vires or ultravires) may impact the jurisdiction has somewhat altered the
situation. Therefore, the distinction between jurisdictional errors and non-jurisdictional errors
was abandoned as far as errors of law (as distinct from error of fact) are concerned.

That was not clearly established though. In Pari man v. Harrow School's Keepers {17} and
Governors Lord Denning M.R. This claimed that there was no longer any distinction,
following Anisminic, between intra-vires errors and ultra-vires errors. Finally, the Privy
Council finally rejected, in S E Asia Fire Bricks v. Non-Metallic Union{18} , the view that
the distinction between intra-vires errors and ultra-vires errors had been abandoned.

Scope of The Doctrine

In theory, the principle of jurisdiction allows the courts merely to avoid acting in excess of
powers, but in reality, by interfering on grounds of unreason ability, bad faith, extraneous
consideration, unfairness, manifest injustice and fair play, etc., they have increasingly entered
the core of the subject matter. All those challenge heads were grouped together under the
ultra-vires singe principle. So, in administrative law, the doctrine of ultra-vires is the basic
doctrine. Control of administrative actions is considered as the foundation of judicial power.

Ultra-vires applies to actions that are outside or beyond the control of decision-making
bodies. So, in administrative law, the doctrine of ultra-vires is the basic doctrine. Control of
administrative actions is considered as the foundation of judicial power. Ultra-vires applies to
actions that are outside or beyond the control of decision-making bodies. To give an example,
in R. V. Hill University Visitors exparte, {19} Lord Brown Wilkinson has embraced the
conventional ultra-vires script.
When, outside the authority granted, the decision maker exercises his powers in a way that is
procedurally unconstitutional or unfair to Wednesbury, he acts ultravires his powers and is
therefore unlawful. The theory of ultravires is consistent with the principle of rule of law to
some degree, thus, the definition of ultravires is now viewed by many as an insufficient
excuse for judicial review.

The alternative view, therefore, is that the courts do not need to resort to speculation such as
the Parliament's purpose or the technicalities of jurisdictional evidence and error of law but
rather that the courts must interfere whenever an unconstitutional exercise of power has
occurred. As Dawn Oliver puts it, the question of judicial review has changed from the ultra-
vires law to a concern for the security of rights and regulation of powers.

Basis of The Doctrine of Ultra-Vires

Administrative action for judicial review, using concepts of intra-ultra vires and the rules of
natural justice ensure that the executive acts within the law. Following the granting of a
request for judicial review, it is for the court to determine whether the body in question has
acted intra-vires or ultra-vires (i.e., within or outside of its power). The main classes of action
may be pursued; those alleging infringement of statutory requirements and those alleging that
a decision was reached in an unreasonable manner or in disregard of natural justice rules.

Traditionally, these broad headings have been broken down into a variety of subheadings. By
way of illustration, a body can act ultra-vires if it uses its powers for the wrong purpose,{20}
or if it abuses its powers,{21} or if it adopts such a rigid policy that it does not exercise its
discretion with which it has been invested.{22} The law imposes requirements of
reasonableness on administrative bodies and failure to act in a reasonable manner cause an
individual to act ultra-vires, an entity can act ultra-vires if delegated powers are vested but
transferred to another.

Statute may require administrators to adopt specific procedures in the exercise of those
powers, if they do not do so, and the proceedings are judged to be ‘mandatory'(compulsory)
rather than directory (advisory) for an entity to act ultra-vires. If a public body that is under
an obligation to act fails to act at all court can order it to do so. In decision-making, too, the
laws of natural justice must be observed; where a person has a right or interest at stake due to
an administrative decision, he is entitled to fair treatment. {23}

The House of Lords rationalized all these grounds for review into three main categories:
illegality, irrationality, and procedural impropriety.{24} Lord Diplock noted today, One can
conveniently classify the grounds on which administrative action is subject to judicial
review under the three headings. First ground ‘illegality,' the second irrationality, and the
third procedural impropriety, which is not to imply that further progress may not occur on a
case-by-case basis. Over time, further grounds were added. Lord Diplock further elucidated
the concepts.

By illegality as a ground for judicial review, I mean that the decision-maker must correctly
understand the law which governs and gives effect to his decision-making powers. Whether
or not he had been, par excellence, a justifiable issue to be resolved, in case of disagreement,
by those people, the judges, by whom the State's judiciary is exercisable.
Through irrationality, I mean what can now be considered the unreasonableness of
Wednesbury {25} in short. This refers to a judgment so absurd in its violation of logic or
accepted moral standards that it could not have been made by any sensible person who had
applied his mind to the issue to be determined.

Whether a decision falls within this category is a question which judges should be well
equipped to answer through their training and experience. Instead of failing to follow basic
rules of natural justice or failing to act with procedural fairness towards the person affected
by the decision, I have described the third head as ‘procedural impropriety.' This is because,
under this heading, susceptibility to judicial review often entails failure by an administrative
tribunal to comply with the procedural rules specifically laid down in the statutory instrument
by which its authority is granted, even if such failure does not entail any violation of natural
justice.

Scope of The Doctrine of Utra- Vires In India

Historically, England's doctrine of the ultra-vires or excess of authority is the foundation of
judicial review. The ultravires doctrine is the fundamental tool for judicial supervision of
administrative authorities; as it has its implications through the length and breadth of
administrative law; it has been called the core rule of administrative law. {26} As in
England, so in India, the doctrine of ultra-vires has reached a high degree of complexity,
allowing the courts to investigate not only acts that are clearly outside of jurisdiction, but the
reasonableness, intentions and validity of considerations.

The courts have exercised restrictions on different aspects of the discretionary powers.
Procedural errors are also considered to be jurisdictional if the procedural provision is as
distinguished from the directory as mandatory. In India, administrative actions are subject to
judicial review in cases of unlawfulness, irrationality or procedural impropriety.{27} In
condition of A.P. v. Me Dowell & Co.,{28} while dealing with administrative actions and
judicial review, established that, in the case of administrative action, the scope of judicial
review was limited to three reasons:

1. Unreasonableness which is more appropriately called irrationality.

2. Unlawfulness.
3. Unfairness of action.

Consequently, judicial review of administrative action is only necessary when conduct suffers
from sin of arbitrariness, unreasonableness or injustice. If there are malafides, prejudice,
arbitrariness, bordering on perversity or such unreasonableness as no reasonable man can
conceive, it is appropriate to strike down an action. Therefore, the doctrine of ultra-vires is
not limited to cases of simple misuse of authority, but it also regulates abuse of power, as in
situations where something is done unjustifiably, for wrong reasons or through incorrect
procedures.

Therefore, the doctrine of ultra-vires is not limited to cases of simple misuse of authority, but
it also regulates abuse of power, as in situations where something is done unjustifiably, for
wrong reasons or through incorrect procedures. The ultra-vires doctrine is the principal
instrument of regulatory authority's judicial power. This covers all manner of regulatory acts
done in excess of authority. Also known as the principle of jurisdiction. However, in court of
judicial review, it is not sitting as an appeal court but merely reviewing the way the decision
was made.

In Tata Cellular v. Union of India, {29} the Supreme Court stipulated that judicial review is
concerned with reviewing not the merits of the decision but the decision-making process
itself. If an administrative decision is allowed to be reviewed, it will replace its own decision
which could be fallible by itself. The court's duty is to confine itself to the question of
legality. The court's duty is to confine itself to the issue of legality. The aim should be {30:

1. Whether the decision-making authority exceeds its power.

2. Committed an error of law.
3. Committed a breach of the rules of natural justice.
4. Reached a decision which no reasonable tribunal would have reached.
5. Abuse its power.

There is no desirability for untrammeled judicial review.{31} Arbitrariness based on

proportionality theory is still without foundation. There is also no basis for not justifying the
administrative action on merit. {32} Court must confine itself to the manner in which it made
a decision or issued an order. It is not about the merits of the decision at all. {33}

Present Scenario in India over Administrative Actions

Judicial review is central in dealing with the malignancy in the exercise of power. However,
in the changed circumstances of socio-economic development in the country the Court is
emphasizing ‘self restraint'. Unless the administrative action is violative of law or the
Constitution or is arbitrary or mala fide, Courts should not interfere in administrative
decisions.

Remedies of Judicial Review/ Public Interest Litigation

Here five types of writs are available for judicial review of administrative actions under
Article of 32, and Article of 226 of Constitution of India.

1) Habeas Corpus

The writ literally means “Have the body” this writ is issue to secure the release of person
from illegal detention or without legal justification, its deals with person right of freedom. In
simple words Court direct the person and even authority who has detained individual to bring
such person before Court so that Court may decide the validity, justification, jurisdiction of
such detention. It is to be filed by any person.

Ground for the issue of this writ:

This writ is basically issued by the court when the person detained is not presented in front of
the magistrate within 24 hours of his/her detention. Failure to do so would entitle the arrested
person to be released.
In Gopalan v. Government of India, the Supreme Court ruled that the earliest date with
reference to which the legality of detention may be examined is the date on which the
application for the same is made to the court.

Writ invoked against:

Writ of habeas corpus can be invoked not only against the state but also against any
individual who is holding any person in unlawful custody or detention. In such
circumstances, it is the duty of the police to make necessary efforts to see that the detention is
got released but, if despite such efforts if a person is not found, the police cannot be put under
undue pressure to do impossible.

2) Mandamus writ

It means that “To command the public authority” to perform its public duty in India. It is
discretionary remedy even as all five writs are discretionary remedy in nature. Court has full
power to refuse to entertain a writ petition. This writ is not lie on president, governor, state
legislatures, private individuals or any registered body.

Grounds for issuing this writ:

Mandamus can be issued when the Government denies to itself a jurisdiction which it
undoubtedly has under the law, or where an authority vested with a power improperly refuses
to exercise it. The function of mandamus is to keep the public authorities within the limits of
their jurisdiction while exercising public functions.

The writ can be issued against:

Mandamus can be issued to any kind of authority in respect of any type of function –
administrative, legislative, quasi-judicial, judicial Mandamus is used to enforce the
performance of public duties by public authorities. Mandamus is not issued when
Government is under no duty under the law.

3) Quo Warranto

It is ancient common law remedy. It is used against an intruder or usurper of public office.
Literally means “What is your authority”. Court directs the concerned person that by what
authority he holds the office. The Court may oust a person from the office if he finds that he
is not entitled to obtain such office.
Quo warranto prevents illegal usurpation of public office by an individual. The necessary
ingredients to be satisfied by the court before issuing a writ is that the office in question must
be public, created by the constitution or a law and the person holding the office is not legally
qualified to hold the office in clear infringements of provisions of the constitution or the law.

Writ issued against

It is the person against whom a writ of quo warranto is directed; who is required to show by
what authority the person is entitled to hold the office. While issuing such a writ, the High
court merely makes a public declaration of the illegality of the appointment and will not
consider other factors, which may be relevant for the issuance of a writ of certiorari.
4) Prohibition

Prohibition is an extraordinary prerogative writ of prevention; it seeks to prevent Courts,

Tribunals, Quasi-judicial authorities and officers from exceeding their jurisdiction. Main
object of this writ is to prevent the encroachment of jurisdiction. It is based upon “Prevention
is better than cure”.

Grounds for issuing this writ

A writ of prohibition is normally issued when inferior court or tribunal:

1. Proceeds to act without jurisdiction or in excess of jurisdiction

2. Proceeds to act in violation of rules of natural justice or
3. Proceeds to act under a law which is itself ultra vires or unconstitutional or
4. Proceeds to act in contravention of fundamental rights.

5) Certiorari

It deals with a method to bring the record of subordinate Court before the superior Court for
correction of jurisdiction or error of law committed by them. In simple word if any inferior
Court decided the case beyond its powers than Apex Court and High Courts correct the error
by issuing this writ. Earlier it was used for criminal matters but later on it was started to use
in civil cases too.

Grounds for this writ are:

a. Excess or failure to exercise the jurisdiction
b. Violation of natural justice rules such as right of notice and hearing
c. Violation of fundamental rights or statutory provisions of laws.
d. Finding of facts which no person would have reached to the conclusion.

Conclusion
Judicial review of the administrative action inherent in our constitutional scheme based on
the rule of law and separation of power. It is regarded as the basic features of our
Constitution, which cannot be abolished even by the exercise of parliamentary constitutive
power. It's the most effective remedy against administrative excesses available. It is a positive
feeling among the people that if the administration carries out any function or acts at the
discretion of the power given to it, either by legislative norms or in accordance with the
provisions of the Indian constitution.

Unless, because of that discretionary power, it is a failure to exercise discretion or misuse of

discretionary power to satisfy its gain or any private gain, the only choice before the public is
to go to court under Article 32, Article 136 or Article 226 of the Indian Constitution.

The main purpose of judicial regulation is to ensure compliance of the laws enacted by the
government with the rule of law. Judicial regulation has certain drawbacks inherent in this. It
is better suited to dispute resolution than to administrative functions. It is the executive who
administers the law and the judicial system function to ensure that the government fulfils its
duty in accordance with the provisions of India's constitution.