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This Blog is written by Ramae Krisshna Reddy from Symbiosis Law School, Noida. Edited by O.S.S. Sarada Rasagnya.

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INTRODUCTION

With the growth of civilization, the subject of Judicial Review on Administrative action has been the fastest-growing part of our legal system. In India, administration law has recognized as a separate branch of legal discipline in the mid-20^th century. Administration actions play a key role and impact every aspect of an individual’s life and the Judicial review of administrative actions is more of enforcing constitutional principles over the administrative agencies while exercising their powers. As we are dealing with two aspects, namely Administrative Actions and Judicial Review, it is indispensable to know about what are Administrative Actions and Judicial Review.

Administrative actions:

Administrative actions are mainly concerned with the organ of Executive in the government. The main function of the Executive is to administer a law that was implemented by the legislation for the public benefit. Administrative action is a legal action concerning the conduct of a public administrative body. It is residuary or can be statutory action which is neither Judicial nor legislative. These are mainly based on polices and expediency. The source of administrative law is predominantly from statutes, customs, precedents, and statutory regulations.

Judicial review:

Judicial review is the power of courts to review statutes and governmental action to determine the validity of a rule, action, or law enforced by any agency of the state. It is considered the most appropriate method of inquiring into the legal competency of a public authority. Judicial review is considered as the heart of administrative law and the idea of judicial review is inherited from England and many other common law countries.

SIGNIFICANCE

In India, we are following the Rule of Law which means the constitution is the supreme law of the land and any law inconsistent is void. The present trend of judicial decisions is to widen the scope of judicial review of administrative action and legislative, executive, and judiciary comprehend the whole part of the government. Even though we have the principle of separation concept which clearly mentions three organs of the state namely, legislative, executive, and judiciary, the judiciary is vested with the power of the courts to review the actions of other organs (legislative and executive).

When the power of administrative authorities given by statutes was not exercised properly or not within the limits of the power given by statutes then courts have the power to review the administrative actions through writs in the nature of habeas corpus, mandamus, certiorari, prohibition, and quo warranto and control the administrative actions. A writ which is basically an order is only issued by the higher courts like High court and Supreme Court under Article 226 and Article 32 of the Indian constitution respectively.

In a nutshell, the five types of writs are explained hereunder,

• Habeas corpus: In Latin, habeas corpus means ‘to produce a body’. This writ is issued to produce a person before the court who has been detained or imprisoned and not produced before the magistrate within 24 hours and would be released if such detention found illegal. The main objective is to release the person who has been unlawfully detained.

• Mandamus: In Latin Mandamus refers ‘to command’. This writ is issued by the Supreme Court to enforce the fundamental right of a person when it is violated by some government order or act is alleged and High court issues this writ to direct a public officer to exercise his rights which are obliged to him and orders the government not to enforce any unconstitutional law.

• Certiorari: In Latin Certiorari refers ‘to inform’. In general, this writ is issued by which a higher court reviews a case tried in a lower court. It is a court process to seek judicial review of a decision of a lower court or government agency. This is subjected to some conditions.

• Prohibition: it refers ‘to forbid or to stop’. This writ is issued by the Supreme Court or High court when a lower court or a body tries to transgress the limits or power vested in it. It is mainly issued when a body exceeds its jurisdiction. After issuing this writ, proceedings in the lower court will remain standstill. It is popularly known as stay order.

• Quo-warranto: Quo warranto refers to ‘by what warrants’ or ‘what is your authority?’ It is a writ issued with a view to restraining a person from holding a public office to which he is not entitled to. This writ comes into play when a person has usurped a public office and the court directs him to stop in carrying out the activities.

Thus, Judicial review means a review of courts of administrative actions with a view to ensure their legality.

IMPACT

In Judicial review of administrative action, the courts merely enquire whether the administrative authority has acted according to the law or not. The impact of Judicial review of administrative actions can be seen as follows:

• The Court rejected that Law or any of its parts which is found to be unconstitutional or against the constitution.

• While deciding any case, the courts go back to the constitutional validity of Laws and rules.

• The Court reviews that the laws and rules of legislature and executives in cases that come before them in litigation cases.

The business of the courts is to ensure that administrative actions and decisions are taken according to the law when the aggrieved citizen who contests the legality of an administrative decision then the court would appear to be one of the remedies to litigate his claim.

In the implementation of Judicial review of administrative action, it can be classified as follows:

1.Reviews of Legislative Actions: This implies that the power to ensure that laws passed by the legislature are in compliance with the provisions of the Constitution.

2.Review of Administrative Actions: This is a tool for enforcing constitutional discipline over administrative agencies while exercising their powers.

3.Review of Judicial Decisions: This explains when a judge reviews the lawfulness of a decision or action made by the public body.

Being the guardian of the Fundamental Rights and the arbiter of constitutional conflicts between the state and union, the Supreme Court stands in a unique position where it is the powerful instrument of judicial review under the constitution. The power of judicial review of legislation has been granted to the judiciary both by the political theory and constitutional principles.

The other two important functions of Judiciary powers of administrative actions are

1) Mainly to legitimize government actions

2) Protection of constitution against any undue encroachment by the government.

Hence, the Judicial review constitutes an elementary topic in the administrative policy regime.

  

PROVISIONS

Under the constitution of India, the following are the germane provisions regarding judicial review of administrative authorities:

• Article 13– it provides for the judicial review of all legislation in India, past as well as future. This power has been conferred on the High courts and the Supreme courts of India which can declare a law unconstitutional if it is inconsistent with any of the provisions of part 3^rd of the constitution.

• Article 32-226– entrusts the roles of the protector and the guarantor of fundamental rights to the Supreme and High courts.

• Article 251 and 254– states that in the case of inconsistency between union and state laws, the state law shall be void.

• Article 246 (3)– ensures the state legislature’s exclusive powers on matters pertaining to the State List.

• Article 245– states that the powers of both Parliament and State legislatures are subject to the provisions of the constitution.

• Articles 131-136 – entrusts the court with the power to adjudicate disputes between individuals, between individuals and the state, between the states and the union; but the court may be required to interpret the provisions of the constitution and the interpretation given by the Supreme Court becomes the law honoured by all courts of the land.

 

CASE LAWS

The basic function of the courts is to adjudicate the disputes between opponents and the courts may be required to interpret the provisions of the constitution and the interpretation of laws.

The following are the cases based on Judicial review of administrative actions:

1) Romesh Thappar v. State of Madras,[1] Supreme Court again struck down the Madras Maintenance of Public Safety Act 1949, on the ground that unless a law restricting freedom of speech and expression is directed against undermining the security of the state or to overthrow it, such law cannot fall within the reservation of clause (2) of Article 19.

2) In Kesvananda Bharati’s [2] case, the Supreme Court has emphasized upon the importance of Judicial Review

“As long as some Fundamental Rights exist and are a part of the constitution, the power of judicial review has also to be exercised with a view to see that the guarantee afforded by these rights is not contravened…. Judicial Review has this become an integral part of our Constitutional system.”

3)Shankari Prasad v. Union of India,[3] the First Amendment was challenged on the ground that it abrogated the fundamental right. The argument was based on the fact that the law under Article 13 (3) shall include the constitutional amendment law. The Supreme Court rejected the contention and held that the word law in Article 13 must be taken to mean rules or regulations made in exercise of constitutional power and therefore A 13(3), did not affect amendments made under Article 13 (3).

4)Sajjan Singh v. State of Rajasthan, [4] again the validity of the constitution, 17th Amendment Act 1964 was in issue. The Court stuck to the position laid down in Shankari Prasad case and held that the constitutional amendments made under Art 368 fall outside the purview of judicial review by the courts.

5)Minnerva Mills Ltd v. Union of India,[5] the Supreme Court struck down clauses (4) and (5) of Article 368 inserted by the 42nd Amendment, on the ground that these clauses destroyed the essential feature of the basic structure of the constitution. Limited amending power is a basic structure of the constitution since these clauses removed all limitations on the amending power and thereby conferred an unlimited amending power, it is destructive of the basic feature of the constitution.

By considering all points, for an amendment to be valid, the primary thing is that it should not destroy the basic structure of the constitution.

ANALYSIS

After taking every point into consideration, the Indian parliament is not the Supreme under the Indian constitution. As there are divisions of powers between state and union, Parliament is competent enough to pass a law and Judiciary being the guardian of Fundamental Rights and the arbiter of constitutional conflicts, Supreme courts play a requisite role in exercising the power to review of legislative enactments both of state and parliament legislature.

In Jayantilal Amritalal v. F.N. Rana,[6] the Supreme Court of India has also observed that it cannot be assumed that the legislative functions are exclusively performed by the legislature, the executive functions by the executive and judiciary functions by the judiciary.

Thus, the courts in India are under a constitutional duty to interpret the constitution and declare the law as unconstitutional if it found to be contrary to any constitutional provision.

 

CONCLUSION

For many years, the question of the scope of judicial review and control of administrative agencies has caused much confusion. It is evident that Judicial review is concerned with reviewing not the merits of the decision. In today’s era Judiciary plays a key role in molding the society and Judicial Review is a weapon to the people to go against any action implemented by the government or any public authority if the right of the citizen has infringed. It scrutinizes and balances the fundamental arch of the system to provide an impartial and independent judiciary in society. With the right of public awareness in India, every major government action on Judicial review is of the trend of legal development in India. Thus, the institution of Judicial review has a vibrancy of its own and has been declared as the basic feature of the constitution.

REFERENCES

[1] Romesh Thappar v. State of Madras, AIR 1950 SC 124.

[2] Kesavananda Bharathi v.State of Kerala WP (C) 135 of 1970.

[3] Shankari Prasad v. Union of India, AIR 1951 SC 455 at Page 458.

[4] Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845.

[5] Minerva Mills Ltd v. Union of India, AIR 1980 SC 1789.

[6] Jayantilal Amritalal v. F. N. Rana 1964 AIR 648.