Author: Anushka Thakur, Student at Presidency University, Bangalore.
Laws actions and government operations may be declared unconstitutional by a court with judicial review authority. One of the checks and balances in the division of powers is the judiciary’s ability to supervise the legislative and executive branches when they exceed their authority. Since the doctrine can differentiate from every jurisdiction, the process and nature of judicial review can vary between and within countries. The laws in relation to judicial review of administrative action in India were derived from common law. The most prominent feature of this was the ordinary court of law’s enforcement of limitations on the powers of public authorities.
Whereas, Judicial Control of Administrative Action refers to the courts oversight of the government based on rules established by the courts. Administrative authorities’ power has grown significantly, resulting in repercussions in India’s socio-economic sector.
Administrative action is any action that isn’t legislative or judicial in nature. It is focused on the care of a specific case and lacks of generality. It has no legal responsibilities in terms of gathering facts or weighing arguments. It is founded on subjective satisfaction, with policy and expediency guiding the decision. It doesn’t mean that while the authority is exercising regulatory powers, the standards of natural justice can be totally disregarded. Unless the law specifies otherwise, a minimum of natural justice standards must always be followed, regardless of the facts of the case.
In the case of A.K. Kraipak v. Union of India, , the court said that; to ascertain if the action of the administrative authority is quasi-judicial or administrative, it has to see the nature of power conferred, who is granted authority, what mechanism is used to confer power, and what are the consequences.
Examination by the Courts of Administrative action is a component of imposing constitutional discipline over administrative agencies as they exercise their authority. It has its origins in England and has since spread to other common law countries. The concept of judicial review was also brought to India by England.
Judicial Review is a powerful tool for checking unreasonable, unequal, harassing, and unconstitutional rules. Constitutionalism, which means limited government, is built on judicial review. Judicial review has been recognized as a required and fundamental prerequisite for the development of an advanced society in order to protect citizens’ liberty and rights.
In India, the High Courts and the Supreme Court have a considerable amount of judicial review authority. The power of the court to review the acts of other branches of government, especially the power to declare invalid actions taken by the legislative and executive branches as “unconstitutional,” is known as judicial review.
In this paper, I look at one aspect of India’s judicial review amenability requirements. I examine the impact of Article 12 on the assessment of amenability to judicial review under Article 226 in more detail.
- Impact of excessive judicial control.
- The legal analysis of right to judicial review.
- To study, understand the implication and viability of Judicial Review and control of administrative action.
In the time frame given for the literature review, it was discovered that there has been no in-depth study on the subject in India as a whole due to its novelty, but several posts, remarks, and proposals have been written on similar aspects of the topic, all with an international bent. A very basic knowledge was provided about judicial review by all sites and similar thoughts were expressed in many articles.
- What does judicial review mean?
- What are the constitutional provisions to judicial review?
- What are the ways in which fundamental rights influence judicial review?
- What is the impact of Article 12 of Judicial Review under Article 226?
The subject of Judicial review of administrative action is not fully unraveled. Not many know about the constitutional provisions to it. In India, the judicial review system is set up in a unique way. The writs i.e., the remedies of judicial review, and the review jurisdictions of the Supreme Court of India and the High courts are actually inheritances from British rule.
SCOPE OF STUDY
The citizens exert power over the government in any democratic setup, as democracy is regarded as the “government of the people, by the people, and for the people.” It is a well-known fact that judicial review is the soul of a democratic society, since it protects the rule of law and maintains democracy.
The aim of this paper is to examine the nature of judicial review and judicial oversight of administrative actions. This paper also aims to analyse the judicial judgments of various Indian courts on this topic in order to achieve the stated goal. Based on the experience of other countries, this paper would also show the reasonableness and viability of applying judicial review. The paper aims to find out the fundamental rights which influence the judicial review and the impact Article 12 of Judicial Review has on Article 226. The article’s focus is limited to judicial review of government actions.
The overall research has been done by referring to various known and unknown websites. For this topic, I have used a huge variety of websites and referred to the Judicial Review and Control of Administrative action. I have used the doctrinal methodology of research. A doctrinal research project is one that has been conducted on a legal issue or propositions by way of analysing the existing statutory provisions and cases by applying the reasoning power. The paper will be focused on analysing and gathering data from a variety of books, journal articles, newspaper articles, and publications, as well as using an online database.
JUDICIAL REVIEW AND CONTROL OF ADMINISTRATIVE ACTION
Judicial Review is a powerful tool for ensuring that laws are not arbitrary, unfair, harassing, or unconstitutional. Constitutionalism, which means limited government, is built on judicial review. Administrative action is any action that isn’t legislative or judicial in nature. It is focused on the care of a specific case and lacks generality. It has no legal responsibilities in terms of gathering facts or weighing arguments. It does not determine a right, but it can have an impact on one. However, this does not mean that natural justice values can be totally disregarded while the authority is exercising “administrative powers.” Unless the law specifies otherwise, a minimum of natural justice standards must always be followed, regardless of the facts of the case.
Administrative activity may be statutory, i.e., having legal force, or non-statutory, i.e., not having legal force. The majority of administrative activity is statutory since it is based on a statute or the Constitution, but in certain situations, it may be non-statutory, such as providing non-binding directives to subordinates, which may result in disciplinary action. Despite the fact that administrative action is generally arbitrary and based on subjective satisfaction, the administrative authority must behave equally, impartially, and reasonably. The judicial review of administrative action by the courts, using rules established by the courts, is known as judicial control of administrative action.
The grounds for judicial review for administrative action are:
- Procedural impropriety
WHAT ARE THE CONSTITUTIONAL PROVISIONS TO JUDICIAL REVIEW?
In India, there are close ties between administrative and constitutional law. Judicial review is part of the Constitution’s “basic framework,” which cannot be changed except by amendment. The Constitution provides not only for the courts’ judicial review power, but also for some of the grounds for administrative action review. Violation of fundamental rights is a basis for judicial review under Section III of the Constitution, and the courts have occasionally ruled that some common law grounds of judicial review, such as natural justice, are part of fundamental rights.
The key clauses conferring writ authority on the SCI and the HCs, respectively, are Article 32 and Article 226 of the Constitution.
The right to take reasonable legal action in the Supreme Court to enforce the privileges granted by this Part is assured.
The Article refers to Part III of the Constitution, which contains the constitutional rights, as “rights conferred by this Part.”
Power of high courts to issue certain writs
(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories’ directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.
(2) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme court by clause (2) of Article 32.
HCs is not limited to the protection of fundamental rights, unlike the writ jurisdiction of the SCI under Article 32. The HCs may issue writs whenever there is an infringement of a legal right. High Courts can also issue directions, orders or writs other than the prerogative writs. Beyond the express constitutional provisions on judicial review, however, Indian administrative law is primarily judge made law, whose principles are to be discerned through a process of refinement of judicial opinion expressed in a large number of judicial pronouncements. Other than the ground of protecting fundamental rights, the scope and other grounds of judicial review are not explicit from these provisions but have to be inferred from judicial pronouncements.
WHAT ARE THE WAYS IN WHICH FUNDAMENTAL RIGHTS INFLUENCE JUDICIAL REVIEW?
There are two ways in which fundamental rights influence the scope of judicial review. The first type of influence pertains to the linkages between fundamental rights and grounds of judicial review.
1.Fundamental rights and grounds of reviewing administrative action
With the intertwining of the power of judicial review by courts with the objective of enforcement of fundamental rights, violation of a fundamental right is naturally one of the prominent grounds for judicial review. The violation of the fundamental right to equality under Article 14 has been a common ground to seek judicial review of administrative actions, both under Article 32 and Article 226.16 Notably, however, the courts have interpreted the right to equality under Article 14 to include certain common law grounds of judicial review thereby elevating those common law grounds to fundamental rights.
This phenomenon has been labelled “constitutionalization of administrative law” and has been criticised, particularly in the context of judicial review of legislative action. Constitutionalizing has often been criticised in the sense of judicial review of administrative action for causing certain anomalous effects in the implementation of natural justice principles. Other common law grounds of judicial review, such as substantive or procedural ultra vires, failure to recognise relevant evidence, or reasonable expectation, are less well articulated in relation to Article 14 or any other constitutional rights. Article 14 has, however, been interpreted as a general prohibition on arbitrary government intervention.
2. Fundamental rights and amenability criteria
The Indian judiciary has devised a set of guidelines for determining whether or not a person or activity is subject to judicial review. These criteria may be examined for their institutional aspect, that is, criteria that determine amenability based on the entity’s existence, and (ii) functional aspect, that is, criteria that determine amenability based on the nature of the purpose or duty carried out.
It provides an inclusive concept of “Government” for the purposes of Part III of the Constitution, which includes the Indian government and parliament, state governments and legislatures, local governments, and “other authorities” within India’s territory or under the jurisdiction of the Indian government. Article 12 is similar to the definition of “central public authorities” as described in Section 6 of the United Kingdom’s Human Rights Act, 1998 (HRA). Unlike Section 6 of the HRA, however, Article 12 makes no mention of hybrid private entities that may be considered part of the “State” only for activities of a public nature but are private for all other purposes. For several years, the word “other authorities” in Article 12 has been a source of judicial interpretation, mainly to determine whether any allegedly private person falls within the scope of “other authorities” and therefore is subject to rights-based judicial review.
Courts have, for example, interpreted Article 12 in writ petitions filed under Article 32 and Article 226. The following analysis is based on some of the most cited judicial review cases where the courts interpreted “other authorities”. Rajasthan State Electricity Board v Mohan Lal (referred to as Rajasthan Electricity hereafter), decided in 1967, is considered to be a seminal case on the interpretation of Article 12. It involved a petition under Article 226 alleging violation of Article 14. One of the issues was whether the entity in question (a body corporate constituted under the provisions of the Electricity (Supply) Act 1948) fell within the term “other authorities” under Article 12, and so was amenable to HC’s jurisdiction under Article 226.
It should be noted, however, that Article 12 is not always applicable because Article 226’s authority is not limited to the protection of Article 14 or other fundamental rights. The following aspects of the judgment demonstrate a broadening of the amenability criteria for rights-based review.
- Application of the “sovereign power” test
- Expansion of state action and constitutional limitation
- Nature of the corporation’s function
WHAT IS THE IMPACT OF ARTICLE 12 OF JUDICIAL REVIEW UNDER ARTICLE 226?
A.226 has no bearing on the SC’s authority under A.32. If the cause of action is in relation to the state, government, or person in question, the HC’s jurisdiction extends to the entire state of that HC, as well as territories outside the state.
In Anadi Mukta Sadguru v VR Rudani89 the SCI held that: The words ‘any person or authority’ used in Article 226 are … not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. 
The scope of “any person or authority” in Article 226 is broader than the scope of ‘other authorities’ in Article 12. Since fundamental rights are not relevant to non-rights-based review, there is no rationale for defining the amenability criteria, says SCI. The nature of the duty is the sole criterion for amenability to non-rights’ based review, SCI says. Article 12 continues to play a central role in determining amenability of non- rights-based reviews.
Administrative law is, in a way, based on judicial oversight of administrative actions. It’s a great way to find out if a government agency has legal authority. The fundamental characteristic of our Constitution is judicial review. Well, it is common sense among the masses that if the administration undertakes any function or acts under the discretionary power imposed on it by legislative rules or the provisions of the Indian Constitution, it is doing so in the best interests of the people. If there is a failure to exercise discretion or a misuse of discretion power to settle a score or obtain private advantage as a result of this discretion power, the public’s only recourse is to go to the judiciary under Article 32,136 or Article 226 of the Indian Constitution. Judicial review has become an important field of administrative law as administrative authorities’ powers have grown dramatically. The primary goal of judicial review is to protect citizens’ interests from regulatory authorities’ abuse of authority or unlawful acts.
 AIR 1970 SC 150
 Upendra Baxi, ‘The Myth and Reality of the Indian Administrative Law’ in IP Massey, Administrative Law
 5Article 14 reads ‘…The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.’
 Union of India v Tulsiram Patel (1985) 3 SCC 398.
 Maneka Gandhi v Union of India (1978) 1 SCC 248.
 1967 SCR (3) 377.
 Santanu Sabhapandit (2018): Article 12 and judicial review of administrative action: an analysis, Indian Law Review.
 Gulf Goans Hotels Company Limited v Union of India AIR 2015 SC 2032.
 Virendra Kumar Srivastava v U P Rajya Karmachari Kalyan Nigam (2005) 1 SCC 149
 (1989) 2 SCC 691.
 Santanu Sabhapandit (2018): Article 12 and judicial review of administrative action: an analysis, Indian Law Review.