Judicial Review of Administrative Actions in India
Origin of Judicial Review
The doctrine of judicial review has acquired different nuances during the course of its evolution in UK, USA, and India. Its origins can be traced to UK which has no written Constitution. It has become firmly established in USA with a written Constitution establishing a federal polity. However, 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 the casus célèbre Keshvanand Bharti v. State of Kerala . The very old case on judicial review in England in case Dr. Bonham’s 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. In the Historic case Marbury v. Madison the Supreme Court of America made it clears that Court had the power of judicial review, Chief Justice George Marshall observed:
“Certainly all those who have framed the written Constitution contemplate them as forming the fundamental and paramount law of the nations and theory of every such government must be that the legislature, repugnant to the Constitution is void”.
Meaning of Judicial Review
‘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”.
Broadly speaking, judicial review in India deals with these aspects:
I. Judicial Review of Legislative Actions
II. Judicial Review of Administrative Actions
III. Judicial Review of Judicial Actions
We are dealing with second aspects, namely Judicial Review of Administrative Actions.
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 case 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. Though by and large administrative action is discretionary and is based on subjective satisfaction, however, the administrative authority must act fairly, impartially and reasonable.
Grounds for Judicial Review of Administrative Actions
3. Procedural impropriety
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 . Moving in this direction, the apex Court in Sidheswar Sahakari Sakhar Karkhana Ltd. v. Union of India, was of the opinion that normally the Court should not interfere in policy matter which is within the purview of the government unless it is shown to be contrary to law or inconsistent with the provisions of the Constitution.
Therefore, it was held that grant of concession, exemption, incentive and rebate is a matter of policy with the government under the Central Excise Act, 1944, and hence, Court should not interfere unless found violative of law and Constitution. The Court was quick to add that this principle of judicial review is not a matter of exclusion of the power of judicial review but of judicial “self-restraint” . Before us there are various instances where serious administrative actions lapses in government department. First important case is coal scam in which the figure to be around 1,060,000 crore (US$192.92 billion).
It is called by the media as the Mother of all Scams . the Comptroller & Auditor General's draft report titled 'Performance Audit Of Coal Block Allocations' says the government has extended "undue benefits", totaling a mind-boggling Rs 10.67 lakh crore, to commercial entities by giving them 155 coal acreages without auction between 2004 and 2009. In 2005 the Expert Committee on Coal Sector Reforms provided recommendations on improving the allocation process, and in 2010 the Mines and Minerals (Development and Regulation) Act (MMDR Act), 1957 Amendment Bill was enacted, providing for coal blocks to be sold through a system of competitive bidding. Numbers of allegations were made on Congress and BJP leaders such as Subodh Kant Sahay, Tourism Minister in the UPA government, Congress MP, Naveen Jindal's, Ajay Sancheti's SMS Infrastructure Ltd.
He is a BJP Rajya Sabha MP and is believed to be in close relation with Nitin Gadkari. At the end of June 2012, Coal Ministry decided to form an Inter-Ministerial Group (IMG), to decide on either de-allocation or forfeiting the Bank Guarantees (BG) of the companies that did not develop allotted coal blocks. September 2012 Coalgate reaches Supreme Court of India Advocate M L Sharma filed a Public Interest Litigation (PIL) in the Supreme Court seeking to cancel the allotment of 194 coal blocks on grounds of arbitrariness, illegality, unconstitutionality and public interest. Defending the CAG, a Supreme Court bench of Justices R M Lodha and A R Dave dismissed the Solicitor General Rohinton Nariman’s objections that petition relies heavily on the CAG report by saying, the CAG is a "Constitutional authority" and that its report is "Not a piece of trash".
Moreover, the Court ordered the government to inform it of reasons for not following the 2004 policy of "competitive bidding" for coal block allocation. Another example is 2G Spectrum (Second Generation of Telecom, and Radio Waves,) case where same mistake was revised by Telecom Ministry of Government of India. 2G licenses issued to private telecom players at throwaway prices in 2008. These procedures were not followed, Rules changed after the game had begun , cut-off date for applications advanced by a week, licenses issued on a first-come-first-served basis, no proper auction process followed, no bids invited. DMK chief M Karunanidhi's daughter and MP Kanimozhi who has been named by the CBI as a co- conspirator with A Raja.
The Comptroller and Auditor General of India said the entire process of spectrum allocation was undertaken in an arbitrary manner. One more action of administrative misuse is regarding to slap the charge of sedition under Section 124A of Indian Penal Code 1860 on Binayak Sen and Cartoonist Aseem Trivedi. The controversy arose with the arrest of Binayak Sen a pediatrician by profession, public health specialist and an activist was at receiving end. On 24th December 2010, Additional Sessions Court and District Court Judge, Raipur found that Binayak Sen guilty of sedition for helping Maoists in their fight that lead to widespread protest in the country to save Binayak from the clutch of vested administrative authorities.
There is feeling among people of all walks of life, in the Democracy, everyone who is dissatisfied with the government has the right to create disaffection against it and wanted to oust the government at next general election 2014. In fact, it is the Constitutional right of every Citizen to expose the misdeeds of government and work towards throwing it out of power without doing any violence. The apex Court convinced on records placed by Defence Counsel of Binayak Sen that no sedition case made out against Sen.
In this view, Supreme Court granted bail by saying trial Court would impose certain conditions on bail. Mumbai police dropped sedition charges against Aseem Trivedi in view of widespread protest by people. Another instance of excessive use of administrative actions is that two girl posted their comments regarding questioning the shutdown due to demise of Shiv Sena Chief Bal Thackeray in Mumbai. Her comment “People like Thackeray are born and die daily and one should not observe a ‘bandh’ (city shutdown) for that,” Mumbai police arrest them on direction of Shiv Sena members, charged them of hurting religious sentiments, and Information of Technology Act 2000. But after few days due to pressure mounted by public in Country, police dropped all charge against these two girls. On such action state government woke up to undo the mistake taken by Mumbai police, suspends police officer and constable who charged them and shift district magistrate who heard their case by state government.
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.
Habeas Corpus 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.
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.
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.
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”.
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. (c) Finding of facts which no person would have reached to the conclusion.
Now we arrived at the conclusion of judicial review of administrative action is inherent in our Constitutional scheme which is based on rule of law and separation of powers. It is considered to be the basic features of our Constitution, which cannot be abrogated even by exercising the Constituent power of parliament. It is the most effective remedy available against the administrative excesses. Well it is positive sense among the masses that if the administration undertakes any work or acting under discretion power conferred upon it either by statutory rules or under the provisions of the Constitution of India. If it is failure to exercise discretion or abuse of discretion power to settle its score or gain any private profit due to this discretion power, then only option before the public is to go to judiciary under Article 32,136 or Article 226 of the Constitution of India. The main purpose of judicial review is to ensure that the laws enacted by the legislature conform to the rule of law. Judicial review has certain inherent limitations. It is more suited for adjudication of disputes than for performing administrative functions. It is for the executive to administer the law and function of judiciary is to ensure that government carries out its duty in accordance with the provision of the Constitution of India.
Manoj Bhushan LLM (NET)
Research Scholar, Department of Laws Panjab University Chandigarh ph no: 9463123257
The author can be reached at: Manoj.Bhushan@legalserviceindia.com