Judicial Review of Administrative Action

By | June 23, 2018
administrative action

The system of judicial review of administrative action has been inherited from Britain. It is on this foundation that Indian the Indian Courts have built the superstructure of the control mechanism.

Introduction

One of the most significant parts guaranteed by our constitution is “Fundamental Rights”. It is embodied in Part III of our esteemed constitution. Guarantee civil rights to all Indians, and prevent the nation from encroaching on man or woman liberty whilst concurrently placing upon it an obligation to guard the citizens’ rights against encroachment by way of society. The purpose of the Fundamental Rights is to preserve individual liberty and democratic principles based on equality of all members of society. Dr. Ambedkar said that the responsibility of the legislature is not just to provide fundamental rights but also and rather, more importantly, to safeguard them. The obligation on the judiciary body and the governmental bodies to check that there is no violation of fundamental rights. The Supreme court of India and High courts have the power to issue different forms of the writ to ensure proper regulation of fundamental rights. The Fundamental Rights aren’t absolute and are a concern to affordable regulations as essential for the safety of public interest.

In the Kesavananda Bharati v. State of Kerala [1] case in 1973, the Supreme Court, overruling a previous selection of 1967, held that the Fundamental Rights can be amended, the problem to judicial evaluate in case such a change violated the primary shape of the constitution. The fundamental Rights may be improved, removed or otherwise altered through a constitutional modification, surpassed with the aid of a two-thirds majority of each house of Parliament. The imposition of a nation of emergency may additionally result in a transient suspension any of the Fundamental Rights, excluding Articles 20 and 21, by using the order of the President.

Constitutional Review

At the time of Independence which India got from British’s on 15th August 1947. One of the most significant task for the Indians was to frame its own Constitution to govern India. Constitutional Review was one of the most dilemmatic topics. Either legislative made laws should be put under judicial review or supreme body of judiciary “Supreme Court” 5-6 judges should judge a law either good or bad.

Dr. B. R. Ambedkar, the Chairman of the drafting committee, said,

We are placed in two difficult positions. One is to give the judiciary the authority to sit in judgment over the will of the legislature and to question the law made by the legislature on the ground that it is not good law, in consonance with fundamental principles. Is that a desirable principle? The second position is that the legislature ought to be trusted not to make bad laws. It is very difficult to come to any definite conclusion. There are dangers on both sides. For myself, I cannot altogether omit the possibility of a Legislature packed by party men making laws, which may abrogate or violate what we regard as certain fundamental principles affecting the life and liberty of an individual. At the same time, I do not see how five or six gentlemen sitting in the Federal or Supreme Court examining laws made by the Legislature and by dint of their own individual conscience or their bias or their prejudices be trusted to determine which law is good and which law is bad.”

Nehru opted for a restricted scope for judicial review, Ambedkar doubted about the wisdom of giving to Parliament freedom to lay down any procedure and any law restricting liberty. On the contrary, Ambedkar’s fight was not only against British Rule but also against the tyranny of the religious and political majority and social injustice that the pre-British indigenous regimes had perpetrated. Therefore, he was bound to be skeptical of legislative supremacy and wanted a counter-majoritarian safeguard such as judicial review.

As regards with the establishment of Supreme Court was considered with the power of judicial review of the constitution. An ad hoc committee was created of five members which bestowed the power of judicial review to the judiciary. The power of constitutional review was basically granted to judiciary body in order to safeguard the fundamental rights.

Various Forms of the writ –

  1. Writ of Habeas Corpus
  2. Writ of Quo Warranto
  3. Writ of Mandamus
  4. Writ of Certiorari
  5. Writ of Prohibition

Writ of Habeas Corpus

The Latin term habeas corpus means ‘you must have the body ‘and a writ for securing the liberty was called habeas corpus ad subjiciendum. This writ is issued by the court which directs the authority or the government body which has detained the person to present him in front of the court so that a proper justice could be imparted to that 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 [2] 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.

Writ of Quo Warranto

The term quo warranto means what is your authority. The writ of quo warranto is used to judicially control executive action in the matter of making appointments to public offices under relevant statutory provisions. When a certain person is holding a public office but he is not entitled to hold that office then the court can issue this writ. Under this writ that particular person will need to show under which statutory provision he is entitled to hold that office. If he fails in order to do so then the court can remove him/her from that office and can order to make that office vacant.

Grounds for issuing this writ

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.

Writ of Mandamus

This writ is basically issued by the court to direct the authority to do the work assigned to the particular office. Issued by the court to direct the authority to perform the duty imposed on it by law.

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.

Writ of Certiorari

A writ of certiorari has much in common with a writ of prohibition. The only difference between the two is, whereas a writ of prohibition is issued to prevent an inferior court or tribunal to go ahead with the trial of a case in which it has assumed excess of jurisdiction, a writ of certiorari is issued to quash the order passed by an inferior court or tribunal in excess of jurisdiction.

Writ of Prohibition

A writ of prohibition is issued by a superior court to an inferior court or tribunal to prevent it from exceeding its jurisdiction and to compel it to keep within the limits of its jurisdiction.

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.

Non-Constitutional Review

Under the non-constitutional review, the courts have the power to issue different types of order such as follows.

  1. Injunction
  2. Declaration
  3. Suit for Damages

Injunction

Meaning – An injunction is a court order which orders a company or character to forestall doing (known as a “prohibitory injunction”) or to do (an “obligatory injunction”) a selected act or factor. A party who breaches an injunction can be held in contempt of courtroom which in some instances can cause imprisonment.

Requirements

In maximum jurisdictions, an injunction will not be granted until the party seeking the injunction can prove that their purpose irreparable injury if the court does no longer supply the injunction. Irreparable harm manner that the harm inflicted on one party is so horrific that no financial or another sort of fee is a good enough reward for putting up with the instances. Similarly, the birthday party needs to display there may be no different treatment available. Moreover, the party ought to demonstrate that if the court balances the events’ interests, the balance will tilt in favor of the party looking for the injunction.

Types of injunction

There are special varieties of injunctions: a preliminary injunction, a brief restraining order, and an everlasting injunction.

A “preliminary injunction” is one which is given to a party prior to an ordeal. Considering the fact that a full trial has no longer but occurred, the courts are commonly reluctant to issue this type of injunction unless its miles virtually important and tremendous damage may also occur without the preliminary injunction.

Every other sort of injunction is called the “Temporary restraining order”. This form of the injunction could be very constrained in time and scope. The reason for the transient restraining order is to offer the court time to study the matter with a view to determine whether or not to grant an initial injunction.

Then again, a “Permanent injunction” is one granted after the trial regarding the matter. An everlasting injunction can be issued after a preliminary injunction or temporary restraining order. If a permanent injunction is granted, it means that the party must both prevent acting and start appearing in a positive manner completely.

Declaration

The declaration is a type of court notice via which the court declares or orders something. A declaration is a form of legal notice. A declaration is a form of non-constitutional review via which the court has the power to declare something as valid or invalid. If some law is inconsistent with the established fundamental rights then the court has the power to declare it as invalid. So basically declaration is a legal notice which determines what is valid and what is invalid.

Suit for Damages

Meaning
  • In the event of f breach of contract; the aggrieved party besides rescinding the contract can claim for damages.
  • Damages are monetary compensation allowed for loss suffered by the aggrieved party due to the breach of contract.
  • The object of the court in awarding damages for breach is that the aggrieved party may be put in the financial position which would have existed had there been no breach of contract.
  • The law does not punish a party because he has broken a contract but f, by reason of his wrongful act, the other party has suffered any pecuniary (monetary) loss, the court will compel the party in breach to compensate the loss by paying damages to the other party.
Case law – Hadley v. Baxendale Case [3]

Facts— H’s mill was stopped due to the breakdown of a shaft. He delivered the shaft to B, a common carrier, to be taken to a manufacturer to copy it and make a new one. H had not made it known to B that delay would result in a loss of profits. By some neglect on the part of B, the delivery of the shaft was delayed in transit beyond a reasonable time.

Held – B was not liable for loss of profits during the period of delay as the circumstances communicated to B did not show that a delay in the delivery of shaft would entail loss of profits to the mill.

TYPES OF DAMAGES

In case of the breach of contract following different types of damages can be awarded to the aggrieved party. They are

  1. Ordinary Damages – Ordinary damages are. Those which naturally arise in the usual course of things from such breach. The measure of ordinary damages is the difference between the contract price and the market price on the date of the breach
  2. Special Damages – When there is certain special or extraordinary circumstances present and their existence is communicated to the promisor, the non-performance of the promise entitles the promisee to not only the ordinary damages but also special damages that may result therefrom.
  3. Exemplary or Punitive or Vindictive Damages – They are not proportionate to the actual pecuniary loss sustained by the aggrieved party but are inflicted by way of punishment.
  4. Nominal Damages – Nominal damages are awarded in case of breach of contract where there is only a technical violation of the legal right, but no substantial loss is caused thereby. The damages granted in such cases are called nominal because they are very small, say, a rupee.
  5. Damages for Deterioration Caused by Delay – In the case of deterioration caused to goods by delay, damages can be recovered from carrier even without notice.
  6. Damages for Inconvenience and Discomfort – When a party has suffered physical discomfort and inconvenience as a result of breach of contract, that party can move a suit for claiming compensation.
  7. Liquidated Damages and Penalty – Some time, in order to avoid delay in the assessment and payment of damages, at the time of formation of contract, the parties to a contract mutually agree to stipulate or specify sum, which will become payable by the party guilty of breach.
  8. Stipulations for Interest – A stipulation for payment of interest in case of default is not in the nature of a penalty, if the interest is reasonable.

Article by- Shubhendu Shekhar

National Law University, Jodhpur

Cases

  • Kesavananda Bharati v. the State of Kerala (1973) 4 SCC 225.
  • Gopalan v. Government 1966 AIR 816 1966 SCR (2) 427.
  • Hadley v. Baxendale EWHC J70, (1854) 156 ER 145.

Sources

  1. Adjudication of a claim for damages under, Sections 73, 74 and 75 of Indian Contract Act, 1872, Manupatra
  2. Stevens, Frederick W. “Proper Use of the Writ of Injunction vol. 14, no. 8, 1908, pp. 577–583. JSTOR.
  3. Legalserviceindia.com-types-of-writs-in-Indian-constitution.
  4. http://scconline.com/post/tag/article-226/

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