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 a pattern which was issued by the court of King’s Bench with a view to exercising 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 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 the 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.
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:-
- Procedural impropriety
Relief – Five types of writs are available for judicial review of administrative actions under Article 32, and Article 226 of the Indian Constitution.
Writ of Habeas Corpus literally means “You may have the body” this writ is issued to secure the release of a person from illegal detention or without legal justification. In simple words, Court directs the person and even authority who has detained an individual to bring such person before Court so that the Court may decide the validity, justification, jurisdiction of such detention. It is to be filed by any person.
Writ of Mandamus means “To command the public authority” to perform its public duty in India. It is a discretionary remedy even as all five writs are a discretionary remedy in nature. Court has full power to refuse to entertain a writ petition. This writ cannot be issued on President or Governor.
Writ of Quo Warranto is an 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 expel a person from the office if he finds that he is not entitled to obtain such an office.
Writ of Prohibition is an extraordinary prerogative writ of prevention; it seeks to prevent Courts, Tribunals, Quasi-judicial authorities and officers from exceeding their jurisdiction. The main objective of this writ is to prevent the encroachment of jurisdiction. It is based upon the famous saying “Prevention is better than cure.”
Writ of Certiorari 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 a 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 the issue of this writ are –
- excess or failure to exercise the jurisdiction
- violation of natural justice rules such as the right of notice and hearing
- violation of fundamental rights or statutory provisions of laws
- Finding of facts which no person would have reached to the conclusion.
By – Mayank Shekhar
Faculty of Law, DU
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