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Analytical study of the judicial review of

administrative action in India

A
DISSERTATION
Submitted
In partial fulfillment of the requirements for
the award of degree of

B.A. LL.B. 5 Year Integrated Course

Under the Supervision of: Submitted by:

Prof. (Dr.) G.S. Rajpurohit Gaurav Choudhary


Dean, B.A. LL.B
Faculty of Law semester-x
Jagan Nath University, Jaipur enroll.no.50115803
1
FACULTY OF LAW, JAIPUR
MAY, 2018

CONTENT

CERTIFICATE………………………………………………………….…..4

DECELARATION………………………………………………….…..……5

ACKNOWLEDGE…………………………………………………….…….6

RESEARCH METHODOLOGY…………………………………..……….7

Chapter.1 INTRODUCTION…………………………………….…….8-10

 1.1definition………………………………………………………..…11

 1.2 The concept of judicial review- origin and its democratic

legitimacy…………………………………….................................12-21

 1.3 judicial review in India……………………………….………22-27

 1.4 judicial review object nature and scope……………….……..28-37

 1.5 limitation of the power of judicial

review………………………………………………………...……38-52

Chapter.2 JUDICIAL REVIEW OF ADMINISTRATIVE ACTION IN

INDIA……………………………………………………………………….53

 2.1 grounds……………………………………………………..…53-57

2
 2.2 Natural Justice – Habitat of Judicial Review ………..…57-67

 2.3 Relevance of judicial review of administrative action….……68-71

Chapter.3 CONSTITUIONAL FRAME WORK FOR JUDICIAL

REVIEW OF ADMINISTRATIVE ACTION IN INDIA………………..72

 3.1 Judicial review as a part of basic structure………...….……..73-74

 3.2 power and jurisdiction of Supreme Court………………..…..75-80

 3.3 power and jurisdiction of high court………………...……….80-84

 3.4 judicial review of administrative action through

writ…...............................................................................................84-95

Chapter.4 JUDICAL ACTIVISM……………………………………..……96

 4.1 judicial activism as an extension of power of judicial

review………………………………...…………………………..96-108

 4.2 limits of judicial review…………………………………….109-112

Chapter.5 CONCLUSION………………………………...………..113-114

Chapter.6 FUTURE PERSPECTIVE………………………..……115-116

BIBLIOGRAPHY……………………………………………………117-120

3
Prof.(Dr.) G.S. Rajpurohit

Dean,Faculty of Law,
Jagannath University, Jaipur

CERTIFICATE

It is certified that the work incorporated in this dissertation, “analytical study


of the judicial review of administrative action in india” was carried out by
the research candidate under my guidance and supervision. The material
obtained from other sources has been duly acknowledged in the dissertation.
It is further certified to the best of my knowledge that it is his original work.

Place: Jaipur prof. (Dr.)G.S. Rajpurohit


Supervisor

4
DECLARATION

I, the undersigned, hereby declare that the research work done on the topic
entitled “analytical study of the judicial review of administrative action in
india” is written and submitted under the guidance Prof.(Dr.) G.S.
Rajpurohit, Dean, Faculty of Law, Jagan Nath University, Jaipur.

The findings and conclusions drawn in Dissertation are based on the data and
other relevant information collected by me during the period of my research
study for the award B.A. LL.B. / B.B.A. LL.B. 5 Year Integrated Course in
the Department of Law from Jagan Nath University, Jaipur.

I further declare that the thesis submitted on the research study is my original
work and I have not copied anything from any report of this nature while
preparing this dissertation. Neither the work nor any part thereof is published
in any journal or anywhere else.

Place: Jaipur gaurav choudhary

5
ACKNOWLEDGEMENT

I convey my heart-full gratitude to Prof. (Dr.) G.S. Rajpurohit, Dean,


Faculty of Law, JaganNath University, Jaipur for his valuable guidance,
constant encouragement and valuable suggestions, without which the present
study would not have come to its present shape. I have no words indeed to
express my deep sense of gratitude toward him for his encouragement.

I am equally grateful to all present faculty of law for providing all the
required academic facilities in accomplishing my research work.

In the end I dedicate this small piece of work with sincere regards to the legal
fraternity who has been protecting the Rule of Law and Constitutionalism in
the India.

Place:Jaipur gaurav choudhary

6
RESEARCH METHODOLOGY

Research methodology is basically a portmanteau. Research is the quest for


knowledge, to weigh, evaluate and observe facts in order to explain opaque
proceedings. It is the systematic investigative delving into an unknown
scientific process, whereas methodology is the system of methods followed in
a particular discipline. Methodology includes a collection of theories,
concepts, ideas, and ideologies as they relate to a particular discipline or field
of inquiry .The present research study is a blend of doctrinal and empirical in
nature. Hence, mixed research method is been adopted.

7
Chapter.1

INTRODUCTION

Judicial review, the power of courts to review statutes and the


governmental action to determine whether they confirm to rules &
principles laid down in constitution. Judicial review is based on the idea
that a constitution which dictates the nature, functions and limits of a
government is the supreme law. Consequently, any action by a government
that violates the principles of its constitution is invalid. The system of
judicial review of administrative action has been inherited from Britain. It
is on this foundation that the Indian Courts have built a superstructure of
control mechanism. The whole law of judicial review of administrative
action has been developed by judges on case to case basis. Consequently,
a thicket of technicalities and inconsistencies surrounds it.

However, present trend of judicial decisions to widen the scope


of judicial review of administrative action and to restrict the immunity
from judicial review to class of cases whish relate to deployment of troops
and entering into international treaties, etc.1 That power corrupts a man
and absolute power corrupts absolutely which ultimately leads to tyranny,
anarchy, and chaos has been sufficiently established in course of evolution
of human history, all round attempts have been made to erect institutional

1
Indian Railway Construction Co. Ltd. v. Ajay Kumar, (2003)4 SCC 579

8
limitations on its exercise. When Montesquieu gave his Doctrine of
Separation of power, he was obviously moved by his desire to put a curb on
absolute and uncontrollable power in anyone organ of the government. A
legislature, an executive and a judicial power comprehend the whole of
what is meant and understood by government. It is by balancing each of
these two powers against the other two that the efforts in human nature
towards tyranny can alone be checked and restrained and any freedom
preserved in constitution.

Judicial review means review by courts of administrative actions


with a view to ensure their legality. Review is different from appeal. In
appeal the appellate authority can go into the merits of the decisions of the
authority appealed against. In judicial review, the court does not go into
the merits of the administrative action; court’s function is restricted to
ensuring that such authority does not act in excess of its power. The court
is not supposed to substitute its decision for that of the administrative
authority. In Judicial review of administrative action, the courts merely
enquire whether the administrative authority has acted according to the
law. Judicial Review of administrative action, according to de Smith, is
‘inevitably sporadic and peripheral’.2 It undertakes scrutiny of
administrative action on the touchstone of the Doctrine of ultravires. The
administrative authorities are given powers by the statutes and such

2
de Smith, Judicial Review of Administrative Action ,4th Ed.,1980

9
powers have to be exercised within the limits drawn upon them by the
statutes. As long as an authority acts within the ambit of the power given to
it, no court should interfere. It is in this sense that such an authority is said
to have the liberty to act rightly as well as wrongly. It has been held that a
court exercising judicial review should not act as a court of appeal over a
tribunal as an administrative authority whose decision comes before it for
review.3 The Supreme Court reiterated this principle of judicial review in
State of M.P. v. M.V. Vyavasaya Co. Ltd.4, as follows:

“It has been repeatedly held by this court that the power of the
High Court under article 226 of the Constitution is not akin to appellate
power. While exercising this power, the court does not go into the merits
of the decision taken by the authorities concerned but only ensures that the
decision is arrived at in accordance with the procedure prescribed by law
and in accordance with the principles of natural justice wherever
applicable. Further where there are disputed question of fact, the High
Court does not normally go into or adjudicate upon the disputed question
of fact.”

Judicial review is concerned with reviewing not the merits of a decision or


an order but with hoe the decision has been arrived at. The review court is
concerned with two questions:

1. Whether the authority has exceeded its

3
State of U.P. v. Nand Kishore Shukla, (1996)3 SCC 750
4
Tata Cellular v. UOI (1994)6 SCC 651; UOI v. B.C.Chaturvedi (1995)6 SCC 750

10
power?

2. Whether it has abused its power?

DEFINITION

Smith & Zurcher, have defined judicial review as “The examination or


review by the Courts, in cases actually before them, of legislative statutes and
executive or administrative acts to determine whether or not they are
prohibited by a written Constitution or are in excess of powers granted by it,
and if so, to declare them void and of no effect.”5

“Edward S. Corwin” also says that “Judicial Review is the power and duty of
the courts to disallow all legislative or executive acts of either the central or
the State governments, which in the Court’s opinion transgresses the
Constitution.”6

Another definition of judicial review is given as under: “Judicial review is the


power of the court to review statutes or administrative acts and determine
their constitutionality. The examination of federal and state legislature
statutes and the acts of their executive official by the Courts to determine their
validity according to written constitutions.” 7

5
Smith, Edward Conard and Zurcher, Arnold Jhon, Dictionary of America Politics, Barnes and Noble, New
York,
1959, p. 212.”
6
Corwin, Edward S., A Constitution of Powers in a Secular State, The Michie Company, USA, 1951, p. 3-4”
7
Dictionary of Political Science, Joseph Dunner, 1965, p. 285”
11
In his minority judgment while concurring with the above P.N. Bhagwati, J.
in the case of Minerva Mills8 observed” “it is for the judiciary to uphold the
Constitutional values and to enforce the Constitutional limitations, that is the
essence the Rule of law, which inter alia requires that the exercise of powers
by the Government whether it be the legislative or the executive or any other
authority be conditioned by the Constitution and the law”.

THE CONCEPT OF JUDICIAL REVIEW- ORIGIN AND ITS


DEMOCRATIC LEGITIMACY

ORIGIN

The development of any law is an outcome of deep study and thinking, and
any law cannot be said to have originated at any specific point of time. It may
have been implemented for the first time but it is always backed by the
consistent efforts of the scholars over a period of time. Judicial Review is
claimed to have recognized for the first time, in its modern sense, in USA in
Marbury vs. Madison9 but historically seeking, its origin can be traced back to
4th century. In around 415 B.C The Athenian Legal system had mechanism
called ‘Graphe Paranomon’. ‘Graphe Paranomon was a legal procedure to
challenge the legislations proposed by the Athenian Assembly which were
contrary to the existing (contemporary) Codes. Any male member could
challenge the validity of the legislation proposed (It was immaterial whether

8
Minerva Mills Ltd. v. Union of India & Ors, AIR 1789 SC 1789”
9
Marbury v. Madison (5 U.S. 137 (1803)
12
the legislation has actually been passed or not) and, if such legislation is
nullified by the jury then the Proposer thereof was punishable, typically with a
fine’.10

Judicial Review can also be found English Legal system. It was in 1610, when
his Excellency Lord Edward Coke, who was an English Judge, in the famous
Bonham’s case11 observed: “it appears in our books, that in many cases, the
common law will control Acts of Parliament, and sometimes adjudge them
to be utterly void: for when an Act of Parliament is against common right
and reason, or repugnant, or impossible to be performed, the common law
will control it, and adjudge such Act to be void.”

The basic idea of American Judicial Review is stemmed from this precedence
of English Legal System. However, the principles of Parliamentary
Supremacy prevailed and ultimately set the pattern of English Constitutional
law. Henceforth, English judges were to be guided by the Blackstonian
principle ‘that the power of parliament is absolute and without control’.

Bonham’s case, for the first time, was significantly elaborated in the
arguments of profound constitutional lawyer James Otis in Paton’s case12
also known as Writs of Assistance Case in 1767. In Boston, Otis argued that
‘British officers had no power under the law to use search warrants that did
not stimulate the object of the search’. Otis based his challenge to the

10
For general discussion of the graphe paranomon procedure, see M.J. SUNDAHL, THE USE OF STATUTES
IN THE SEVEN EXTANT GRAPHE PARANOMON AND GRAPHE NOMON ME EPITEDEION THEINAI
SPEECHES, Unpublished Ph.D. Dissertation (Brown University 2000)
11
Thomas Bonham v College of Physicians, (1610) 77 Eng. Rep. 646,652.
12
Gray, Mass. Repts, 51 469 (1761)
13
underlying act of Parliament on Bonham’s Case, the English Constitution, and
the principle of “natural equity.” Otis argued: “that the Parliament was not
the final arbiter of its own Acts and contended that the validity of statutes
must be judged by the courts of justice. This argument of Otis fore-shadowed
the principle of American constitutional law that it is the duty of the judiciary
to declare unconstitutional statutes void’. 13

The voyage of evolution of what we understand today as Judicial Review has,


then, been through the thoughts of Alexander Hamilton, who endorsed this
proposition into the Ideological foundation thereof. Marshall’s Marbury vs.
Madison was inspired by Hamilton’s essay in the federal papers No. 78 in ‘the
Federalist’ (1788). He wrote: “whoever attentively considers the different
departments of power must perceive that, in a government in which they are
separated from each other, the judiciary, from the nature of its functions, will
always be the least dangerous to the political rights of the Constitution. The
judiciary has no influence over either the sword or purse; no direction either
of the strength or of the wealth of the society; and can take no active
resolution whatever. It may truly be said to have neither Force nor Will but
merely judgment”.

The 5th and 14th Amendments in the Constitution adopted the ‘Due Process
Clause’ which provided the scope to exercise the power of Judicial Review by
the Supreme Court, however this intuition had been maintained as integral

13
Cortez, A.M.,Ewing & Jewell Cass Phillips, Essentials of American Government, American Book Co.,
New York, 1962, p. 242.

14
and vital part of the American system of government only after Chief Justice
Marshall decided Marbury v. Madison in 1803.

MARBURY vs. MADISON

Before the inauguration of President Jefferson, outgoing President Adams


attempted to secure Federalist control of the judiciary by creating new
judgeships and filling them with Federalist appointees. Included in these
efforts was the nomination by President Adams, under the Organic Act of the
District of Columbia (the District), of 42 new justices of the peace for the
District, which were confirmed by the Senate the day before President
Jefferson’s inauguration. A few of the commissions, including Marbury’s,
were undelivered when President Jefferson took office. The new president
instructed Secretary of State James Madison to withhold delivery of the
commissions. Marbury sought mandamus in the Supreme Court, requiring
James Madison to deliver his commission.

In the case of Marburry vs. Madison it was held : “….that the people have an
original right to establish, for their future government, such principles, as in
their opinion shall most conduce to their happiness is the basis on which the
whole American fabric has been created… the principles, therefore so
established, are deemed to be fundamental… This original and supreme will
organize the government, and assigns to different department their respective
powers… the powers of the legislature are denied and limited and that those
limits may not be mistaken or forgotten, the Constitution is written… certainly
all those who have framed written Constitutions contemplate them as forming
15
the fundamental and paramount law of the national and, consequently, An act
of the legislature, repugnant to the Constitution is void, so if a law be in
opposition to the Constitution; if both the law and the Constitution apply to a
particular case. The court must determine which of these rules govern the
case If, then the courts are to regard the Constitution, and the Constitution is
superior to any ordinary act of the legislature, the Constitution and not such
ordinary act, must govern the case to which they both apply”. The court
continued that “the interpretation of the laws is the proper and peculiar
province of the courts. A Constitution is in fact and must be regarded by the
judges as a fundamental law. It therefore belongs to them to ascertain its
meaning as well as the meaning of any particular act proceeding from the
legislative body”14

The powers of the legislature are defined and limited and that those limits
may not be mistaken or forgotten, the written Constitution constitute ‘the
fundamental and paramount law of the nation’ and, consequently an act of the
legislature, repugnant to the Constitution is void so if a law be in opposition to
the Constitution, if both the law and the Constitution apply to particular case.

This case gave new gleam to Judicial Review. It was not only adopted in
America but also in other Countries. However it was also criticized by authors
like Jeremy Waldron who called it incompatible with Democracy.

Bernard appreciated the idea of judicial review and remarked: “From a


historical point of view Marbury v. Madison is a crucial importance as the

14
Marbury v. Madison (5 U.S. 137 (1803)
16
first case establishing the power of the Supreme Court to review
constitutionality”.15

EMERGENCE IN INDIA

Judicial Review in India for the first time was mentioned in Emperor v.
Burah.16 The Calcutta High Court as well as Privy Council adopted the view
that the Indian courts had power of Judicial Review under certain limitations.
This view was further reaffirmed in certain other case before the Government
of India Act of 1935 came into operation.

The Government of India Act of 1935 (herein this paragraph referred to as


Constitution) introduced Federal Courts to function as an arbiter in the Central
and State relationship and to scrutinize the violation of the constitutional
directions regarding the distribution of the powers. Even the Constitution
didn’t specifically have any provision in this regard; the Federal court was
impliedly entrusted with the function of interpreting the Constitution and to
determine the constitutionality of legislative Act. A large number of cases
cropped up involving the question of the validity of the legislative Acts, were
one of the main topics of decision before the Federal Court and the Privy
Council. Maurice Gwyer C.J. of the Federal Court of India observed “we must
again refer to the fundamental proposition enunciated in (1878) 3 AC 889
(Reg V. Burah) that India legislatures within their own sphere have plenary

15
Schwzarts, Bernard, The Reins of Power, A Constitutional History of the United States, Hill & Mong, New
York, 1963, p. 51.
16
(1878) ILR 3 Cal 64
17
powers of legislation as large and of the same nature as those of parliament
itself. It was true in 1878; it can’t be less true in 1942”.

The development of Judicial Review continued and it was followed by many


precedents. The framers of our Constitution also appreciated the same. The
framers of the constitution were aware of the inherent weaknesses of Judicial
Review; therefore they tried to define its scope and adopted several devices to
prevent courts from abusing their powers and acting as “super legislature” or
permanent “third chambers”.17 The Constitution of India, 1950 specifically
provided for Judicial Review in Article 13, 32 and 226.

Just after the passing of Constitution of 1950 the entire Bengal Criminal
Amendment Act of 1930 was declared void by the Calcutta High Court in a
special Bench case. The Court held “The legislatures in this country have only
those powers of legislation which are bestowed upon them by the Constitution
Act. If they pass an Act in excess of these powers, the Act becomes void to
that extent. Under our Constitution, the Court i.e. the judiciary is to decide
this and nobody else. We recognize that great powers necessarily involve
grave responsibilities, but we are not dismayed. Amidst the strident clamour
of political strife and the tumult 106 of the clash of conflicting classes we
must remain impartial. This court is no respecter of persons and its endeavour
must be to ensure that above this clamour and tumult, the strong calm voices
of justices shall always be head”.18

17
Sarkar, R.C.S., op.cit., p. 353.
18
Sunil Kumar Bose And Ors. vs The Chief Secretary, 54 CWN 394
18
The legislative actions can be declared unconstitutional but the pertinent
question here is whether Constitutional Amendments can be declared as
unconstitutional. It sounds like paradox to render a Constitutional
Amendment as unconstitutional and hence it attracted a sensible debate
among the scholars. This question was raised in Shankari Prasad v. Union of
India19 where in the very first Amendment to the Constitution, which
curtailed the ‘Right to Property’ guaranteed under article 31, was challenged.
The petitioner argued that the word Amendment qualifies to be a law
according to article 13(2) and hence the Amendment can be struck down.
Rejecting this argument the Supreme Court held that the power to amend the
Constitution under article 368 is a constituent power which is distinct from
legislative power under article 245. Therefore, a constitutional amendment
will be valid even if it abridges or takes any of the fundamental rights.

In 1964, again the question was raised before the Supreme court in Sajjan
Singh v. State of Rajasthan 20, wherein the Seventeenth Amendment to the
Constitution was challenged. Honorable Supreme Court again upheld the
Seventeenth Amendment and said that the power of Judicial Review is outside
the purview of article 368.

However the same Amendment was again challenged in Golakh Nath v. State
of Punjab21 wherein the Apex Court reconsidered its previous two decisions.
The majority held that the Amendment was void in as much as it took away or

19
AIR 1951 SC 455
20
AIR 1965 SC 845, 1965 SCR (1) 933
21
AIR 1967 SC 1463.
19
abridge the fundamental rights under article 13(2) of the Constitution. The
Doctrine of Prospective overruling was applied for the first time and it was
held that that this decision will have only prospective operation and therefore,
the seventeenth Amendment will continue to be valid.

The Parliament, however, then passed Twenty-fourth Amendment to the


Constitution amending article 368 and 13 to regain the absolute power to
amend the constitution. This was challenged in Keshvanandan Bharti v. State
of Kerela22 along with Twenty-fifth and Twenty-ninth Amendments. This
matter was adjudicated upon by the bench of 13 Judges wherein 11 delivered
separate judgments. It was held that even a fundamental right can be amended
or altered provided that they are in consonance with the basic structure of the
Constitution. It is at the discretion of the court to determine which
fundamental right is ‘basic’ feature. The right to property has not been treated
as such and so the fundamental right to property has been abrogated. A part of
article 31-C (included by twenty-fifth amendment) which took the power of

Judicial Review from the court was also struck down. The honorable Supreme
Court came up with the ‘Doctrine of Basic Structure’ which means any part or
provision of the Constitution can be altered, added, or repealed by way of
amendment to the extent it don’t affect the basic structure of the Constitution.

This followed several instances wherein Judicial Review was echoed. Judicial
Review was not only adopted but also declared as basic feature. In L.

22
AIR 1973 SC 1461
20
Chandra Kumar v. Union of India23 a larger Bench of seven Judges declared:
“that the power of judicial review over legislative action vested in the High
Courts under Article 226 and in the Supreme Court under Article 32 of the
Constitution is an integral and essential feature of the Constitution,
constituting part of its basic structure”.

A weapon can be used for either protection or attack and it solely depends on
the person holding it. There are criticisms to this idea and many scholars have
posed a question as to its proper use. Judiciary, on the other hand has,
however, made attempts to answer such criticism. In one of the instance of All
Saints High School v. Andhra Pradesh 24 Chief Justice Chandrachud said:
“..All this depends on the outlook and values of the judge.”

Chief justice Patanjali Shastri of the Supreme Court of India also remarked
“while the court naturally attaches a great weight to the legislative judgment it
cannot desert its own duty to determine finally constitutionality of an
impugned statute”.25

Thus Judicial Review emerged as both a power and a function of the


Judiciary. Its development was facilitated more with its criticism. It was
adopted to ‘guard Constitution’ against the personal ideology of any Political
Party who for the time being forms the majority. The voyage didn’t pause
here it continued and transformed it into ‘Judicial Activism’ or ‘Judicial
Adventurism’.

23
(1997) 3 SCC 261
24
AIR 1980 SC 1042 at 1050.
25
1980 AIR 1042, 1980 SCR (2) 924.
21
JUDICIAL REVIEW IN INDIA

In its capacity as the guardian of the Constitution the Supreme Court of India
possesses implied power to declare any Act of the Central or State Legislature
or any decree of the Executive as ultra vires, if it does not conform to the
provisions of the Constitution. The power of the Judiciary to review the Act
of the Legislature or the Executive in order to determine its constitutional
propriety is known as the “Doctrine of Judicial Review”.

America is the classic home of judicial review. It was an extra constitutional


growth in America. In the famous case of Marbury vs. Madison (1803) Chief
Justice John Marshall of the United States emphatically pronounced the
power of the Court to declare the act of the legislature as ultra vires. Marshall
claimed this power of the Court from famous clause of “Due Process of Law”
of the American Constitution. One of the Bills Of Rights in the American
Constitution is that “No person shall be deprived of his life, liberty and
property without due process of law”.

American Jurists claim that Law in this Clause is akin to “Natural Law”.
According to Daniel Webster the meaning of “Due Process of Law” is that
“Every citizen shall hold his life, liberty, property and immunities for the
protection of general laws which govern society”. “Due” in this clause has
been taken to mean “What is just and proper” and “Law” as “Natural Law”.
Thus the Judicial Review in the American Constitution has two aspects,
namely, procedural and Substantive. The Supreme Court can challenge an Act

22
if either its procedure is defective or the substance contained in it is against
the canons of the natural law or natural justice.

There is no judicial review in England. England has an unwritten


Constitution. There is absolute supremacy of the Parliament. The Chief
Legislators and Chief Executives are combined and the Cabinet headed by the
Prime Minister brings complete co-ordination between the legislation and
administration. Hence judicial review is not necessary.

The power of judicial review is explicit in the Constitution of India. Further,


the scope of judicial review in India is not as wide as that of the United States
of America. The scope of judicial review is comparatively limited in India
because of the fact that the Constitution of India is the longest written
Constitution in the world. All provisions including the distribution of powers
between the Union and the States have been elaborately enumerated. The
enumeration of Fundamental Rights along with its limitations in detail has
also restricted the scope of judicial review in India. Further, there is a vital
distinction between the two clauses contained in the respective Constitutions,
namely, “Due Process of Law” of the American Constitution and “Procedure
established by Law” of the Indian Constitution.

Article 21 of the Constitution provides that “no person shall be deprived of his
life or personal liberty except according to the procedure established by law”.
The word “law” in the clause “procedure established by law” does not mean
natural law but it implies State made law. If the State makes law through
which life or personal liberty of the citizen is deprived of the Supreme Court
23
cannot question it on the ground of natural law or natural justice. The Court
can only question the procedure through which the person is deprived of his
life or personal liberty.

The Supreme Court of India in the famous case of A. K. Gopalan vs. State of
Madras (1950) accepted its own limitations. It decided that the “Procedure
established by Law” is not same as “Due Process of Law” of the American
Constitution and by adopting that phrase, the Constitution-makers of India
gave the Legislature the final word to determine law. Thus the reasonableness
of law cannot be questioned in India by the Supreme Court on substantive
grounds. Only the procedural aspect of the judicial review is found in the
Indian Constitution but not that of its substantive aspect. Further, the

Supreme Court can declare any legislation as ultra vires if it goes against any
provision of the Constitution. It can declare any act of the Legislature or the
Executive as unconstitutional if it violates any of the Fundamental Rights
guaranteed under the Constitution. Justice B. K. Mukherjee correctly assessed
the position of our Supreme Court in the following words:-

“In India it is the Constitution that is Supreme and Parliament as well as Stale
legislatures must not only act within the limits of their respective legislative
spheres as demarcated in the three lists occurring in the Seventh Schedule of
the Constitution, but Part 111 of the Constitution guarantees to the citizen
certain fundamental rights which the legislative authority can on no account
transgress. A statute or law to be valid must, in all cases, be in conformity

24
with the constitutional requirements and it is for the judiciary to decide
whether any enactment is unconstitutional or not”.

The scope of judicial review in India generally speaking is done in three


specific areas:

1. Judicial review of legislative action;

2. Judicial review of executive or administrative action;

3. Judicial review of judicial action.

Under Indian Constitution distribution of legislative powers between the


Parliament and the Legislatures of the States is defined. Various heads of
legislations are contained in the three lists - Union, State and Concurrent,
contained in the 7th schedule to the Constitution. The enactments of
Legislatures can be challenged on the ground that they are in conflict with
Part III of the Constitution or are otherwise ultra vires the Constitution.

The foregoing proposition has been embodied in Art.13 of the Constitution, so


far as the provisions guaranteed under Part III of the Constitution. Cls. (1) and
(2) of Art. 13 lay down that any law made by any Legislature in India,
whether before or after the commencement of the Constitution, shall be void
if and in so far as it offends against any of the Fundamental Rights included in
Part III. In Gopalan v. St. of Madras26 Kania C.J., observed, “the inclusion
of Art. 13(1) and (2) in Constitution appears to be a matter of abundant

26
(1950) SCR 88 (100).
25
caution. Even in their absence, if any of the fundamental rights was infringed
by any legislative enactment, to the extent it transgresses the limits, invalid.”

In Re, Delhi laws Act,27 Kania C.J. observed, as the paramount law, the
Constitution creates the Legislature itself and confers upon it power to make
laws subject to certain limitations, without which, of course, the power of the
Legislature to make laws would have been plenary. It is because the
limitations contained in Part III and other articles of the Constitution are
imposed by a paramount or fundamental law, that a law made by the
Legislature must give way whenever it transgresses the limitations imposed
by the Constitution, and out of that arises the function of the Judiciary to
invalidate such unconstitutional law.
In Reference case,28 Gajendragadkar, C.J., observed, “In a democratic
country governed by a written Constitution, it is the Constitution which is
supreme and sovereign. It is no doubt true that the Constitution itself can be
amended by the parliament, but that is possible because Art. 368 of the
Constitution itself makes a provision in that behalf, and the amendment of the
constitution can be validly made only by following the procedure prescribed
by the said article…”
Since then the constitution being the paramount law is considered as
“fundamental law of the land” or the “supreme law of the land” is firmly
established in India. It would now be evident to take the holistic view of the
Constitution. In that realm, there is one provision in Art. 254(1) which enjoins

27
(1951) SCR 747 (765).
28
AIR 1965 SC 745.
26
the courts to annul a State law which is repugnant to a Union law in List III
under 7th Schedule. But even though there is no provision corresponding to
Art. 13 or Art. 254(1) to invalidate a Union or State law which violates any of
the other provisions of the constitution, it is now well settled that the same
result would happen if the provision which has been violated is ‘justiciable’
and ‘mandatory’ in nature. So far as India is concerned, there are various
provisions; In the Constitution, the acts of the Legislature or any other organ
are ‘subject to the provisions of the constitution’, e.g., Arts. 245, 309, 327,
328, which limits the power of the organs of the States set up by the
Constitution. Of course, there are, on the contrary, certain provisions which
give overriding power to the Legislature ‘notwithstanding anything in this
Constitution’, e.g. the power to amend the Constitution itself, under Art.
368(1) also Art. 369, which power the legislature could not have exercised but
for such express authorisation by the Constitution.

In St. of Rajasthan v. Union of India,29 Bhagwati J. for the majority


observed, “So long as a question arises whether an authority under the
Constitution has acted within the limits of its power or exceeded it, it can
certainly be decided by the Court. Indeed it would be its constitutional
obligation to do so… the Constitution is the supreme lex, the paramount law
of the land, and there is no department or branch of Government above or
beyond it.

29
AIR 1977 SC 1361.
27
JUDICIAL REVIEW: NATURE OBJECT AND SCOPE

The underlying object of judicial review is to ensure that the authority


does not abuse its power and the individual receives just and fair treatment
and not to ensure that the authority reaches a conclusion which is incorrect
in the eye of law.30
As observed by the Supreme Court in Minerva Mills Ltd. v. UOI, the
constitution has created an independent judiciary which is vested with the
power of judicial review to determine the legality of administrative action
and validity of legislation. It is the solemn duty of the judiciary under the
constitution to keep different organs of the State within the limits of the
power conferred upon them by the constitution by exercising power of
Judicial Review as sentinel on the qui vive.
Thus, judicial review aims to protect citizens from abuse or misuse of
power by any branch of the State. Judicial quest in administrative matters
is to strike the just balance between the administrative discretion to decide
matters as per government policy, and the need of fairness, any unfair
action must be set right by administrative review31.
Judicial review of administrative action is perhaps the most important
development in the field of public law in the second half of this century.
In India, the doctrine of judicial review is the basic feature of our
constitution. Judicial review is the most potent weapon in the hands of the
judiciary for the maintenance of the rule of law.
30
Chief Constable v. Evans, (1982)3 All ER 141; Sterling Computers Ltd. v. M&N Publications, AIR 1996
SC 51 ; LIC of India v. CERC AIR 1995 SC 1811
31
Tata Cellular v. UOI, (1994)6 SCC 651; AIR 1996 SC 11& 13
28
Judicial review is the touchstone of the Constitution. The Supreme Court
and High Courts are the ultimate interpreters of the constitution. It is,
therefore, their duty to find out the extent and limits of the power to co-
ordinate branches, viz. executive and legislature and to see that they do
not transgress their limits. This is indeed a delicate task assigned to the
judiciary by the Constitution. Judicial Review is thus the touchstone and
essence of the rule of law32.
The power of judicial review is an integral part of our constitutional
system and without it, there will be no government of laws and the rule of
law would become a teasing illusion and a promise of unreality. The
judicial review, therefore, is a basic and essential feature of the
constitution and it cannot be abrogated without affecting the basic
structure of the Constitution. The areas where judicial power can operate
are limited to keep the executive and legislature within the schemes of
division of powers between three organs of the State. The ultimate scope
of judicial review depends upon the facts and circumstances of each case.
The dimensions of judicial review must remain flexible. It is cardinal
principle of our constitution that no one howsoever highly placed and no
authority lofty can claim to be the sole judge of its power under the
constitution. The rule of law requires that the exercise of power by the
legislature or by the judiciary or by the government or by any other
authority must be conditioned by the constitution. Judicial review is thus
the repository of the supreme law of the land. It is a vital principle of our
32
R.K.Jain v. UOI, (1993)4 SCC 119(168); Sitaram v. State of U.P. AIR 1972 SC 1168; Krishna
Swami v. UOI (1992)4 SCC 605 (649)

29
constitution which cannot be abrogated without affecting the basic
structure of the Constitution.
The judiciary plays a very important role as a protector of the
constitutional values that the founding fathers have given us. They try to
undo the harm that is being done by the legislature and the executive and
try to provide every citizen what has been promised by the constitution
under the Directive Principles of State policy. All this is possible thanks to
the power of judicial review. All this is not achieved in a day, it took more
than half of a century where we are right now. If anyone thinks that it has
been a roller coaster ride without any hindrances, they are wrong.
Judiciary has been facing the brunt of many politicians, technocrats,
academicians, lawyers etc. Few of them being genuine concern, and
among these criticisms one is the aspect of corruption and power of
criminal contempt.
“Judicial review of administrative action is feasible and the same has its
application to its fullest in even departmental proceedings where it is
found that the recorded findings are based on no evidence or the findings
are totally perverse or legally untenable.” This is a fundamental
requirement of law that the doctrine of Natural Justice be complied with
and the same has, as a matter of fact, turned out to be an integral part of
administrative jurisprudence of this course33.
The rule of law is the bedrock of democracy, and the primary
responsibility for implementation of the rule of law lies with the

33
Source 26 Oct, 2000. Indian Express Newspaper.
30
judiciary34. This is now a basic feature of every constitution, which cannot
be altered even by the exercise of new powers from Parliament. It is the
significance of judicial review, to ensure that democracy is inclusive and
that there is accountability of everyone who wields or exercises public
power. As Edmund Burke said: “all persons in positions of powers ought
to be strongly and lawfully impressed with an idea that ‘they act in trust’,
and must account for their conduct to one great master, to those in whom
the political sovereignty rests, the people”35. India opted for a
parliamentary form of democracy, where every section is involved in
policy-making, the decision taking, so that every point of view is reflected
and there is a fair representation of every section of the people in every
such body. In this kind of inclusive democracy, the judiciary has a very
important role to play. That is the concept of accountability in any
republican democracy, and this basic theme has to be remembered by
everybody exercising public power, irrespective of extra expressed
expositions of the constitution36.
The principle of judicial review became essential feature of written
constitutions of countries. Seervai in his book Constitutional Law in India
noted that the principle of judicial review is a familiar feature of the
Constitutions of Canada, Australia and India; though the Doctrine of
Separation of Powers has no place in strict sense in Indian Constitution,

34
Dr. Jt. A.S.Anand, Jt. N.D.Krishna Rao Memorial Lecture Protection of Human Rights – Judicial
Obligation or Judicial Activism (1997)7 SCC (Jour)11
35
Jt. J.S.Verma, “Ensuring Accountability and the Rule of Law : the Role of Judiciary.” Inaugral speech at
Conference of Asian Centre for Democratic Governance on 7-8 Jan, 2001
36
R.C. Ghuja Memorial Lecture on the Constitutional Obligation of the Judiciary, Delivered by Hon’ble Sh.
Jt. J.S.Verma (1997)7 SCC (Jour)1.
31
but the functions of different organs of the Government could not usurp
the functions of another37.
The power of judicial review has in itself the concept of Separation of
Powers an essential component of the rule of law, which is a basic feature
of the Indian Constitution. Every State action has to be tested on the anvil
of rule of law and that exercise is performed, when occasion arises by the
reason of a doubt raised in that behalf, by the courts. The power of judicial
review is incorporated in Article 226 & 227 of the Constitution insofar as
the High Courts are concerned. In regard to the Supreme Court Article 32
& 136 of the Constitution, the judiciary in India has come to control by
judicial review every aspect of government and public function38.
Sometimes, it is argued that the strength of the courts has weakened other
parts of the government. This legal debate raises the important and
inevitable question that how far this statement holds true about judicial
review powers and capacities of the Indian Judiciary. The Indian
Constitution, like other written Constitutions, follows the concept of
‘Separation of powers’ between the three sovereign organs of the
Constitution. The Doctrine of Separation of powers stated in its rigid form
means that each of the organ of the Constitution, namely, executive,
legislature and judiciary should operate in its own sphere and there should
be no overlapping their functioning. The Indian Constitution has not
recognized the doctrine of separation of powers in its absolute form but
the functions of the different organs have been clearly differentiated and
37
H.M.Seervai, Constitutional Law of India, 3rd Ed. Vol. I
38
Soli J. Sorabjee, “Decision of Supreme Court in S.R.Bommai v. UOI : A Critique, (1994)3 SCC (Jour)1; Jt.
Syed Shah Mohd. Quadri, “ Judicial Review of Administrative Action”, (2001)6 SCC (Jour)1
32
consequently it can very well be said that our constitution does not
contemplate assumptions, by one organ of the functions that essentially
belong to another39. Though the Constitution has adopted the
parliamentary form of government, where the dividing line between the
legislature and the executive becomes thin, the theory of separation of
powers is still valid. Even though the Constitution of India does not accept
strict separation of powers, it provides for an independent judiciary with
extensive jurisdiction over the acts of the legislature and the executive31.
Independence and integrity of the judiciary in a democratic system of
government is of the highest importance and interest not only to the
judges but also to the people at large who seek judicial redress against
perceived legal injury or executive excess. Judicial review is the basic
structure, independent judiciary is the cardinal feature, and an assurance of
faith enshrined in the Constitution. The need for independent and impartial
judiciary is the command of the constitution and call of the people.
In the landmark judgment of P.U.C.L. v. UOI, Jt. Shah observed: “The
legislature in this country has no power to ask the instrumentalities of the
State to disobey or disregard the decisions given by the courts. The
legislature may remove the defect, which is the cause for invalidating the
law by the court by appropriate legislation if it has power over the subject
matter and component to do so under the constitution. The primary duty of
the judiciary is to uphold the constitution and the laws without fear or
favor, without being biased by the political ideology or economic theory.

39
Ram Jawaya v. State of Punjab, AIR 1955 SC 549

33
Interpretation should be in consonance with the constitutional provisions,
which envisage a republic democracy. Survival of democracy depends
upon free and fair election. It is true that political parties fight elections,
yet elections would be farce if the voters were unaware of antecedents of
candidates contesting elections. Such elections would be neither free nor
fair.” These bold words of Jt. Shah reflect the status, which the Indian
Judiciary is holding in the Constitutional set-up. The constitution-makers
have reposed great confidence and trust in Indian Judiciary by conferring
on it such powers as have made it one of the most powerful judiciary in
the world. The Supreme Court has from time to time indulged in genuine
and needful judicial activism and judicial review. It gave birth to the
famous and most needed “Doctrine of Basic Structure”.

Scope

The initial years of the Supreme Court of India saw the adoption of an
approach characterized by caution and circumspection. Being steeped in
the British Tradition of limited judicial review, the court generally
adopted a pro-legislature stance. This is evident from the ruling such as
A.K. Gopalan, but however it did not take long for judges to break their
shackles and this led to a series of right to property cases in which the
judiciary had strong disagreement with the Parliament. The nation
witnessed a series of events where a decision of the Supreme Court was
followed by a legislation nullifying its effect, followed by another
decision reaffirming the earlier position, and so on. The struggle between
34
the two wings of government continued on other issues such as the power
of amending the constitution40. During this era, the legislature sought to
bring forth people-oriented socialist measures which when in conflict with
fundamental rights were frustrated on the upholding of the fundamental
rights of individuals by the Supreme Court. At the time, an effort was made
to project the Supreme Court as being concerned only with the interests of
propertied classes and being insensitive to the needs of the masses.
Between 1950 and 1975, the Indian Supreme Court has held a mere one
hundred Union and State laws, in whole or in part, to be unconstitutional.
After emergency the judiciary was on the receiving end for having
delivered a series of judgments which were perceived by many as being
violative of the basic human rights of Indian citizens41 and changed the
way it looked at the constitution. The Supreme Court said that any
legislation is amenable to judicial review, be it momentous amendments42
to the constitution or drawing up of schemes and bye laws of municipal
bodies which affect the life of a citizens. Judicial review extends to every
governmental or executive action from high policy matters like the
President’s power to issue a proclamation or failure of constitutional
machinery in the States like the Bommai Case, to the highly
discretionary exercise of the prerogative of pardon like in Kehar Singh
case or the right to go abroad as in Satwant Singh case. Judicial Review

40
I.C.Golaknath v. State of Punjab, (1967)2 SCR 762; Shankari Prasad Singh Deo v. UOI, (1952) SCR 89:
Sajjan Singh v. State of Rajasthan, (1965)1 SCR 933
41
ADM v. Shivkant Shukla, (1976)2 SCC 521
42
Shankari Prasad, Sajjan Singh, Golak Nath, Kesvananda Bharti, Minerva Mills, Sanjeev Coke Mfg.
Co., Indira Gandhi v. Raj Narain.

35
knows no bounds except the restraint of the judges themselves regarding
justifiability of an issue in a particular case.
In the initial stages of the judicial adjudication courts have said that where
there is a political question involved it is not amenable to judicial review
but slowly this changed, in Kesvananda Bharti’s case, the court held that,
“it is difficult to see how the power of judicial review makes the judiciary
supreme in any sense of the word. This power is of paramount importance
in a federal constitution Judicial Review of constitutional amendments
may seem involving the court in political question, but it is the court alone
which can decide such an issue. The function of interpretation of a
constitution being thus assigned to the judicial power, the question
whether the subject of law is within the ambit of one or more powers of the
legislature conferred by the constitution would always be a question of
interpretation of the Constitution.”
It was in Special Court Bill, 1978, in re, case where the majority opined
that, “The policy of the Bill and the motive of the mover to ensure a
speedy trial of persons holding high public or political office who are
alleged to have committed certain crimes during the period of emergency
may be political, but the question whether the Bill or any provisions are
constitutionally invalid is not a question of political nature and the court
should not refrain from answering it.” What this meant was that though
there are political questions involved the validity of any action or
legislation can be challenged if it would violate the constitution. This

36
position has been reiterated in many other cases43 and in S.R. Bommai’s
case the court held, “though subjective satisfaction of the President cannot
be reviewed but the material on which satisfaction is based are open to
review” , the Court further went on to say that, “ the opinion which the
President would form on the basis of Governor’s report or otherwise
would be based on his political judgment and it is difficult to evolve
judicially manageable norms for scrutinizing such political decisions.
Therefore, by the very nature of things which would govern the decision
making under Article 356, it is difficult to hold that the decision of the
President is justiciable. To do so would be entering the political thicker
and questioning the political wisdom which the court of law must avoid.
The temptation to delve into the President’s satisfaction may be great but
the courts would be well advised to resist the temptation for want of
judicially manageable standards. Therefore, the courts cannot interdict the
use of the constitutional power conferred on the President under Article
356 unless the same is shown to be malafide.” As Soli Sorabjee points out,
“there is genuine concern about misuse, by the Central, of Article 356 on
the pretext that the State government is acting in defiance of the essential
features of the constitution. The real safeguard will be full judicial review
extending to an inquiry into the truth and correctness of the basic facts
relied upon in support of the action under Article 356 as indicated by

43
A. Sreeamulu RE, AIR 1974 AP 106; A.K.Roy v.UOI (1982)1 SCC 271, K.K. Aboo v. UOI, AIR
1965 Ker 229 ; Hanumantha Rao v. State of A.P. (1975)2 AWR 277; Bijayananda v. President of
India, AIR 1974 Ori 52; State of Rajasthan v. UOI (1977)3 SCC 592

37
Justices Satwant and Kuldeep Singh. If in certain cases that entails
evaluating the sufficiency of the material, so be it.” What this meant was
the judiciary was being cautious about the role it has to play while
adjudicating matters of such importance and it is showing a path of
restraint that has to be used while deciding such matters so that it does not
usurp the power given by the constitution by way of power of review at
the same time. It is also minimizing the misusing of the power given under
Article 356 to the President.

LIMITATION OF THE POWER OF JUDICIAL REVIEW

In India the rule of law was adopted, where general rules of accountability
were assumed. However, there is still scope for abusing power, and thus
arises the need to evolve specific and concrete mechanisms of
accountability. Judicial Review evolved as such a specific and concrete
method of checking the excess of administrative bodies. It is now read to
be a part of the basic structure of the constitution44, and has been the crux
of administrative law in India.
The scope has been limited with the help of various principles as imbibed
from common law, to the common pool of which the Indian courts have
added, subtracted or modified such principles, as they thought fit in the
Indian context. Sometimes a culture of arbitrariness can be gauged within

44
Smt. Indira Gandhi v. Sh. Raj Narain AIR 1975 SC 2299; P. Sampath Kumar v. UOI (1987)1 SCC
124; I.R. Cohelo (By lrs)etc. v. State of T.N. AIR 1999 SC 3179

38
the judicial circles while applying the principles of Judicial Review
especially in recent times. A decision is said to be arbitrary when it is
depending on individual discretion, or determined by a judge rather than by
fixed rules, procedures or law. Such arbitrariness takes myriad forms. It
can be observed that judicial arbitrariness itself in four major forms.
1.) Courts substituting the decision it, with what it thinks fit One of the
fundamental principles regarding judicial review is its restricted scope,
when compared to judicial appeal. While appeal empowers the court to
look into the merit of the case, based on which it gives its own decision,
the scope of judicial review is restricted to a supervisory jurisdiction, not
an appellate jurisdiction. Courts under review are to decide only about the
decision-making process and not the decision itself. Sadly, this golden
rule is often ignored, especially by the High Courts, and there is a
growing trend regarding the same in recent times.
Jayabhai Jayanta Patel v. Anilbhai Jayantibhai Patel and ors, is the most
recent case exemplifying the same. This case is concerned with an election
dispute, where certain people were prevented from casting a vote,
resulting in the election of a certain President. This was challenged before
a presiding officer, but he upheld the election. The matter was brought
before the division bench of the Gujarat High Court. Here, the High Court
not only quashed the election decision, but went out of its scope of review
and held the other candidate standing to be the President. Fortunately, the
Supreme Court overruled this. The High Court, under review had no power
to substitute the decision with its own decision and elect the new President.

39
Another instance of the same nature can be found in Govt. of A.P. and
others v. Sridevi and others45. Here, the respondents had brought
agricultural land and wanted to convert it into housing land. For this a no
objection certificate from special officer-cum-competent authority was
required and an application for the same was made. However, the special
officer dismissed the application, without finally deciding about same.
The respondents filed a writ in the High Court. The High Court not only
quashed the decision of special officer but also substituted its decision,
holding that since the land was outside the purview of the Urban Land
Ceiling Act, the respondents be given the no objection certificate. Again
the SC overruled the decision, reiterating the principles regarding the
limited scope of review46.
Another instance where the High Court substituted the quantum of
punishment with what it thought fit is Sachanlakshri and Another v. Vijay
Kumar Raghuvir Prasad Mehta and Another47. In this case, a school teacher
was terminated when he was found to have forged his service record from
previous school. He appealed to the Tribunal, which took a lenient view
and awarded punishment of stoppage of one increment. The school filed a
writ petition in the High Court. The High Court upheld the decision of the
tribunal and held that the punishment is disproportional so, instead of one
increment, it ordered the stoppage of two increments as punishment.
45
AIR 2002 SC 1801
46
The view that errors of fact, could not be corrected by High Courts acting in its supervisory jurisdiction
was concretized by Lord Summer in The King v. Nat Ball Liquor Ltd. (1922)2 AC 128; The same view has
also been followed by the Indian Supreme Court in number of cases : Nagendra Nath Bohra v. Comm. Of
Hills, Div. & Appeal, Assam AIR 1958 SC 398
47
AIR 1999 SC 578

40
Again, the Supreme Court overruled the High Courts decision, because it
erred in substituting the decision itself.
2.) Courts misapplying the existing principles – The principles of
illegality, irrationality, impropriety and proportionality are to be looked
into while deciding whether the courts have the power to interfere in a
case or not. There are however recent instances where the courts have
blatantly overlooked them.
The Supreme Court completely overlooked the principle of
proportionality in Regional Manager, UPSRTC, Etawah and ors. v. Hotilal
and Another48. In this case, a bus conductor had allowed certain people to
travel ticket less and was caught through a superior check by the
inspector. An inquiry was held against him and his offence was proved,
for which his service was terminated. He filed a writ petition against the
same in the High Court, which quashed the termination on the ground of
proportionality, stating that the resulting loss to State was a meager Rs.
16/- which could be imposed as penalty on the wrongdoer, instead of
terminating him. The SC on the other hand, while holding that the
termination was proportional to the offence, stated that High Court had no
right of interfering without stating reasons for the same (which is in fact
laid down clearly). This is a prima facie case of court not applying the
principles when it should have applied.
Another case of not applying proportionality with regards to
punishment was Kailash Nath Gupta v. Enquiry Officer (R.K. Rai),

48
AIR 2000 SC 1462
41
Allahbad Bank and Ors.49 . Here, the employees service was terminated
because he caused misappropriation if the sum of Rs. 46000/-, that too
because of certain misunderstanding on his part. But otherwise the
employee had a clear record for 28 years. High Court found the
termination to be proportional, a decision thankfully rectified by the
Supreme Court.
3.) Courts ignoring the existing principles and interfering on its own
considerations-A recent example in this regard would be Allahbad
Development Authority v. Sabia Khan and others50. In this case, the
legality of certain charges of the Development Authority was challenged.
Here High Court Innovatively decided that it had a power to interfere
because it was high time that the rampant corruption in municipal
authorities be checked. Such a consideration is completely out of context
and Supreme Court upheld the same while rebuking the HC for going
beyond its power of review. Another such instance of courts devising
grounds for interference would be the case of Municipal Corporation,
Faridabad v. Sri Niwas51. In this case, the respondent was a tubewell
operator and he claimed retrenchment for, he had worked for 240 days in
the past 12 months, as was mandatory. However, the Municipal
Corporation claimed that he had worked only for 136 days and had not
granted the retrenchment. He appealed to the Tribunal which dismissed his
case, holding that he had worked only for 184 days. He then appealed to
the High Court. The H.C. then quashed the decision of the Tribunal solely
49
AIR 2003 SC 1377
50
2006(7) SCALE 313
51
2004(4) AWC 2847 (SC)
42
on the basis that the Municipal Corporation did not produce the required
muster rolls (which were not produced by either of the parties) and hence
an adverse inference was to be drawn against the Corporation. It is
submitted that the Courts interfere with the decision of a Tribunal on the
basis of an adverse inference. Such was also the opinion of Supreme Court
while overturning the High Court’s decision.
4.) Courts not interfering when it is supposed to – The flip side of over
interfering and substituting the decision with its own decision, is when the
courts refuse to interfere when it is required under the limited scope of
judicial review to interfere. Such check through judicial review is vital so
that the edifice of rule of law is not shattered, and should not be given
away, as is sadly noticed, increasingly. It can be noticed here, that more
than High Courts, the Supreme Court has many a time failed to interfere
when it should have.
In Delhi Development Authority and another v. UEE Electricals and
Engg(Pvt)Ltd.52, the respondent was firstly awarded a tender by the DDA.
However, due to a previous fight between the director of the respondent
company and the employees of DDA, the DDA informed the Authorizing
body that it wished to cancel the tender. The body issued the show cause
notice to the company, but before the notice reached the respondents, the
tender was awarded to the party. The High Court awarded damages to the
respondent company while not quashing the grant of the new tender,
which, it is submitted was within the scope of Judicial Review. However,
the Supreme Court upheld the decision of awarding it to the second
52
AIR 2004 SC 2100
43
bidder, because it felt that there was no arbitrariness or malafide on the
part of the Authority. However, it is submitted that it completely
overlooked the applicability of the natural justice principle of audi alteram
partem53.
Similarly in Krishna Mohan Shukla v. UOI and Others54, while dealing
with the arbitrary nature of compensation awarded by the welfare
commission to the Bhopal Gas tragedy victims, the Supreme Court
refused to entertain the petition, because it said that the victim should have
gone to the High Court first, and only then approached the Supreme
Court. Such self restraint, it is submitted, is neither prescribed by
principles of Judicial Review nor any specific statute and hence should not
be imposed while denying people their right.
The following case study helps us arrive at the conclusion, as has been
highlighted by Prof. Upendra Baxi55 that the principles of Administrative
Law, provide a scope for boundless manipulability which can be and are
used in the disadvantage of various disregarded interests.
The existence of such judicial arbitrariness is dangerous for the very fabric
of administrative justice in the country. Firstly, it undermines the very
legitimacy of having judicial review over administrative bodies and results
in tribulisation. Secondly, such ambiguity and fluidity in current decisions
encourages the same in future decisions, basing it on them. Thirdly, it

53
Ridge v. Baldwin (1964) AC 40; UOI v. Tarachand Gupta (1971)1 SCC 486
54
Jt. 2000(1) AC 447
55
The Myth & Reality of Indian Administrative Law, Introduced by Upendra Baxi in Administrative
Law (I.P. Massey), 7th Ed. 2008

44
discourages people to come to the court with specific grievances, and
makes impotent the judicial weapon of review, so essential for the survival
of rule of law.
While devising solution for the same, some eminent scholars have
suggested the codification of Administrative Law principles. But it is
humbly submitted that such a step is futile and also impossible. It is
impossible and undesirable to codify a body of law, which is evolutionary
in its character and ever expanding its scope. And also even if such
codification is undertaken, it is the application of such codified rules that
creates the problem and would still be problematic, regardless of the
concrete or liquid form of the principles.
A constant vigil is the only weapon while fighting judicial arbitrariness
which is increasingly replacing administrative arbitrariness.
It is true that the courts have the wide powers of judicial review of
constitutional and statutory provisions. These powers, however, must be
exercised with great caution and self-control. The courts should not step
out of the limits of their legitimate powers of the judicial review. The
parameters of judicial review of Constitutional provisions and statutory
provisions are totally different. In J.P. Bansal v. State of Rajasthan56 , the
Supreme Court observed: “it is true that this court in interpreting the
constitution enjoys the freedom which is not available in interpreting a
statute. It endangers continued public interest in the impartiality of the
judiciary, which is essential to the continuance of rule of law, if judges,
under guise of interpretation, provide their own preferred amendments to
56
(2003)3 SCALE 154
45
statutes which experience of their operation has shown to have had
consequences that members of the court before whom the matters come
considered to be injurious to public interest where the words are clear,
there is no obscurity, there is no ambiguity and the intention of the
legislature is clearly conveyed, there is no scope for the court to innovate
or to take upon itself the task of amending or altering the statutory
provisions. In that situation the judge should not proclaim that they are
playing the role of Law-maker merely for an exhibition of judicial velour.
They have to remember that there is a line, though thin, which separates
adjudication from legislation. That line should not be crossed or erased;
this can be vouchsafed by an alert recognition of the necessity not to cross
it and instinctive, as well as trained reluctance to do so.”
In case the court forgets to appreciate this judicial wisdom, it would
undermine the constitutional mandate and will disturb the equilibrium
between three sovereign organs of the constitution. In State (Government of
NCT of Delhi) v. Prem Raj57, the Supreme Court took a serious note of this
disturbing exercise when the High Court commuted the sentence by
transgressing its limits. The Court observed:“The power of commutation
exclusively vests with the appropriate government. The appropriate
government means the Central Government in cases where the sentence or
order relates to a matter to which the executive power of union extends,
and the State Government in other cases. Thus, the order of the High Court
is set aside.”

57
(2003)7 SCC 121

46
Similarly, in Syed T.A. Haqshbandi v. State of J&K , the Supreme Court
observed: “Judicial Review is permissible only to the extent of finding
whether the process in reaching the decision has been observed correctly
and not the decision itself, as such. Critical or independent analysis or
appraisal of the materials by the court exercising powers of judicial review
unlike the case of an appellate court would neither be permissible nor
conducive to the interests of either the officer concerned or the system and
institutions. Grievances must be sufficiently substantiated to have firm or
concrete basis on properly established facts and further proved to be well
justified in law, for being countenanced by the court in exercise of its
powers of judicial review. Unless the exercise of power is shown to
violate any other provision of the Constitution of India or any of the
statutory rules, the same cannot be challenged by making it a justiciable
issue before the court”. The courts are further required not to interfere in
policy matters and political questions unless it is absolutely essential to do
so. Even then also the courts can interfere on selective grounds only. In
P.U.C.L. v. UOI58, the Supreme Court observed: This court can not go
into and examine the need of Prevention of Terrorism Act. It is a matter of
policy. Once legislation is passed, the government has an obligation to
exercise all available options to prevent terrorism within the bounds of the
Constitution. Moreover, mere possibility of abuse can not be counted as a
ground for denying the vesting of powers or for declaring a statute
unconstitutional”.
58
(2003)10 SCALE 967

47
The expansion of the horizon of the judicial review is seen both with
reverence and suspicion; reverence in as much as the judicial review is a
creative element of interpretation, which serves as an omnipresent
(widespread) and potentially omnipotent (having total power) check on
the legislative and executive branches of government. But at the same
time there is a danger that they may trespass into the powers given to the
legislature and the executive. One may say that if there is any limitation on
judicial review other than constitutional and procedural that is a product of
judicial self restraint. As Jt. Dwivedi empathically observed, “Structural
socio-political value choices involve a complex and complicated political
process. This court is hardly fitted for performing that function. In the
absence of any explicit constitutional norms and for want of complete
evidence, the Court’s structural value choices will be largely subjective.
Our personal predilections will unavoidably enter into the scale and give
color to our judgment. Subjectivism is calculated to undermine legal
certainty, an essential element of rule of law59.
The above observations also reveal another assumption to support an
attitude of self-restraint, viz., and the element subjective ness in judicial
decision on issues having socio-political significance. When one looks at
the decisions of the Supreme Court on certain questions of fundamental
issues of constitutional law one can see that there is a sharp division
among the judges of the apex court on such basic questions of powers of

59
Kesvananda Bharti v. State of Kerala; AIR 1973 SC1461

48
the Parliament to amend the constitution, federal relations, powers of the
President etc. This aptly demonstrates the observation of the judge.
This would mean that though there has been expansion of power of
judicial review one cannot also say that this cannot be overturned. Judicial
self-restrain in relation to legislative power manifests (clear & obvious)
itself in the form that there is a presumption of constitutionality when the
validity of the statute is challenged. In the words of Fazal Ali, “the
presumption is always in favour of the constitutionality of an enactment,
and the burden is upon him who attacks it to show that there has been a
clear transgression of the constitutional principles”60.
In applying the presumption of constitutionality the courts sometime apply
an interpretational device called ‘reading down’. The essence of the
device is that “if certain provisions of law construed in one way would
make them consistent with the constitution, and another interpretation
would render them unconstitutional, the court would lean in favour of the
former construction”61. But all this depends on the outlook and values of
the judge. When it comes judicial review of administrative action through
the presumption of validity is not as strong in the case of administrative
actions as in the case of statutes, still, when the legislature expressly leaves
a matter to the direction of an administrative authority the courts have
adopted an attitude of restraint. They have said we cannot question the
legality of the exercise of discretionary power. Unless & until it is an
abuse of discretionary power (which includes mala fide exercise of power,
60
Charanjit Lal v. UOI; AIR 1951 SC 41
61
Per Sinha C.J. in Kedar Nath v. State of Bihar, AIR 1962 SC 955

49
exercising the power of an improper motive, decisions based on irrelevant
considerations or in disregard of relevant consideration, and in some case
unreasonable exercise of power) and non-exercise of discretion (which
come when power is exercised without proper delegation and when it is
acted under dictation).
The relevant considerations which should make the judicial choice in
favour of activism or restraint are the policy and scheme of the statute, the
object of conferring discretionary power, the nature and the scope of the
discretion, and finally, the nature of the rights and the interests affected by
the decision. Any impulsive move to activism without a serious
consideration of these factors may only be viewed as undesirable. Judicial
activism, being an exception, not the general rule, in relation to the control
of discretionary power, needs strong reason to justify it. In the absence of
such strong support of reasons the interventionist strategy may provoke
the other branches of government may retaliate and impose further
limitations on the scope of judicial review.
The judicial review has certain inherent limitations. It is suited more for
adjudication of disputes than for performing administrative functions. It is
for the executive to administer the law and the function of the judiciary is
to ensure that the government carries out its duty in accordance with the
provisions of the constitution62.
The duty of the court is to confine itself to the question of legality. It has
to consider whether a decision making authority exceeded its power,
committed an error, violated rules of natural justice reached a decision
62
S.R .Bommai v. UOI; G.B. Mahajan v. Jalgaon M.C., AIR 1991 SC 1153
50
which no reasonable man would have reached otherwise abused its
powers. Thought he court is not expected to act as a court of appeal,
nevertheless it can examine whether the decision-making process, was
reasonable, rational not arbitrary or not violative of Article 14 of the
constitution. The parameters of judicial review must be clearly defined
and never exceeded. If the authority has faltered in its wisdom, the court
cannot act as super auditor63.
Unless the order passed by an administrative authority is unlawful or
unconstitutional, power of judicial review cannot be exercised. An order
of administration may be right or wrong. It is the administrator’s right to
trial and error so long as it is bona fide and within the limits of the
authority, no interference is called for. In short, power of judicial review is
supervisory in nature. Unless this restriction is observed, the court, under
the guise of preventing abuse of power by the administrative authority,
will itself be guilty of usurping power.
Bernard Schwartz rightly observed: “If the scope of review is too
broad, agencies are turned into little more than media for the transmission
of cases to the courts. That would destroy the values of agencies created to
secure the benefit of special knowledge acquired through continuous
administration in complicated fields. At the same time, the scope of
judicial enquiry must not be so restricted that it prevents full inquiry into
the question of legality. If that question cannot be properly explored by the
judge, the right to review becomes meaningless. It makes judicial review
63
FertilizerCorporation Kamgar Union v. UOI AIR 1981 SC 344

51
of administrative orders a hopeless formality for the litigant It reduces the
judicial process in such cases to a mere feint”.

52
Chapter.2
JUDICIAL REVIEW OF ADMINISTRATIVE ACTION IN INDIA

GROUNDS:
Judicial review is central in dealing with the malignancy in the exercise of
administrative power. Outsourcing of legislative and adjudicatory powers
to the administrative authorities as an imperative of modern system of
governance has brought the law of judicial review of administrative action
in prime focus. Law dealing with judicial review of administrative action
is largely judge-induced and judge-led; consequently thickets of
technicalities and inconsistencies surround it. Anyone who surveys the
spectrum of judicial review finds that the fundamentals on which courts
base their decisions include Rule of law, administrative efficiency,
fairness and accountability. These fundamentals are necessary for making
administrative action ‘people-centric’. Courts have generally exhibited a
sense of self-restraint where judicially manageable standards do not exist
for judicial intervention64. However, “self-restraint” is not the absence or
lack of power of judicial review. Courts have not hesitated, in exceptional
situations, even to review policy matters and subjective satisfaction of the
executive.

64
Essar Oil Ltd. v. Halar Utkarsh Samiti, (2004)2 SCC 392; N.D. Jayal v. UOI, (2004)9 SCC 362;
Hira Tikoo v. UT Chd, (2004)6 SCC 765; State of Karnataka v. Dr. Parveen Bhai Togadia, (2004)4
SCC 684; E.V. Chinnaiah v. State of A.P., (2005)1 SCC 394

53
Generally, judicial review of any administrative action can be exercised
on four grounds:
I. Illegality

II. Irrationality

III. Procedural Impropriety/ Fairness

IV. Proportionality.

These grounds of judicial review were developed by the Lord Diplock in


Council of Civil Services Union v. Minister of Civil Services65. Though these
grounds of judicial review are not exhaustive and cannot be put in water tight
compartments yet these provide sufficient base for the courts to exercise their
review jurisdiction over administrative action in the interest of efficiency,
fairness and accountability.
I. Illegality – decision makers must understand the law that
regulate them. If they fail to follow the law properly, their
decision, action or failure to act will be illegal. Thus an action or
decision may be illegal on the basis that the public body has no
power to take that action or decision, or has acted beyond its
powers. This arises, for example when the legislation relating to
a public body does not include the necessary power nor have
precise limits or when the power can be used. Public bodies

65
(1984)3 All ER 935(HL); (9185) AC 374 (CCSU Rules)
54
acting illegally in this way can be described as acting “ultra
vires” (which means beyond or outside their powers).
Sometime legislation allows the exercise of a wide and seemingly
unrestrained discretion by the public body, or provides that a duty should
be discharged in certain circumstances, but does not prescribe a particular
process for determining whether those circumstances arise in an individual
case. Here, illegality can occur where the action, failure to act or decision
in question in question violate the public law principles set down by the
courts for processes of this kind. These principles require public bodies to:
A. take into account relevant information (and to assign the
appropriate amount of weight to such information), and to
ignore irrelevant information; Ask the right questions and to
undertake sufficient enquiry, for example by addressing the
right issue and taking reasonable steps to obtain the information
on which a proper decision can be based.
B. not to delegate a decision for which they are exclusively
responsible, and that therefore only they can make-allowing
another person to take a decision for them, means that they are
giving their power away and fail to be properly accountable.
C. Ensure that they have not fettered their discretion by for
example applying a very rigid policy as if it were legislation.
D. Comply with the Human Rights At by acting compatibilities
with the convention, so far as it is possible for them to do so.
So, all the decisions or actions taken should be within the scope of the
relevant statutory (or occasionally non-statutory) legal powers. Many
55
administrative decisions require decision-makers to consider the scope of
their legal powers, as well as assessing the facts of each case. Many
decisions also require the exercise of discretion.
II. Irrationality – The courts may also intervene to quash a
decision if they consider it to be so demonstrably unreasonable
as to constitute ‘irrationality’ or ‘perversity’ on the part of the
decision maker. The benchmark decision on this principle of
judicial review was made as long ago as 1948 in the Wednesbury
case:
“If a decision on a competent matter is so unreasonable that no reasonable
authority could ever have come to it, then the courts can interfere but to
prove a case of that kind would require something
o v e r w h e l m i n g .”
It is important to note that this ground of review does not give judges
much opportunity to review the merits of administrative decisions as the
ground has a high threshold for judicial intervention which is rarely
satisfied. The ground is directed at extremes of administrative behavior.
Lord Greene in the Wednesbury case stated that for review to be successful
on this ground the administrative decision taken must be something so
absurd that no sensible person could ever dream that it laid within the
powers of the authority.
III. Procedural Impropriety – Decision makers must act fairly in
reaching their decisions. This principle applies solely to matters
of procedure, as opposed to considering the substance of the
decision reached. The case must be heard and decided by the
56
person to whom it is delegated and not by another. The process
to arrive at some decision must be followed as it is expressed in
the statute. The rule of natural justice must be applied by the
deciding authority. The rules to be followed are:
A. “a man must not be judge in his own case” &

B. “hear the other side”.

IV. Proportionality - This principle provides that the means for


achieving some object ought to be sufficient but not exercise for
the purpose of achieving that object. Under this principle, the
court will see that the legislature and administrative authority
maintain a proper balance between the adverse effects which the
legislation or the administrative order may have on the rights
liberties or interests of persons keeping in mind the purpose for
which they were intended to serve.

NATURAL JUSTICE – HABITAT OF JUDICIAL REVIEW

Principles of natural justice which are judge made rules are still continue
to be a classical example of judicial activism were developed by the courts
to prevent accidents in the exercise of outsourced power of adjudication to
the administrative authorities. In India, there is no statute laying down the
minimum procedure which administrative agencies must follow while
exercising decision-making power. There is, therefore, a bewildering
variety of administrative procedure. Sometimes the statute under which
the administrative agency exercise power lays down the procedure which
57
the administrative agency must follow but at times the administrative
agency is left free to devise its own procedure. The question whether in
particular case principles of natural justice have been contravened or not is
a matter for the courts to decide from case to case66. However, courts have
always instated that the administrative agencies must follow a minimum
of fair procedure. This minimum fair procedure refers to the principles of
natural justice. So, with all its vagueness and flexibility, its two elements
have been generally accepted, viz.
i) That the body in question should be free from bias, and
ii) That it should here the person affected before it decides the matters.

Rules of Natural Justice have developed with the growth of civilization


and the content thereof is often considered as a proper measure of the
level of civilization and Rule of Law prevailing in the community. Natural
Justice is another name for common sense justice. Rules of natural justice
are not codified canons. These are the principles ingrained in the
conscience of man. Justice is based substantially on natural ideals and
values which are universal.

The Supreme Court has observed that the principles of natural justice have
undergone a sea change and it is now settled that complainant must show
that he has suffered from real prejudice. It is not applied in a vacuum
without reference to the relevant facts. It is no unruly horse nor could it be
put in a strait jacket formula. A decision will be vitiated where no hearing

66
A.K. Roy v. UOI, AIR 1982 SC 709
58
is given at all and nor where the infringement is technical67

For some three or four hundred years, Anglo – American courts have
actively applied two principles of natural justice. However, this reduction
of the concept of natural justice to only two principles should not be
allowed to obscure the fact that natural justice goes to “the very kernel of
the problem of administrative justice”68 . These two principles are:
i. Nemo in propria causa judex, esse debet – No one
should be made a judge in his own cause, or the rule
against bias.
ii. Audi alteram partem – Hear the other party, or the
rule of fair hearing, or the rule that no one should be
condemned unheard.

Rule against Bias –


The first principle means that the adjudicator should be disinterested and
unbiased; that the prosecutor himself should not be a judge; that the judge
should be a neutral and disinterested person; that a person should not be a
judge in his own cause; that a person interested in one of the parties to the
dispute should not, even formally, take part, in the adjudicatory
proceeding. ‘Bias’ means an operative prejudice, whether conscious or

67
P.D. Agarwal v. SBI (2006)8 SCC 776; AIR 2006 SC 2064

68
Wade, H.W.R., Administrative Law, (1967) pg. 154

59
unconscious, in relation to a party or issue. Such operative prejudice may
be the result of a preconceived opinion or a predisposition or a
predetermination to decide a case in a particular manner, so much so that it
does not leave the mind open. In other words ‘Bias’ may be generally
defined as partiality or preference which is not founded on reason and is
actuated by self interest – whether pecuniary or personal.
The all important Kraipak case may also be noted here. In a selection board
for certain posts, a member was himself a candidate who was selected
along with a few others. On a challenge by the candidates not selected, the
Supreme Court quashed the list of successful candidates on the ground of
bias in so far as a person personally interested in the matter sat on the
selection committee. Similarly, selection of a candidate was quashed
because his son-in-law was a member of the selection committee.69

Fair Hearing –
This is the second long arm of natural justice which protects the ‘little
man’ from arbitrary administrative actions whenever his right to person or
property is jeopardized. Thus one of the objectives of giving a hearing in
application of the principles of natural justice is to see that an illegal
action or decision does not take place. Any wrong order may adversely
affect a person and it is essentially for this reason that a reasonable
opportunity may have to be granted before passing an administrative
order. That no one should be condemned unheard is an important maxim

69
D.K. Khanna v. UOI, AIR 1973 HP 30; Also see S.P. Kapoor v. State of H.P., AIR 1981 SC 2181;
(1981)4 SCC 716

60
of civilized jurisprudence. But the court will not strike down an order
merely because the order has been passed against the petitioner in breach
of natural justice. It would be justified in refusing to do so if such striking
down would result in restoration of another order passed earlier in favor of
the petitioner and against the opposite party in violation of principle of
natural justice or is otherwise not in accordance with law.
The right of fair hearing does not necessarily include an oral hearing.
What is essential is that the party affected should not be given sufficient
opportunity to meet the case against him and this could be achieved by
filing written representations70. The party concerned should have adequate
notice of the case against him which he has to meet, and that the party
affected should be appraised of the evidence on which the case against him
is based and be given opportunity to rebut these materials.
Doctrine of Promissory Estoppel –
Promissory or equitable estoppel has been developed by the courts for the
purpose of ensuring that a party is faithful to a promise or representation
made to another party who relies upon this promise or representation. This
intervention by them prevents the party relying upon the promise from
injustice if the promise or representation is not being fulfilled. The core of
the doctrine is ‘faith of the people’ in governance which has assumed
tremendous importance in this era of global economy. Estoppel is a rule
whereby a party is precluded from denying the existence of some state of
facts which he had previously asserted and on which the other party has

70
M.P. Industeries v. UOI,AIR 1966 SC 671

61
relied or is entitled to rely on. Its need arose because the rigid adherence to
the common law principle requiring all contracts to be accompanied by
consideration led to several unjust outcomes. This led to the development
of a principle in the equity such that under certain circumstances parties
could be held to promises which were accompanied by consideration. This
is the principle of equitable estoppel. This doctrine of promissory estoppel
has been evolved by courts, on the principle of equity, to avoid injustice. A
person who himself misled the authority by making a false statement, can
not invoke this principle.
The principle of estoppel in India is a rule of evidence incorporated in
Sec.115 of the India Evidence Act, 1872. The section reads as follows:
“When one person has, by his declaration, act or omission, intentionally
caused or permitted another person to believe such a thing to be true and to
act upon such belief, neither he nor his representative, to deny the truth of
that thing.”
However, even where the case does now fall under section 115,
promissory estoppel can still be invoked. This doctrine is now well
established in the field of administrative law71. Because the section talks
about (Sec. 115) representations made as to existing facts whereas
promissory estoppel deals with further promises. A man should keep his
words, all the more so when the promise is not a bare promise but is made
with the intention that the other party should act upon it.
Doctrine of Legitimate Expectation –
71
Sharma Transport v. Govt. of A.P., (2002)2 SCC188

62
The doctrine of legitimate expectation belongs to the domain of public law
and is intended to give relief to the people when they are not able to
justify their claims on the basis of law in the strict sense of the term
though they had suffered civil consequences because their legitimate
expectation had been violated72.
The principles of natural justice have enriched law and constitutions the
world over. Article 14 of the Indian Constitution applies not only to
discriminatory class legislation but also to arbitrary or discriminatory class
legislation but also to arbitrary or discriminatory State action, because
violation of natural justice is violation of equality clause of Article 1473.
Principles of natural justice are judge made rules and still continue to be a
classical example of judicial activism. These principles are attracted
whenever a person suffers a civil consequences or a prejudice is caused to
him by any administrative action. Loss of ‘Legitimate Expectation’ also
attracts the principles of natural justice.
The judiciary plays very important role as a protector of the constitutional
values that the founding fathers have given us. They try to undo the harm
that is being done by the administrative action. All this is possible thanks
to the power of judicial review. It is the significance of judicial review, to
ensure that the democracy is inclusive and that there is accountability of
everyone who wields or exercise public power.
The Doctrine of Legitimate Expectation is a recent creation of the

72
Clerk, R., In Pursuit of Fair Justice, AIR 1996(J)11
73
Satyavir Singh v. UOI, AIR 1986 SC 555

63
decisional law. It forms part of a judicial strategy to exclude the
possibility of arbitrary administrative actions. The theory of legitimate
expectation is a branch of administrative law. It is the newest entrant to
long list of concepts introduced by the courts for the review of
administrative action. This doctrine is one of the finest examples of
judicial creativity. Legitimate expectation applies the principles of fairness
and reasonableness to a situation where a person has an expectation or
interest in a public body or private parties retaining a long-standing
practice or keeping a promise.
Doctrine of Proportionality-
Proportionality means that the administrative action should not be more
drastic than it ought to be for obtaining desired result. This implies that
cannon should not be used to shoot a sparrow. This doctrine tries to
balance means with ends. Proportionality shares space with
‘reasonableness’ and courts while exercising power of review sees, ‘is it a
course of action that could have been reasonably followed’. Courts in
India have been following this doctrine for a long time but English Courts
have started using this doctrine in administrative law after the passing of
the Human Rights Act, 1998.
‘Doctrine of Proportionality’ is a theory, which has great practical and
social significance in India. The said doctrine originated as far back as in
the 19th century in Russia & was later adopted by Germany, France and
other European countries. By Proportionality, it is meant that the question
whether while regulating the exercise of fundamental rights, the

64
appropriate or least restrictive choice of measures has been made by the
legislature or the administrator so as to achieve to achieve the object of the
legislation or the purpose of the administrative order, as the case may be,
under the principle, the court will see that the legislature and
administrative authority maintain a proper balance between the adverse
effects which the legislation or the administrative order may have on the
rights, liberties or interests of persons keeping in mind the purpose for
which they were intended to serve. Through the use of this doctrine court
would not allow administration to use a sledge-hammer to crack a nut
where a pairing knife would suffice. Thus it is a principle where courts
would examine priorities and processes of the administration for reaching a
decision or recalling a decision. However, courts have always tried to
temper this doctrine with the doctrine of ‘flexibility’74.
Proportionality is “concerned with the way in which the decision-maker
has ordered his priorities, the very essence of decision-making consists in
the attribution of relative importance to the factors in the case”. In the
Human Rights context, proportionality involves a ‘balancing test’ and the
‘necessity test’. The former scrutinizes exercises and onerous penalties or
infringement of rights or interest whereas the latter takes into account
other less restrictive alternatives75.

Doctrine of Public Accountability –


Accountability simply means that if a public officer abuses his office,

74
Coimbatore Distt. Central Coop. Bank v. Employee’s Association, (2007)4 SCC 669
75
UOI v. G.Ganayatham, (1997)7 SCC 463

65
either by an act of omission or commission, and in consequence of that
there is an injury to an individual or the public at large, he must be held
responsible for it. Once a top bureaucrat casually remarked that the main
the main problems of administration in India are:
(i) Faulty planning,
(ii) corrupt execution,
(iii) Absence of public accountability.
No one would perhaps disagree with this statement. Out of these three
problems, public accountability is basic, in the sense that if the guilty are
punished quickly and adequately, it will take care of the other two
problems. Unfortunately, today the procedure of accountability are either
non-existent or are very feeble and fragile, besides being dilatory and any
person with sufficient money power or personal connection can bend them
in any manner he likes. When it comes to accountability, the system, as it
exists today at different levels, proves to be so strong and powerful that it
defeats every real attempt in this direction. In other words, the politico-
bureaucratic wall proves so strong that it defeats all possible attempts at
enforcing liability. Therefore, in the name of enforcing liability, what one
sees is merely shadow-boxing. The manner in which the Central Vigilance
Commission Ordinance pulled down the directives of the Apex Court is a
pointer in that direction. It is for this reason alone that the Lokpal Bill has
failed in its every attempt since 1968 to see the light of the day.
Doctrine of Public Accountability is one of the most important emerging
facets of administrative law in recent times. The basic purpose of the
66
emergence of this doctrine is to check the growing misuse of power by the
administration and to provide speedy relief to the victims of such exercise
of power. The doctrine is based on the premise that the power in the hands
of administrative authorities is a public trust which must be exercised in
the best interest of the people. Therefore, the trustee (public servant) who
enriches himself by corrupt means holds the property acquired by him as a
constructive trustee.
The celebrated decision of the Privy Council in A.G. of Hong Kong v.
Reid76 has greatly widened the scope of this principle of jurisprudence in
public law adjudication. Lord Templeman observed that engaging in
bribery is an evil practice which threatens the foundations of any civilized
society and that any benefit obtained by a fiduciary through he breach of
duty belongs in equity to the beneficiary (the State), is the basic norm
subject to which all legal principles require to be interpreted.

Relevance of Judicial Review of Administrative Action


Judicial Review of administrative action, in a sense, is the heart of
administrative law. It is certainly the most appropriate method of inquiring
into the legal competence of a public authority. The aspects of an official
decision or an administrative act that may be scrutinized by the judicial
process are the competence of the public authority, the extent of a public
authority’s legal powers, the adequacy and fairness of the procedure, the
evidence considered in arriving at the administrative decision and the

76
(1993)3 WLR 1143
67
motives underlying it, and the nature and scope of the discretionary power.
An administrative act or decision can be invalidated on any of these
grounds if the reviewing court or tribunal has a sufficiently wide
jurisdiction. There is also the question of responsibility for damage caused
by the public authority in the performance of its functions. Judicial Review
is less effective as a method of inquiring into the wisdom, expediency or
reasonableness of administrative acts and courts and tribunals are
unwilling to substitute their own decisions for that of the responsible
authority.
It is of course impractical to subject every administrative act or decision to
investigation, for this would entail unacceptable delay. The complainant
must, therefore, always make out a prima facie case that
maladministration has occurred.
In judicial review of administration at a national level, a country’s history,
politics and constitutional theory all play their part. There are broadly,
three major systems: the Common law model; the French, or council of
State, model; and the procurator model. The role model for governance and
decision taken thereon should manifest equity, fair play and justice. The
cardinal principle of governance in a civilized society based on rule of law
not only has to base on transparency but also must create an impression
that the decision making was motivated on the consideration of probity.
The government has to rise above the nexus of vested interests and
nepotism and eschew window-dressing. The act of governance has to be
tested on the touchstone of justice, equity and fair play. Though on the

68
face of it the decision may look legitimate but as a matter of fact the
reasons may not be based on values but to achieve popular accolade that
decision can not be allowed to operate77. The Constitution of India
envisages separation of power between the three organs of the
Constitution so that the working of the Constitution may not be hampered
or jeopardized. This thin and fine line of distinction should never be
ignored and transgressed upon by any of the organ of the Constitution,
including the judiciary. The rigid perception and practice can be given a
go by in cases of ‘abdication of duties’ by one of the organs of the
Constitution. Thus, the judiciary can interfere if there is an abdication of
duties by legislature or the executive. For instance, if the Legislature
delegates its essential and constitutional functions to the executive, it
would amount to ‘excessive delegation’ and hence abdication of the
legislative functions by the legislature. In such cases, the theory of
separation of powers would not come in the way of judiciary while
exercising the power of judicial review. This is more so, when the
constitution-makers have conferred the important sovereign function of
interpretation of the constitution and various statutes upon the judiciary.
The Constitutional courts can even scrutinize the working of the lower
courts besides analyzing legislative and executive actions. The Superior
Courts, like Supreme Court and the High courts, can issue various writs to
control the functioning of lower judiciary. Besides, the High court has

77
Onkarlal Bajaj v. UOI, AIR 2003 SC 2562

69
supervisory jurisdiction over the lower courts. However, the High courts
can not issue a writ against another High court. Similarly, the decision of
the High court or the Supreme Court can not be questioned by way of writ
proceeding. Thus, a final decision of the Supreme Court can not be
questioned under Article 32 of the Constitution of India, except by way of
review petition. The Supreme court in Rupa Ashok Hurra v. Ashok Hurra78
has judicially created an exception to this rule in the form of a ‘curative
petition’. Thus, a curative petition can be filed before the Supreme Court
under Article 32 in appropriate cases. The Supreme Court only in
exceptional cases would exercise this power. This fantastic judicial
innovation is based on the premises that no person should suffer due to the
mistake of the court. Similarly, an order passed by the court without
jurisdiction is a nullity and any action taken pursuant thereto would also be
nullity.
The power to entertain a curative petition is not specifically conferred by
the Constitution but can be exercised by the apex court under its inherent
powers. This means that the Constitution is organic and living in nature. It
is also well settled that the interpretation of the Constitution of India or
statutes would change from time to time. Being a living organ, it is
ongoing and with the passage of time, law must change. New rights may
have to be found within the constitutional scheme.
The above discussion unerringly points towards the permissibility and
democratic nature of judicial review in India. The judicial review in India

78
(2002)4 SCC 388
70
is absolutely essential and not democratic because the judiciary while
interpreting the constitution or the other statutes is expressing the will of
the people of India as a whole who have reposed absolute faith and
confidence in the Indian Judiciary. If the judiciary interprets the
constitution in its true spirit and the same goes against the ideology and
notions of the ruling political party, then we must not forget that the
constitution of India reflects the will of the people of India at large as the
will of the people who are represented for the time being by the ruling
party. If we can appreciate this reality, then all arguments against the
democratic nature of the judicial review would vanish. The judicial review
would be undemocratic only if the judiciary ignores the concept of
separation of powers and indulges in ‘unnecessary and undeserving
judicial activism’. The judiciary must not forget its role of being an
interpreter and should not undertake and venture into the task of law-
making, unless the situation demands so. The judiciary must also not
ignore the self imposed restrictions, which have now acquired a status of
‘prudent judicial norm and behavior’. If, the Indian judiciary takes these
two ‘precautions’, then, it has the privilege of being, the ‘most democratic
judicial institution in the world, representing the biggest democracy of the
world’.

71
Chapter.3
CONSTITUIONAL FRAME WORK FOR JUDICIAL REVIEW OF
ADMINISTRATIVE ACTION IN INDIA.

JUDICIAL REVIEW AS A PART OF BASIC STRUCTURE

In the celebrated case of Kesvananda Bharti v. State of Kerala, the


Supreme Court of India had propounded the basic structure doctrine
according to which it said the legislature can amend the constitution, but it
should not change the basic structure of the constitution. The judges made
no attempt to define the basic structure of the constitution in clear terms.
S.M. Sikri, C.J. mentioned five basic features:
i) Supremacy of the constitution

ii) Republican and democratic form of government

iii) Secular character of the constitution

iv) Separation of powers between the legislature, the


executive and the judiciary
v) Federal character of the Constitution
He observed that these basic features are easily discernible not only from
the preamble but also from the whole scheme of the constitution. He
added that the structure was built on the basic foundation of dignity and
freedom of the individual which could not by any form of amendment be

72
destroyed. It was also observed in that case that the above are only
illustrative and not exhaustive of all the limitations on the power of
amendment of the constitution. The constitutional bench in Indira Nehru
Gandhi v. Raj Narain79 held that judicial review in election disputes was
not a compulsion as it is not a part of basic structure. In S.P. Sampath
Kumar v. Union of India80 , P.N. Bhagwati, C.J. relying on Minerva Mills
Ltd.81 , declared that it was well settled that judicial review was a basic and
essential feature of the constitution. If the power of judicial review was
absolutely taken away, the constitution would cease to be what it was. In
Sampath Kumar the court further declared that if a law made under Article
323-A(1) were to exclude the jurisdiction of the High Court under article
226 & 227 without setting up an effective alternative institutional
mechanism or arrangement for judicial review, it would be violative of the
basic structure and hence outside the constituent power of parliament.
In L. Chandra Kumar v. Union of India82, a larger bench of seven judges
unequivocally declared: “that the power of judicial review over legislative
action vested in the High Courts under article 226 and in the Supreme
Court under article 32 of the Constitution is an integral and essential
feature of the constitution, constituting part of its basic structure”.
Though one does not deny that power to review is very important, at the
same time one cannot also give an absolute power to review and by
recognizing judicial review as apart of basic feature of the constitution.

79
(1975) SCC 1
80
(1987)1 SCC 124
81
(1980)3 SCC 625
82
(1997)3 SCC 261
73
Courts in India have given a different meaning to the theory of checks and
balance this also meant that it has buried the concept of separation of
power, where the judiciary will give itself an unfettered jurisdiction to
review anything that it does by the legislature.

POWER AND JURISDICTION OF SUPEREME COURT


Article 32: Writ Jurisdiction of Supreme Court
This provision, for the want of better purposive expression, is called as the
right to constitutional remedies‘ and confers express powers on the Supreme
Court to carry out the obligations declared under Art.13, that is, to act as a
protector of fundamental rights. It constitutes one of the major constitutional
safeguards against the state tyranny and can be said to confer ample scope for
judicial activism‘ on Supreme Court which is evident from a catena of
pronouncements made by it while giving a contemporary meaning to the
fundamental rights and thereby creating new rights and obligations from time
to time. The Supreme Court has described the significance of this provision in
Prem Chand Garg v. Excise Commissioner, U.P. as thus83
The Fundamental Right to move this court can therefore be appropriately
described as the cornerstone of the democratic edifice raised by the
Constitution. That is why it is natural that this court should itself as the
protector and guarantor of fundamental rights‘ declare that it cannot.
Consistently with the responsibility laid upon it, refuse to entertain
applications seeking protection against infringements of such rights in

83
AIR 1963 SC 996.
74
discharging the duties assigned to it, this court has to play the role of a
sentinel on the qui-vive‘ and it must always do it as its solemn duty to protect
the said fundamental rights zealously and vigilantly.
It guarantees right to move to the Supreme Court, by appropriate proceedings
for the enforcement of fundamental rights enumerated in the Constitution 84
and empowers the Supreme Court to issue appropriate orders or directions or
writs including writes in the nature of habeas corpus, mandamus, quo-
warranto, certiorari and Public Interest Litigations (PIL‘s) for the enforcement
of fundamental rights85. It also empowers the Parliament by law to empower
any other court to exercise within the limits of its territorial jurisdiction all or
any of the powers exercisable by the Supreme Court under Art.32(2). This can
however be done without prejudice to the Supreme Court‘s powers under
Art.32 (1) and 32(2)86 and it further declares that the right guaranteed by it
shall not be suspended except as otherwise provided under the Constitution‖.
Right of access to the Supreme Court under this provision is a fundamental
right per se providing a guaranteed, quick and summary remedy for enforcing
them as a person can straight away approach the Supreme Court without
having been undergone any dilatory process involved in the judicial hierarchy.
The Supreme Court enjoys a broad discretion in the matter of framing the
writes to suit the exigencies of a particular case. Apart from issuing writs as
discussed above, it can also issue any order including even a declaratory

84
Art.32(1)
85
Art.32(2)
86
Art.32(3) of the Constitution of India.
75
order, or give any direction, as may appear to it to be necessary to give proper
relief to the petitioner87.
Enforcement of fundamental rights under this provision permissibly includes
the judicial review of administrative, legislative and governmental action or
inaction. However, it cannot be invoked simply to adjudge the validity of any
legislation or an administrative action unless it adversely affects the
petitioner‘s fundamental rights88.The Supreme Court under this provision is
only confined to the infringement of fundamental rights and is not expected to
go into any other question89. In this event, once the court is satisfied that the
petitioner‘s fundamental right has been infringed, he need not establish either
that he has no other alternative remedy or that he has exhausted all other
remedies provided by law, but only has to satisfy the court that he has not
obtained proper redressal of his grievances. Similarly, recourse to the same is
not available to assail the correctness of a decision rendered by the apex court
on merits or to claim its reconsideration by it 90. While exercising review
power under this provision, the court also has power to decide the disputed
questions of facts arising in a writ petition if it so desires 91.
Being a fundamental right per se, this power cannot diluted or whittled down
by any law and can be invoked even when a law declares a particular
administrative action as final92. It offers plenary powers on the Supreme Court
which is not fettered by legal constraints. Even if the court commits a mistake

87
Kuchunni v. State of Madras AIR1959 SC 725.
88
Shantabhai v. State of Maharashtra AIR 1958 SC 532.
89
Khyerbari Tea CO. v. State of Assam AIR 1964 SC 925.
90
Mohd. Aslam v. Union of India AIR 1996 SC 1611.
91
P.Puneeth, ―Adminstrative Law‖ XLIII Annual Survey of Indian Law 5 (2007).
92
A.K.Gopalan v. State of Madras AIR 1950 SC 27.
76
in the exercise of these powers, the court has plenary powers to correct such
mistakes93. Such plenary powers enjoyed by the Supreme Court can be
illustrated by making a reference to Khatri v. State of Bihar94 where several
petitioners filed petitions under this provision for the enforcement of their
fundamental right under Art.21 on the allegation that they were made blind by
the police while in police custody. The daunting question that arose was
whether the court could order production of certain reports submitted by the
CID to the state government and certain correspondence amongst the
government officials. The government claimed that such material was
protected under Sections 162 and 172 of the Cr.P.C. Rejecting the said
contention, the court was of the opinion that proceedings under this provision
are neither inquiry‘ nor trial‘ for an offence and while exercising jurisdiction
under this provision, the apex court does not act as a criminal court‘.
The Constitution stands silent as to the procedure to be followed under this
provision. The Supreme Court in Bandhua Mukti Morcha v. Union of India 95
clarified that it is not bound under this provision to follow the ordinary
adversary procedure and may adopt such procedure as may be effective for
the enforcement of the fundamental rights.
Though this provision basically aims at empowering the apex court to guard
the infringement of fundamental rights, nevertheless it has been used for a
much wider purpose than what is expected, by laying down general guidelines
having the effect of law to fill the vacuum till such time the legislature steps

93
S.Nagaraj v. State of Karnataka (1993) Supp.(4) SCC 595.
94
AIR 1981 SC 1068.
95
AIR 1984 SC 802.
77
to fill in the gap by making the necessary law. The court has derived this
power by reading this provision with Art.141 and 14296.
The provision supplements enormity in judicial power since it empowers the
apex court, apart from issuing writs as discussed above, to make any order,
pass directions as it may consider appropriate to grant adequate relief to the
petitioners. It may also grant declaration or injunction as well if that be the
proper relief97 and can mould relief to meet the exigencies of specific
circumstance98. This is been made explicit in M.C.Mehta v. Union of India as
thus99: This court under Art.32(1) is free to devise any procedure appropriate
for the particular purpose of the proceeding namely, enforcement of a
fundamental right and has the implicit power to issue whatever direction,
orders or writ necessary in a given case, including all incidental or ancillary
power necessary to secure enforcement of the Fundamental Right.‖
However, in due course of time, the activism‘shown by the Supreme Court
has given a new dimension to Art. 32 and the court has implied there from the
power to award damages when a fundamental right of a person has been
infringed and there is no other suitable remedy available to give relief and
redress in the specific situation for the injury caused to the petitioner. While
doing so, the argument it has put forth is that under Art.32, its power is not
only injunctive in ambit, but is also remedial in scope and that in the absence
of such a power, the Article would be robbed of its entire efficacy, become

96
For further details VII.
97
Kuchunni v. State of Madras AIR 1959 SC 725.
98
Golak Nath v. State of Punjab 1967 (2) SCR 762.
99
AIR 1987 SC 1086 at 1091.
78
emasculated and weakened100. Similarly, in Rudul Shah v. State of Bihar 101the
court awarded damages to the petitioner against the State for breach of his
right of personal liberty guaranteed under Art.21 as he was kept in jail for 14
years even after his acquittal by a criminal court.
Since Rudul Shah, damages have been awarded in quite a few cases to the
victims themselves or their kith and kins for police brutality or harassment 102,
custodial deaths103, medical negligence104, environment pollution105, tortuous
acts of government servants106 thereby opening a new vista of compensatory
jurisprudence in exercise of this provision. The most prominent instance
amongst such cases was Bodhisatva Gautam v. Subhra Chakroborty 107, where
a raped woman was awarded an interim compensation by the court. The rapist
was directed to pay Rs.1000/- per month to the woman raped, pending the
criminal trial.

POWER AND JURISDICTION OF HIGH COURT


Article 226: Writ Jurisdiction of High Court
This provision signifies an essential aspect of Indian Constitution since it
confers writ jurisdiction on high courts as well, with a much wider scope as
compared to what is enjoyed by the Supreme Court under Articles 32.

100
Ibid.
101
AIR 1983 SC 1086.
102
D.K.Basu v. State of West Bengal AIR 1997 SC 3017.
103
PUCL v. Union of India (1997) 3 SCC 433.
104
Pashim Bangel Khet Mazdoor Samiti v. State of West Bengal AIR 1996 SC 2426.
105
M.C.Mehta v. Union of India (1987) 4 SCC 463.
106
Bhim Singh v. State of Jammu & Kashmir AIR 1986 SC 494.
107
AIR 1996 SC 922.
79
Consequently, it can possibly be understood in the sense of arming the
judiciary with enormous power to act in an activist‘manner.
It empowers the high court to issue directions, orders or writs including writs
in the nature of habeas corpus, mandamus, quo warranto and certiorari for the
enforcement of a fundamental right and certiorari for the enforcement of a
fundamental right and for any other purpose‘4108. The distinguishing feature
of this power is the extension of the writ jurisdiction of high courts for any
other purpose‘ in addition to fundamental rights. Such purposes may rightly
be understood as forming the actions of the state entities in various delegated
capacities. These words for any purpose‘ enable the high court to take
cognizance of any matter even if no fundamental right infringement is
involved. Since Indian Constitution does not favour the doctrine of separation
of powers‘ in strict sense, public authorities in India often exercise various
types of powers including executive, adjudicatory and legislative powers, for
which the rule of law‘ demands such a power to keep check on their malafide
and whimsical exercise thereby making the writ jurisdiction in India more
firm as compared to the English system.
It operates notwithstanding anything in Article 32 109 and enjoys an
independent constitutional existence unaffected by Art.32 and confers a
parallel writ jurisdiction on high courts for the enforcement of fundamental
rights with no derogation of Supreme Court‘s jurisdiction. It is advantageous
since its scope cannot be curtailed or whetted down even by legislation. Even
if the legislature declares the action or decision of an authority final and

108
Art.226 (1) of the Constitution of India.
109
Ibid.
80
ordinary jurisdiction of the courts is barred, the high court is still entitled to
exercise its writ jurisdiction which remains unaffected by such legislation 110.
Further, a finality clause in a statute is no bar to the exercise of the High
Court‘s jurisdiction under this Article111. The High Court may even grant a
declaratory relief if it finds that a writ would not suffice the proper relief and
can also make an interim order pending final disposal of the petition112.
The Supreme Court has time and again emphasized that this power of the high
court to issue writs is supervisory in nature and is not akin to its appellate
power. That is to say that while exercising jurisdiction nudes this provision,
the high court cannot go into the correctness of merits of the decision taken by
the concerned authority but can only review the manner in which the decision
is made113. It only ensures that the authority arrives at its decision according
to law and in accordance with the principles of natural justice wherever
applicable114. At the same very time, the court can intervene if the authority
acts unfairly and unreasonably115. This can make one say that judicial review
under this provision is not directed against a decision, as such, but is confined
to the decision making process.
Unlike Art 32, the high court under Art.226 does not ordinarily issue a writ
when an alternative efficacious remedy is available. That is to say, the high
court does not decide disputes for which remedies under the general law are
available. The High Court, under this provision, has jurisdiction to determine
110
Sajjan Singh v. State of Rajasthan AIR 1965 SC 845.
111
Srikant Jituri v. Corp. of Belguam (1996) 6 SCC 572.
112
Kanoria Chemicals & Industries Ltd. v. Uttar Pradesh State Electricity Board (1997) 5 SCC 772.
113
H.B.Gandhi, Excise and Taxation Officer cum Assessing Authority v.Gopi Nath & Sons(1992) Supp (2)
SCC 312.
114
State of Madhya Pradesh v. M.V.Vyavasaya & Co. AIR 1997 SC 993.
115
U.P Financial Corporation v. M/s Gem Cap (India) Pvt. Ltd. AIR 1993 SC 1435 at 1439.
81
questions of both fact and law by having recourse to affidavits and may even
permit cross examination of a person who has sworn to such an affidavit 116. It
can also intervene in case the question pertains to a mixed question pertains to
a mixed question of law and fact both 117. Where, however, disputed questions
of fact arise, a petition under Art.226 is not a proper remedy118.
Judicial Activism‘ can best be resorted to under this provision when one
attempts to ascertain that as to whom can a writ be issued by the high court,
since courts have widened their jurisdiction by bringing more and more
bodies under their ambit. Ordinarily, a writ of mandamus or certiorari is
issued to a government instrumentality whether statutory119 or not120.
However this depends on how actively‘Art.12 is interpreted for the purposes
of defining state‘. But besides Art.12, interpretation of the word authority‘also
caters enough scope for Judicial Activism‘under this article. Normally under
this provision, the high court does not grant merely a declaration unless the
aggrieved asks for a consequential relief available to him, but it empowered to
grant mere declaration if the petitioner is not entitled to the further
consequential relief on account of some legal bar of circumstances beyond his
control. In M.C. Sharma v. The Punjab University, Chandigarh it has been
held that121 , In exceptional cases, the High Court may be justified to grant the
relief merely in a declaratory form after being satisfied that the person
approaching the court was prevented from praying for any other consequential

116
Barium Chemiclas v. Company Law Board AIR 1967 SC 295.
117
Sharma Prashant v. Ganpatrao AIR 2000 SC 3094.
118
Tamilnadu State Electricity Board v. Sumathi AIR 2000 SC 1603.
119
Rajasthan State Electricity Board v. Mohan Lal AIR 1967 SC 1857.
120
Sukhdev v. Bhagat Ram AIR 1975 SC 1331.
121
AIR 1997 P&H 87.
82
relief on account of legal impediment or bar of jurisdiction created by the
same statute.‖ Apart from granting declaratory relief, the high courts have
power to make orders and to issue directions. Accordingly, they not only issue
writs, but are rather empowered to mould the relief in accordance with the
facts of the case with a view to do complete justice between the contending
parties.
Another innovative development of recent origin is the emerging remedial
scope of the provision. Like Supreme Court, high courts have also granted
compensation to the victims of the state lawlessness and negligence. Although
this provision nowhere means any direct reference to compensation‘, it has
been interpreted so by the Supreme Court 122. Furthermore, the court may
make an interim or interlocutory order in orders to maintain status quo
between the parties to ensure that the proceedings do not become anfractuous
or ineffective by any unilateral overt act by one side or the other during the
pendency of such a proceeding.

JUDICIAL REVIEW OF ADMINISTRATIVE ACTION THROUGH


WRITS
Administrative law has greatly demarcated the checks, balances and
permissible area of an exercise of power, authority and jurisdiction over
administrative actions enforced by the any State, Governmental agencies and
instrumentalities defined under Article 12 of the Constitution of India. And
the judiciary is dynamically carving the principles and exceptions, while
making the judicial review of administrative actions.
122
Nilabati Behera v. State 1993 AIR SCW.
83
The administrative law is that branch of law that keeps the governmental
actions within the bounds of law or to put it negatively, it prevents the
enforcement of blatantly bad orders from being derogatory.
The Courts have constantly tried to protect the liberties of the people and
assume powers under the Constitution for judicial review of administrative
actions. The discretionary powers have to be curbed, if they are misused or
abused. The socio-politic Institution need not cry, if the courts do justice and
perform the substantial role. That is the essence of justice. It is submitted, the
trend is to read the social justice and to translate in reality. The welfare State
has to discharge its duty fairly without any arbitrary and discriminatory
treatment to the people in the country. If such powers come to the notice of
the Courts, the courts have raised the arms consistently with the rule of law.
Today the Government is the provider of social services; new form of
property like jobs, quotas, licenses and mineral rights etc. The dispenser of
special services cannot therefore act arbitrarily. Courts laid the standard of
reasonableness in Governmental action.

Origin of Writs
The origin of writs can be drawn from the English Judicial system and were
created with the development of English folk courts-moots to the common
law courts . The law of writs has its origin from the orders passed by the
King’s Bench in England. Writs were issued on a petition presented to the
king in council and were considered as a royal order. Writs were a written

84
order issued in the name of the king which acted as groundwork for the
subsequent proceedings.
However, with different segments writs took various forms and names. The
writs were issued by the crown and in the interest of the crown but with the
passage of time it became available for ordinary citizens also. However a
prescribed fee was charged for it and the filing of these writs were known as
Purchase of a writ.

Historical background
The origin of writs in India goes back to the Regulating Act, 1773 under
which Supreme Court was established at Calcutta. The charter also
established other High courts and these High Courts had analogous power to
issue writs as successor to the Supreme Court. The other courts which were
established subsequently did not enjoy this power. The writ jurisdiction of
these courts was limited to their original civil jurisdiction which they enjoyed
under section 45 of the Specific Relief Act, 1877.

Writs
Certiorari
Certiorari is a Latin term being in the passive form of the word ‘Certiorare’
meaning to inform. It was a royal demand for information. Certiorari can be
described as “one of the most valuable and efficient remedies.” Certiorari is
one of the five prerogative writs adopted by the Indian Constitution under
Article 226 which would be enforced against the decisions of the authority
exercising judicial or quasi judicial powers. Such powers are exercised when
85
the authorities have failed to exercise the jurisdiction though vested in it or
failed to exercise the jurisdiction though vested on him or to correct the
apparent error on the face of record or there is violation of the principle of
natural justice. An instance showing the certiorari powers was exercised by
the Hon’ble Supreme court in A.K.Kraipak v. Union of India,123 where the
selection was challenged on the ground of bias. The Supreme Court
delineated the distinction between quasi judicial and administrative authority.
The Supreme Court exercising the powers issued the writ of Certiorari for
quashing the action.

Mandamus
Mandamus is a judicial remedy which is in the form of an order from a
superior court to any Government agency, court or public authority to do or
forbear from doing any specific act which that body is obliged to do under the
law . The writ of mandamus is issued whenever the public authorities fail to
perform the statutory duties confirmed on them . Such writ is issued to
perform the duties as provided by the state under the statute or forbear or
restrain from doing any specific act. The first case reported on the writ of
mandamus was the Middletone case in 1573 wherein a citizen’s franchise was
restored. The writ of mandamus can be issued if the public authority vested
with power abuses the power or acts mala fide to it.

123
supra
86
Quo Warranto
Quo Warranto means “by what warrant or authority”. Quo Warranto writ is
issued against the person of public who occupies the public seat without any
qualification for the appointment. It is issued to restrain the authority or
candidate from discharging the functions of public office. In University of
Mysore v. Govinda Rao124,12 the Supreme Court observed that the
procedure of quo Warrato confers the jurisdiction and authority on the
judiciary to control executive action in making the appointments to public
offices against the relevant statutory provisions; it also protects a citizen being
deprived of public office to which he may have a right.

Habeas Corpus
The Latin term Habeas Corpus means ‘have the body’. The incalculable value
of habeas corpus is that it enables the immediate determination of the right of
the appellant’s freedom ”. The writ of Habeas Corpus is a process for securing
liberty to the party for illegal and unjustifiable detention. It objects for
providing a prompt and effective remedy against illegal restraints. The writ of
Habeas Corpus can be filled by any person on behalf of person detained or by
the detained person himself. It is a judicial order issued by Supreme Court or
High Court through which a person confined may secure his release. The writ
of Habeas Corpus can be filed by any person on behalf of the other person.
In Icchu Devi v. Union of India125, the Supreme Court held that in a case of
writ of Habeas corpus there are no strict observances of the rules of burden of

124
1965 AIR 491
125
1980 AIR 1983, 1981 SCR (1) 640
87
proof. Even a post card by any pro bono publico is satisfactory to galvanize
the court into examining the legality of detention.
In A.D.M. Jabalpur v. Shivakant Shukla126, it was observed that “the writ
of Habeas Corpus is a process for securing the liberty of the subject by
affording an effective means of immediate relief from unlawful or
unjustifiable detention whether in prison or private custody. By it the High
Court and the judges of that court at the instance of a subject aggrieved
command the production of that subject and inquire into the cause of his
imprisonment. If there is no legal justification for that detention, then the
party is ordered to be released.”

Constitutional provision
The makers of the Constitution have adopted the English remedies in the
Constitution under Articles 32 and 226. There has been specifically made
provisions in the Constitution which empowers the Supreme Court and High
Courts to issue writs in the nature of Habeas Corpus, Mandamus, Prohibition,
Quo Warranto and Certiorari. The fundamental rights which are inalienable
sacrosanct in nature and character which were conceived in national and
public interest could be illusory if there is no constitutional machinery
provided for its enforcement. Unless such constitutional remedies for its
enforcement is not provided the rights guaranteed by part III of the
Constitution cannot be ever implemented by the citizens. Article 32 contained
in Part III is itself a fundamental right given to the person under the
126
1976 AIR 1207
88
Constitution. Similarly Article 226 of the Constitution is conferred on the
High Courts to exercise its prerogative writs which can be issued against any
person or body of person including the government. The distinction between
the two remedies is very negligible. The remedy under Article 32 is confined
to enforcement of fundamental rights whereas Article 226 is available not
only against the enforcement of fundamental rights but also for any other
purpose. Thus the constitution provides the discretionary remedies on the
High Court and the Supreme Court. In the absence of the provisions of such
remedies no one can enforce its rights given. Thus wherever there is a right
there must be a remedy for it. Thus it should satisfy the maxim, ‘ubi jus ibi
remedium.’ One of the principle makers of the constitution, Dr. Ambedkar
has given the prime importance to Article 32 among all other articles from the
Indian Constitution. He has referred that, “It is the very soul of the
Constitution and the very heart of it.”

Role of writs in administrative actions


Now as far as the role of the writs is concerned, let us go by illustration over
the cases on discretion. Conferment of discretionary powers has been
accepted as necessary phenomena of modern administrative and constitutional
machinery. Law making agency legislates the law on any subject to serve the
public interest and while making law, it has become indispensable to provide
for discretionary powers that are subject to judicial review. The rider is that
the Donnie of the discretionary power has to exercise the discretion in good
faith and for the purpose for which it is granted and subject to limitations

89
prescribed under the Act. The Courts have retained their jurisdiction to test
the Statute on the ground of reasonableness. Mostly, the courts review on two
counts; firstly whether the statute is substantively valid piece of legislation
and, secondly whether the statute provides procedural safeguards. If these two
tests are not found, the law is declared ultra vires and void of Article 14 of the
Constitution. Beside this, Courts control the discretionary powers of the
executive government being exercised after the statutes have come to exist.
Once they come into existence, it becomes the duty of the Executive
Government to regulate the powers within limitations prescribed to achieve
the object of the Statute. The discretionary powers entrusted to the different
executives of the Government play substantial role in administrative decision
making and immediately the settled principles of administrative law trap the
exercise of powers. If these discretionary powers are not properly exercised,
or there is abuse and misuse of powers by the executives or they take into
account irrelevant consideration for that they are not entitled to take or simply
misdirect them in applying the proper provision of law, the discretionary
exercise of powers is void. Judicial review is excluded when it is found that
executives maintain the standard of reasonableness in their decisions. Errors
are often crept in either because they would maintain pure administrative
spirit as opposed to judicial flavour or that they influence their decisions by
some irrelevant considerations or that sometimes, the authorities may
themselves misdirect in law or that they may not apply their mind to the facts
and circumstances of the cases. Besides, this aspect, they may act in
derogation of fundamental principles of natural justice by not conforming to
the standard or reasons and justice or that they do not just truly appreciate the
90
existence or non existence of circumstances that may entitle them to exercise
the discretion.
“The Executive have to reach their decisions by taking into account relevant
considerations. They should not refuse to consider relevant matter nor should
they take into account considerations that are wholly irrelevant or extraneous.
They should not misdirect themselves on a point of law. Only such a decision
will be lawful. The courts have power to see that the Executive acts lawfully.
They cannot avoid scrutiny by courts by failing to give reasons. If they give
reasons and they are not good reasons, the court can direct them to reconsider
the matter in the light of relevant matters though the propriety adequacy or
satisfactory character of these reasons may not be open to judicial scrutiny.
Even if the Executive considers it inexpedient to exercise their powers they
should state their reasons and there must be material to show that they have
considered all the relevant facts.”

Application of the Writ of Certiorari


The writ of Certiorari is basically issued against the statutory bodies
exercising judicial or quasi judicial powers. Such writ is issued against the
authorities namely the government and the courts or other statutory bodies
who have power to determine and decide the lis between the parties. In
deciding such issues if the decision making order is passed without any
authority or has passed the order in exercise of such authority or has
committed an error of law and facts the high court is empowered to correct
such error of the lower court or government authorities. Certiorari may apply
when the administrative or executive authority fails to observe their duty to
91
act fairly with respect to the administrative functions. The writ of Certiorari
may also be issued against a subordinate tribunal even if the decision
impugned is pronounced. A leading case of Ryots of Garabandho v.
Zamindar of Parlakimedi127, was the first decision on the writ of Certiorari.

Application of the Writ of Mandamus


The writ of mandamus is ordered when the statutory authorities who entrusted
with the duties fail to discharge its obligatory duty. It may be applied when
the government authorities vested with absolute powers fail to perform their
administrative and statutory duties. In Ratlam Municipal Council v.
Vardichand128, on account of the public nuisance created in the area by the
corporation in not maintaining the drainage system and the dirty water
stinking had clogged around which obviously created nuisance at the hands of
municipality for not discharging the duties under the act. As a result the
residents of Ratlam municipality moved the Sub-divisional magistrate under
section 133 of Code of Criminal Procedure, 1973 for abatement of nuisance
and the court issued the directions that, “Judicial discretion when facts for its
exercise are present has a mandatory import. Therefore when the Sub-
Divisional Magistrate, Ratlam, has before him information and evidence
which disclose the presence of public nuisance, considers it lawful to remove
such obstruction. This is a public duty implicit in the public power to be
exercised on behalf of the public and is pursuant to public proceeding.”

127
(1945) 47 BOMLR 525
128
1980 AIR 1622, 1981 SCR (1) 97
92
Application of the Writ of Prohibition
The writ of Prohibition is issued essentially against the government or its
authorities when they are not conferred with the power or jurisdiction to
decide the dispute. The court by virtue of this power restrains the authority to
exercise such powers which are not given to the authority.

Application of the Writ of Quo Warranto


The high Court would exercise the power of Quo Warranto against the public
authority or government who acts contrary to the provisions of the statute and
restrains the authority or public servant from usurping the public office on
account of lack of qualification. It is a means of asserting sovereign right. In
Sonu Sampat v. Jalgaon Borough Municipality 129 , “If the appointment of
an officer is illegal, everyday that he acts in that office, a fresh cause of action
arises and there can be therefore no question of delay in presenting a petition
for quo warranto in which his very, right to act in such a responsible post has
been questioned.”

Application of the Writ of Habeas Corpus


The writ of Habeas Corpus is a writ issued in order to protect the liberty and
freedom which is conceived to be very vital. It is issued against the wrongful
detention or confinement through the police authority. By virtue of this writ
the police authorities or other such statutory authorities are empowered to
bring the custody of the person who has been wrongfully detained by the

129
(1957) 59 BOMLR 1088
93
court of law. In the case of State of Bihar v. Kameshwar Singh130 it was
stated that, the writ of Habeas Corpus is in the nature of an order for calling
upon the person who has detained or arrested another person to produce the
latter before the court, in order to let court know on what ground he has been
confined and to set him free if there is no legal justification for the
imprisonment . One of the telling ways in which the violation of that right can
reasonably be prevented and due compliance with the mandate of article 21
secured, is to mulct its violators in the payment of monetary compensation.

130
1952 1 SCR 889
94
Chapter.4
JUDICIAL ACTIVISM

JUDICAL ACTIVISM AS AN EXTENSION OF POWER OF JUDICIAL


REVIEW

Judicial activism has always been a source of heated debate, especially in the
light of recent developments in this regard. Over the last few years with
various controversial decisions, judges of the Supreme Court as well as
various High Courts have once again triggered off the debate that has always
generated a lot of heat. But still, what the term “judicial activism” actually
connotes is still a mystery. From the inception of legal history till date,
various critics have given various definitions of judicial activism, which are
not only different but also contradictory. This is an attempt to bring out the
exact connotation of “judicial activism” and to find out its effects on today’s
changing society. Although the idea of judicial activism has been around for
quite some time, the term judicial activism was first introduced to the public
by Arthur Schlesinger Jr. in his article which appeared in fortune Magazine in
January 1947. He referred to the judges of the U.S. Supreme Court and
explained different views held by them, Justice Black, Justice Douglas,
Justice Murphy and Justice Rutlege were described as judicial activists who
believed that the SupremeCourt can play an affirmative role in promoting
social welfare, JusticeFrankfurter, Justice Jackson and Justice Burton
appeared as champions of self restraint who argued that the judiciary should
95
not go beyond its established but limited role and respect the principle of
separation of powers as embodied in the U.S. Constitution, The critics held
the view that judicial activism paves way for an unwanted intrusion by the
courts into the realm which is reserved for political branches of government.
The term Judicial Activism‘is commonly understood as being a mere
extension of the power of Judicial Review‘in some intellectual quarters. This
is inferable from the very work of Professor Sathe in his celebrated book
Judicial Activism in India where he introduces the work as being a
monograph about judicial review and its role in democracy‖ 131 .Emphasizing
the traditional role of judiciary under the Indian Constitution and the manner
in which the power of judicial review‘ was exercised by the erstwhile judges;
Sathe elaborates as to how the judiciary gradually started gaining more and
more momentum over a period of time. He calls such gaining of momentum
as Searching Judicial Vigilance‖ and further defines it as Judicial
Activism.‘He is also of the view that Activism‘, however, can easily
transcend the border of judicial review and turn into populism and
excessivism. This makes the present chapter relevant in the scheme of this
work, as it offshoots the need to actually ascertain the limits within which the
power of Judicial Review‘ must be exercised in order to maintain harmony
between the judicial organ of the state on the one hand and the other two co-
equal organs of the state on the other.
The term Judicial Activism‘ has no unanimously agreed definition amongst
the authorities as it is understood differently in different spheres, depending

131
See S.P.Sathe, Judicial Activism in India 1 (2002).
96
upon individual view point. Professor Baxi rightly points out that there can be
no objective definition of whether or not a decision is an instance of Judicial
Activism‘. According to him132: Judges are evaluated as activists by various
social groups in terms of their interests, ideologies and values,Quite often, the
label is attached to a judge who himself may not consider him as an activist.
Sathe‘s approach is persuasive in Indian context and holds the field since
judiciary enjoys ample powers under the auspices of Judicial Review‘ under
the constitutional scheme. Being the final interpreter of the Constitution, it
can be rightly said that judiciary itself is the body that decides the limits of its
power. Interestingly, it has taken a long arduous way in crystallizing such
powers often resulting in activism‘and overreach‘since the making of the
Indian Constitution till date and the process remains ongoing. The best
illustrative example that reveals the height of this process is Keshavanand
Bharti v. State of Kerala133 case. Further, innovations in the field of Public
Interest Litigations (PIL) also signify the courage of conviction and the
courage of confusion through which the Supreme Court of India has
transformed itself into a Supreme Court for Indians 134. However, the issue
which still remains unanswered is: What is the limit of the power of Judicial
Review‘? And how far can the judiciary claim power under the given
constitutional scheme? These are certain questions that the present chapter
undertakes and attempts to investigate.
In doing so, it is utmost important to first look at the parameters of the said
power as can be evidenced from the trends of judicial behaviour, Especially
132
See UpendraBaxi, Courage, craft, &Contention 3 (1985).
133
AIR 1973 SC 1461.
134
See M.J.C Vile, Constitutionalism and Separation of Powers 1 (1967).
97
the ones where judiciary is said to have behaved‘ in an activist manner.
Though the list is not exhaustive, however, the following functional
parameters can be listed135. a. While interpreting the meaning and scope of a
statutory provision or the statute itself made by a competent legislature. b.
While maintaining the balance between a federation and its federating units or
among the units per se. c. While upholding the supremacy of the Constitution
when such a question has been brought before it in an adversarial system of
justice. d. While protecting the fundamental rights and freedoms of the
citizens and non-citizens, if they are guaranteed by written constitution. e.
While dealing with institutional conflicts, viz. the conflicts between the
legislature & judiciary or executive and judiciary; and f. While interpreting
the Constitution itself with due regard to the intention of the framers of the
Constitution etc.
Within the main frame of these enlisted parameters, this chapter further
attempts to understand the nature and the legitimate extent of powers
possessed by the Indian judiciary. Before doing so, it is worth having a lucid
understanding of the position of judiciary under the constitutional scheme of
India.

ROLE OF JUDICIARY
Our Founding Fathers while drafting the Preamble gave precedence to Justice
over Liberty, equality and fraternity by placing these philosophical terms in
that particular order. Unless there is justice, liberty is meaningless. Justice and

135
See G.B.Reddy, Judicial Activism in India 56 (2001).
98
liberty together secure equality. There can be no fraternity unless there is
justice, liberty and equality. In the chain of philosophical thoughts underlining
the Constitution, the most significant is the concept of Justice. Duly
honouring justice lays the foundation for the welfare and progress of society.
It holds civilized beings and civilized nations together. In this scheme of
things the role of judiciary becomes very important.
Role of judiciary has always been to deliver justice to the matters which are
brought in front of it. Conventionally this role was perceived as to deliver
justice by strictly following the laws in vogue. But fulfilment of the promise
given in preamble to secure Justice (social, economic and political) to all its
citizens was not possible by the judiciary while strictly following its
conventional role of interpreting law as legislated. It required a broader
interpretation by judicial creativity and judicial activism to bring a social
change keeping public interest in view. The judiciary has played a crucial role
in evolving itself from its conventional role of interpreting the statute as
legislated to the enhanced role of delivering justice to the masses by creative
interpretation of the existing law and in absence of it making law to meet the
needs of the society. In this process judiciary created a Magical Wand named
Public Interest Litigation for delivering justice to the backward, poor, denied,
downtrodden, destitute, deprived, depraved, disadvantaged handicapped,
have-nots, half hungry, half clad millions, ignorant, illiterate, indigent,
incapable, little Indian, lost and lonely, unaware, forlorn, forgotten, exploited,
lowly and lost, weak, vulnerable and underprivileged class of society.

99
CONVENTIONAL ROLE OF JUDICIARY
Since the time of its inception the role of judiciary is to deliver justice in the
matters which are brought before it. Conventionally the role of judiciary was
taken as to deliver justice by following the laws in vogue. In the traditional
concept of judiciary, the judge is depicted by an image, where the eyes of the
judge are covered by dark cloth with hands holding the balance. This
obviously means that the judges are supposed to have a very open mind on
every issue with the eyes closed i.e. without having any personal opinions at
all. Further, this also implies that the judges would not allow themselves to be
influenced by the events happening around them. Traditionally, it was thought
that the judges should live in some sort of isolation, so as to preserve a mind
that will be open and remain unprejudiced under any circumstances.
The traditional paradigm of the adversarial judicial process was designed for
adjudication of disputes between private parties over contracts or civil
liberties, property or matrimonial affairs. It was based on the following
hypothesis:
(1) People were supposed to know the law and their rights, and

(2) The judicial process was the least desirable method of settling disputes
and had to be used only when other methods such as inter party settlement,
conciliation, or mediation did not work. The traditional legal theory of judicial
process envisioned a passive role of courts. It postulated that:
a. The courts merely found the law or interpreted it but did not make it.

100
b. If they made the law, they did so only to fill in the vacuum left by the
statute and only to the extent necessary for the disposal of the matter before
them.
As per doctrine of Separation of Powers, the legislative organ of the state
makes the law, the executive enforces them and the judiciary applies them to
specific cases arising out of the breach of law. In other words the judiciary is
assigned the role to deliver justice by applying the enacted law to the specific
cases which have been brought before of the judiciary for the breach of law.

ROLE ASSIGNED BY THE CONSTITUTION


Preamble of the Indian Constitution itself promises to secure JUSTICE which
is social, economic and political. Therefore Constitution enhanced the
conventional role of judiciary to deliver social, economical as well as political
justice to all its subjects. The Indian Constitution assigned the functional role
to the Supreme Court in its various provisions from Arts. 131 to 147. Supreme
Court is given plenary powers (Article `142) to make any order for doing
complete justice in any cause or matter and a mandate in the Constitution
(Article 144), to all authorities, Civil and Judicial, in the territory of India to
act in aide of the Supreme Court. Art.32 provides remedies for enforcement of
Fundamental Rights. The scope of Write Jurisdiction of the High Court‘s
(Article 226) is wider than traditionally understood and the judiciary is
separate and independent of the executive to ensure impartiality in
administration of justice. The judiciary has a pivotal central role to play in our
thriving democracy and shuns arbitrary executive action. The higher judiciary
has been empowered by the constitution to pronounce upon the legislative
101
competence of the law making bodies and the validity of a legal provision.
The range of judicial review recognized in the higher judiciary in India is the
widest and most extensive known to any democratic set up in the world.

LIMITATIONS OF THE JUDICIARY


However, Legislature, Executive and Judiciary have their own roles to play as
demarcated by the Constitution. Article 142(1) of the Constitution of India
while dealing with the enforcement of Supreme Court orders perspicaciously
lays down as, The Supreme Court in the exercise of its jurisdiction may pass
such decree or make such order as is necessary for doing complete justice in
any cause or matter pending before it, and any decree so passed or order so
made shall be enforceable throughout the territory of India in such manner as
may be prescribed by or under any law made by Parliament and, until
provision in that behalf is so made, in such manner as the President may by
order prescribe.
The spirit of the Constitution in matters of the responsibilities and limitations
of the Judiciary here are in the exercise of its jurisdiction, for doing complete
justice, in any cause or matter pending before it‘ and enforceable…as may be
prescribed by or under any law made by Parliament.‘ The phrases make
perspicuous two limitations on the Judiciary, namely that it shall act only on
matters pending before it in exercise of its jurisdiction for doing complete
justice, and that the operation of its decree or order is subject to the law made
by Parliament or Presidential order. The limitation of jurisdiction and the need
of matters being pending before it, together constitute a serious limitation on
the Judiciary to do anything for doing complete justice.
102
ENHANCED ROLE OF THE INDIAN JUDICIARY
The conventional role of the judiciary is to deliver justice in the matters
bought before it by interpreting the laws in vogue. After the independence
initially the judiciary followed the principle of narrow construction and literal
interpretation of statutes as well as strict rule of locus stand in dealing with
cases. Strictly interpreted what is written. They believed that if the framers of
the constitution intended something else them they would have included those
few words. This approach of the judiciary can be well understood when we
see the judiciary‘s stand while dealing with the cases of Fundamental Rights
& Directive Principles.

RELATIONSHIP BETWEEN FUNDAMENTAL RIGHTS AND


DIRECTIVE PRINCIPLES OF STATE POLICY
The directive principles differ from fundamental rights in this respect the
Fundamental Rights are justifiable, Directive Principles are non-justifiable. In
State of Madras v. Chapakam Dorairajan 136, the Supreme Court observed as
follows:
The Directive Principles of the State Policy, which by Article 37 are expressly
made unenforceable by Courts cannot override the provisions found in Part III
which notwithstanding other provisions, are expressly made enforceable by
appropriate writs, orders or directions under Article 32. The Chapter on
Fundamental Rights is sacrosanct and not liable to be abridged by legislative
or executive act or orders, except to the extent provided in appropriate Article

136
State of Madras v. Chapakam Dorairajan AIR 1951 SC 228.
103
in Part III. The Directive Principles of State Policy have to confirm and to run
as subsidiary to the Chapter on Fundamental Rights. In our opinion that is the
correct approach in which the provision found in Part III and IV have to be
understood. However, so long as there is no infringement of any fundamental
right to the extent conferred by provisions in Part III, there can be no
objection the State acting in accordance the directive principles set out in Part
IV, but subject again to the legislative and executive powers and limitations
conferred on the State under different provisions.
It was held that in case of any conflict between fundamental rights and
directive principles, the fundamental rights would prevail. But a year later
when the Court dealt with Zamindari Abolition cases its attitude was
considerably modified. In the State of Bihar v. Kameshwar Singh,137 the Court
relied on Article 39 in deciding that a certain Zamindari Abolition Act had
been passed for a public purpose within the meaning of Article 31. Finally, in
Re Kerala Education Bill, the Supreme Court observed that though the
directive principles cannot override the fundamental rights, nevertheless, in
determining the scope and ambit of fundamental rights the courts may not
entirely ignore directive principles but should adopt the principles of
harmonious construction and should attempt to give effect to both as much as
possible. While Part III contains negative directions to the State not to do
various things. Part IV contains positive commands to promote what may be
called a social and welfare State.

137
State of Bihar v. Kameshwar Singh AIR 1952 SC 352.
104
In its Keshavanand Bharti v. State of Kerala 138 the Supreme Court has said
that fundamental rights and directives principles aim at the same goal of
bringing social revolution and establishment of a Welfare State and they can
be interpreted and applied together. They are supplementary and
complimentary to each other. It can well be said that directive principles
prescribed the goal is to be achieved.
In Minerva Mills Ltd. v. Union of India,139 the Supreme Court highlighted the
position of Part IV of the Constitution. It is true, Part-III of the Constitution
embodied fundamental right and Part IV contended the directive principle of
the State policy. The scope of the two Articles was explained by the Supreme
Court in a manner which has cleared all doubts and disputes in the mind of the
people, and held that the goals set out in Part IV have to be achieved without
the abrogation of the mills provided for by Part-III. It is in this sense that Part
III. It is in this sense that Part-III and Part IV together constitute the core of
our Constitution and combine to form a conscience. Anything that destroys
the balance between the two parts will ipso-facto destroy the essential
elements of basic structure of our Constitution.

FUNDAMENTAL RIGHTS
In 1952, in Sri Sankari Prasad‘s case140, a Constitution Bench held that any
act passed by the Parliament under its amending power under Article 368
would be valid even if it abridged any of the fundamental right contained in

138
Keshavanand Bharti v. State of Kerala AIR 1973 SC 1461.
139
Minerva Mills Ltd. v. Union of India AIR 1980 SC 1789 : (1980) 3 SCC 625.
140
Sri Sankari Prasad Singh Deo v. Union of India & State of Bihar, 1952 SCR 89.
105
Part III of the Constitution. Again in 1964, another Constitution Bench in
Sajjan Singh‘s case141 supported the views expressed in Sankari Prasad. These
two cases were considered by an 11 Judge Bench in Golak Nath‘s case142. The
views expressed in Sankari Prasad and Sajjan Singh was reversed. The
Supreme Court held that fundamental rights are primordial rights necessary
for development of human personality and these rights enable a man to chalk
out his own life in the manner he likes best. The Bench expressed the view by
majority judgment that fundamental rights are given a transcendental position
under our Constitution and are kept beyond the reach of Parliament. But, at
the same time, Parts III and IV of the Constitution were held to constitute an
integral scheme forming a self-contained code. The scheme is so elastic that
all the Directive Principles can be reasonably enforced without abridging or
abrogating the Fundamental Rights. Various constitutional amendments were
made by the legislators purporting to overcome the decision in Golak Nath‘s
case.
A larger Bench of 13 judges in celebrated Keshavanand Bharti‘s case143
examined the correctness of GolakNath‘s decision to determine whether the
law relating to Parliament‘s power of amendment of Constitution had been
rightly decided in Golak Nath‘s case or not. In Keshavanand Bharti‘s case, by
majority, the Golak Nath‘s case was overruled. It was held that Article 368
does not enable Parliament to amend the Constitution to alter the basic
structure of framework of the Constitution. Implied limitations were read in

141
Sajjan Singh v. State of Rajasthan (1965) 1 SCR 933
142
L.C. Golak Nath & Ors. State of Punjab & Anr. (1967) 2 SCR 762
143
His Holiness Keshavanand Bharti & Sripadagalvaru v. State of Kerala & Anr., 1975 (Supp) SCC 1.
106
Article 368. Various constitutional amendments were made after decision in
Kesavanand Bharti including 39th amendment thereby introducing Article
329-A was struck down by a Constitution Bench in the case of Indira Nehru
Gandhi144 applying the basic structure theory.
This was followed by proclamation of internal emergency from June 1975 to
March 1977 during which period Articles 14, 19 and 21 stood suspended.
Sweeping changes were also made in Article 368 with a view to provide that
there shall be no limitation whatever on the constituent power of Parliament
to amend by way of addition, variation or repeal the provisions of the
Constitution and also providing that no amendment of the Constitution
including Part III thereof relating the Fundamental Rights shall be called in
question on any ground.
In this period, Supreme Court in the case of ADM Jabalpur v. Shivkant
Shukla145 gave quite a controversial decision wherein Article 21 (which
provides that no person shall be deprived of his life or personal liberty except
according to procedure established by law) was discussed. The majority of the
Bench deciding Shivkant Shukla‘s case held that in cases of dire emergency
as existed between 1975 and 1977, a procedure can be established by law,
following which even human life can be taken away Justice Chandrachud who
wrote the judgment came under heavy fire for writing a pro-Government
judgment but the proposition of law as propounded by him was an excellent
example of Judicial Activism. Justice Chandrachud has so interpreted Article
21 and upheld the validity of legislation which require acceptance to maintain

144
Smt. Indira Nehru Gandhi v. Shri Raj Narain & Anr., 1975 (supp) SCC 1.
145
ADM Jabalpur v. Shivkant Shukla AIR 1976 SC 1207.
107
the sovereignty of the Country in case it is threatened either by internal
aggression or external invasion.

LIMITS ON JUDICIAL ACCTIVISM


Today, everything from river pollution to the selection of the cricket team has
Become the purview of judicial activism. Is it time to put the genie back in the
bottle and confine the courts' public interest jurisdiction to its original purpose
of ensuring justice to the poor and exploited?
All judges have subjective opinions. Their views have a bearing on judgments
delivered. So, regardless of the appearance of neutrality, the values and
beliefs of the judiciary play a major role in the life of the nation. In that sense,
the judiciary actively pushes things in a certain direction. For example,
immediately after Independence the courts' approach was one of protection of
the rights of property, and this led to the striking down of land reform
legislations. There has always been a tussle between Parliament and the
judiciary, leading to various constitutional amendments that, in turn, have
been challenged in the courts. However, the genesis of 'judicial activism' lies
in the evolution of public interest litigation.
Under the Indian Constitution, the Supreme Court and high courts can be
approached in case of a violation of fundamental rights. However, it was the
person whose rights had been directly affected who could petition the court.
This rule, prohibiting the filing of cases on behalf of other individuals, was
followed for almost three decades.

108
In 1979, a small news item in the Indian Express, describing the plight of
Under trial prisoners who had been languishing for periods longer than the
maximum punishment prescribed, led an advocate to file a petition in the
Supreme Court. The court entertained this petition on behalf of the prisoners,
and various directions to provide relief were given in the Bihar under trials
case. Thereafter, the court entertained a number of representative petitions in
the areas of custodial death, prisoners' rights, and abolition of bonded labour,
condition of mental homes, workers' rights, occupational health and related
issues. The rationale was that fundamental rights remained on paper for a
large number of marginalized sections of society that were not in any position
to come to court. Therefore, public-spirited persons could file petitions on
behalf of these poor and exploited classes of people. Even letters describing
the plight of the dispossessed were entertained, and relief given.
Public Interest Litigations (PILs) evolved as an innovative departure from the
rules, in tune with the socio-economic condition of our society. Even in the
field of environmental jurisprudence, in cases like the Sriram oleum gas leak
incident in 1985, in Delhi, the court evolved principles of corporate liability
and awarded compensation to the injured workers and people living around
thefactory. Those were the heydays of judicial activism, with socially-oriented
judges like Krishna Iyer, P N Bhagwati and Chinnappa Reddy.
Gradually, however, the court began entertaining public interest petitions that
were not solely on behalf of the exploited sections. Some of the petitions dealt
with social ills like corruption and the criminalisation of politics. Others were
about the protection of ancient monuments like the Taj Mahal, the tombs of
Zauq and Ghalib. River pollution, destruction of forests, waste management
109
and environmental conservation began to constitute another huge chunk of
PILs.
People turned to the judiciary as a panacea for all ills, and the courts seem to
have accepted their own omnipotence. Cases like the hawala, Bofors and
fodder scam are all household names today. And yet, corruption is prevalent
in the courts themselves, and the apex court has not been able to cleanse its
own backyard while attempting to root out corruption from the entire country.
Today, PIL is an ever-expanding universe. Any and everything, from then
selection of the cricket team to the construction of a flyover, falls within its
domain. Simultaneously, a large number of funded and non-funded CSOs, in
the shape of committees, centres and human rights networks with the primary
objective of filing PILs, have mushroomed and are part of the litigating
constellation.
From the PIL's humble beginnings as champion of the poor and exploited,
public interest litigation is moving in a diametrically opposite direction. There
was a time when the courts would provide relief from the harsh, arbitrary
actions of the executive, reflected in, say, the grant of a stay on the demolition
of slums on grounds of lack of a rehabilitation plan or hardship of the
monsoons, or school examinations. Today, slum demolitions are being
directed on orders from the courts. In fact, the tables have turned. Today, it's
the executive and legislature that are trying to put a relief and rehabilitation
scheme in place before such demolitions. The courts, on the other hand, are
declaring that demolitions should be carried out immediately, rendering
scores of people homeless. A similar trend is reflected in a large number of
PIL areas. Thus, in the decision to shift heavy industries out of Delhi, the
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court heard public interest litigant M C Mehta, the owners of the industries,
and the government, but denied the opportunity to be heard to the workers
whose right to life and livelihood was going to be affected by the decision.
Protection of the environment is an area in PIL where the people versus
environment paradigm have been constructed. But in cases such as the
ongoing Godavarman case, the judiciary issued directions to evict tribals and
other villagers from sanctuaries, national parks and tiger reserves. The right to
life and livelihood of thousands of people residing in these areas does not find
much place in the developing environmental jurisprudence. The declining
authority of the legislature and executive has led to ever increasing activism
by the judiciary in these areas. The role of the judiciary was understood to be
interpreting the laws made by the legislature. However, the Supreme Court
evolved the doctrine that in areas where no law had bee made by the
legislature, the judiciary could create a law to address the problems and issues
raised in petitions. For instance, in the absence of legislation, the court laid
down guidelines and mechanisms with respect to sexual harassment in the
workplace, in the famous Vishakha judgment. In the sphere of environmental
jurisprudence, the Supreme Court created the five member Central
Empowered Committee (CEC) which functions like a judicial body and gives
recommendations. Generally, appointment to statutory bodies created under
legislation is a prerogative of the executive. However, on the recent issue of
appointments to the Forest Advisory Committee, the judges reacted with
indignation to the environment ministry's rejection of the names suggested by
the CEC and endorsed by the court. The Supreme Court has been, and
remains, a political institution. The role it plays varies with the nature of the
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polity, the strength and stability of the Centre, and the prevalent mood in the
country. Today, in an era of coalition politics, a weak and wilting Centre, and
the eroded credibility of the legislature and executive, the judiciary has taken
centre stage. But is it time to put the genie back in the bottle and confine the
courts' public interest jurisdiction to its original purpose of being permissible
solely on behalf of the poor and exploited?

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Chapter.5
CONCLUSION

In any democratic set up, the control over the government is exercised by the
people as the democracy is known as “Government of the people, by the
people, for the people.” But it has been witnessed that this control is weak,
fragile as many democratic societies does not permit frequent checks of the
administrative actions. This control is not effective enough as the majority of
the people exercising it are disempowered. It is an accepted axiom that the
real kernel of democracy lies in the courts enjoying the ultimate authority to
restrain the exercise of absolute and arbitrary power. Hence, auxiliary control
becomes imperative and this auxiliary control is the “Judiciary with a power
of judicial review.” Judicial review which is based on the fundamental
principles of administrative law (Separation of Power, Rule of Law, and
Fundamental Rights) has been declared as the integral part of the Constitution
which cannot be abolished, whittled down even by the amendment of the
Constitution. Therefore, all actions administrative, judicial or quasi- judicial
of different institutions irrespective of their nature are subject to the Judicial
Review.

In India, the exercise of power of judicial review is itself made subject to the
limitations, expressly provided in the constitution example articles 32,226, 74,
77, 163, 166, 105, 194, 12, 212. The Supreme Court has also evolved certain

113
self-imposed limitations on its powers of judicial review, as found in res
judicata, laches, standing, waiver, etc.

Nevertheless, in several cases, it has been held that the Supreme Court can act
as the custodian, defender of rights of people, and democratic system of
government only through the judicial review. In Keshavanand Bharti’s case,
it was held that the judicial review is a ‘basic feature’ of the constitution and
cannot be amended. The scope of judicial review is sufficient in India, to
make supreme court a powerful agency to control the activities of executive
and the legislature.

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Chapter.6

FUTURE PERSPECTIVE

The judiciary can interfere if there is an abdication of duties by the legislature


or executive. The Constitution makers have conferred the important sovereign
functioning of interpretation of the Constitution and various statutes upon the
judiciary. The Supreme Court and the High Courts can issue writs to control
the functioning of lower Judiciary. The decision of the High Court or
Supreme Court cannot be questioned by way of a writ proceeding. Thus, a
final decision of the Supreme Court cannot be questioned under Article 32,
except by way of review petition. It is true that the Courts have wide powers
of judicial review of constitutional and statutory provisions.

These powers, however, must be exercised with great caution and self-control.
The courts should not step out of the limits of their legitimate powers of
judicial review.Where the words are clear, there is no ambiguity and the
intention of the legislature is clearly conveyed, there is no scope for the Court
to take upon itself the task of amending or altering the statutory provisions.

The Judges have to remember that there is a line, though thin, which separates
adjudication from legislation. The Judiciary plays a role of interpreter and
should not undertake the task of law-making unless the situation demands so.
Thus, Judicial review in India is absolutely essential and not undemocratic
because the Judiciary while interpreting the Constitution or others statutes is

115
expressing the will of the people of India as a whole who have reposed faith
and confidence in the Indian Judiciary.

The Judicial review would be undemocratic only if the judiciary ignores the
concept of separation of powers and indulges in “unnecessary and
undeserving judicial activism”.The constitutional court has enormously
expanded its power of judicial review under an activist philosophy and
orientation. The scope of judicial review in India should be understood in the
light of its constitutional scheme work, because the Indian judiciary derives
its strength from the constitution like other organs. That is why Dr. A.S.
Anand has stated that the judicial whistle need to be blown for a limited
purpose and with caustion. It needs to be remembered that courts cannot run
the government nor the administration indulge in abuse or non-use of power
and get away with it.

The courts have the duty of implementing the constitutional safeguards that
protect individual rights but they cannot push back the limits of the
constitution to accommodate the challenged violation.

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BIBLIOGRAPHY

BOOKS:

1. Judicial Review: justice P.S. Narayan

2. Administrative law : U.P.D. Kesari.


3. Principles of Administrative Law: M.P. Jain
4. Administrative law: Henry William Rawson Wade
5. Lectures on Administrative Law: C.K. Takwani
6. Constitutional Law of India: A Critical Commentary : Hormasji
Maneckji Seervai
7. Salmond on jurisprudence: sir John William Salmond

REOPRTS AND RESEARCH WORK:

1. Legal System in India is accessed from http://hbse.nic.in/download_


aca/ded/legal_system_judiciary.pdf.
2. Adversarial System is accessed from http://www.silf.org.in/16/Indian-
Judicial-System.htm.
3. American Bar Association (2004). How the Legal System Works: The
Structure of the Court System, State and Federal Courts. In ABA
Family Legal Guide.
4. Public Services Department. "Introduction to the Court system".
Syracuse University College of Law.
117
5. Mixed System is Accessed from http://en.wikipedia. org/wiki/
Judiciary.
6. Cappelletti, Mauro et al. The Italian Legal System, page 150
(StanfordUniversity Press, 1967.
7. Willis-Knighton Med. Ctr. v. Caddo-Shreveport Sales & Use Tax
Comm'n., 903 So.2d 1071, at n.17 (La. 2005).
8. Barenboim, Peter (October 2009). Defining the rules. Issue 90. The
European Lawyer.
9. Baxi, Upendra (1994a). Inhuman Wrongs and Human Rights.
Unconventinal Essays.New Delhi: Har Anand Publications.
10. Khanna, H.R. (1999). ‘The Role of the Judiciary’. In: Mahesh and
Bhattacharyya, eds. (1999).
11. Jethmalani, Ram (1999). ‘Judging the Judges’.
12. See www.conservapedia.com/Judicial_Activism accessed on 18 July
2010 & See also Judicial Activism in Comparative Perspective (KM
Holland ed.) London, Macmillan (1991) p. 1.
13. K.D Kmiec, “The origin and current meaning of ‘Judicial Activism’”
92 California Law Review 1441 (2004) at p. 1446.

WEBSITES:

1. http://www.jstor.org/stable/1333402?seq=3
2. http://en.cnki.com.cn/Article_en/CJFDTOTAL-ZSKY200506019.htm
3. http://www.cci.gov.in/
4. http://ec.europa.eu/competition/index_en.html
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5. http://www.ftc.gov/bc/
6. www.westlaw.co.in
7. www.manupatra.com

CASES:

1. Indian Railway Construction Co. Ltd. v. Ajay Kumar, (2003)4 SCC


579
2. State of U.P. v. Nand Kishore Shukla, (1996)3 SCC 750
3. Tata Cellular v. UOI (1994)6 SCC 651; UOI v. B.C.Chaturvedi (1995)6
SCC 750

4. Minerva Mills Ltd. v. Union of India & Ors, AIR 1789 SC 1789”

5. Marbury v. Madison (5 U.S. 137 (1803)

6. Sunil Kumar Bose And Ors. vs The Chief Secretary, 54 CWN 394

7. Chief Constable v. Evans, (1982)3 All ER 141

8. Sterling Computers Ltd. v. M&N Publications, AIR 1996 SC 51

9. LIC of India v. CERC AIR 1995 SC 1811

10. S.R .Bommai v. UOI; G.B. Mahajan v. Jalgaon M.C., AIR 1991 SC
1153

11. FertilizerCorporation Kamgar Union v. UOI AIR 1981 SC 344

12. Rajasthan State Electricity Board v. Mohan Lal AIR 1967 SC 1857
119
13. Sukhdev v. Bhagat Ram AIR 1975 SC 1331

14. S.R .Bommai v. UOI; G.B. Mahajan v. Jalgaon M.C., AIR 1991 SC
1153
15. FertilizerCorporation Kamgar Union v. UOI AIR 1981 SC 344

16. D.K.Basu v. State of West Bengal AIR 1997 SC 3017.

17. PUCL v. Union of India (1997) 3 SCC 433.


18. Pashim Bangel Khet Mazdoor Samiti v. State of West Bengal AIR
1996 SC 2426.
19. M.C.Mehta v. Union of India (1987) 4 SCC 463.
20. Bhim Singh v. State of Jammu & Kashmir AIR 1986 SC 494.

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