NATIONAL LAW INSTITUTE UNIVERSITY

KERWA DAM ROAD

BHOPAL

TRIMESTER: IX TRIMESTER
SESSION: 2010-2011
SUBJECT: Administrative Law I

JUDICIAL REVIEW ON ADMINISTRATIVE ADJUDICATION

SUBMITTED TO SUBMITTED BY
Mrs. Sushma Sharma Abiha Zaidi
Assistant Professor of Law Roll no. - 2008 BA LLB 66
NLIU, Bhopal. Enrollment no. - A 0840
 TABLE OF CONTENTS

1. STATEMENT OF PROBLEM

2. INTRODUCTION

3. AREAS FOR JUDICIAL REVIEW

4. BUT BEFORE WE PROCEED

5. THE QUESTION

6. JUDICIAL REVIEW OF ADMINISTRATIVE ACTION

7. SUMMARISING

8. CONCLUSION

9. REFERENCES

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 STATEMENT OF PROBLEM

What is the extent and impact of Judicial Review on Bureaucratic Decision Making?

INTRODUCTION

The Indian Constitution does not lay down a strict system of separation of powers and
there is overlapping of functions sometimes between the three wings of the Constitution -
Judiciary, Executive and Legislature, like for instance an executive when given the
rulemaking power or when it is given quasi judicial authority to adjudicate on an issue.
There has to be constant checks and balances on each of the institutions to eliminate the
aspect of arbitrariness and to check that there is no usurping of powers of any entity by
others.

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. This rigid perception and
practice can be given a go by in cases of “abdication of duties” by one of the organ of the
Constitution. Thus, the judiciary can interfere if there is an abdication of duties by the
legislature or the executive. For instance, if the legislature delegates its essential and
constitutional functions to the executives, 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.

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Following are the areas of where judicial review can be done

Rule-making action: When any administrative authority exercises the law making power
delegated to it by the legislature, it is known as the rule-making action of administration
or quasi legislature action.

Rule-decision action: Administrative decision-making may be defined, as the power to

perform acts administrative in character but requiring incidentally some characters of
judicial traditions. In administrative decisions there is no legal obligation to consider and
weigh submissions and arguments or collect evidence or solve any issue. Grounds upon
which the action is taken and the procedure for taking the action are left entirely to the
discretion of the authority. This branch of law which is ever expanding is left unbridled.
This is the area that is of maximum relevance to the rights of the citizens e.g.,
disciplinary proceedings, determination of citizenship etc.

Rule-application action/Administrative action: Administrative action is the residuary

action that is neither judicial nor legislative. It is concerned with the treatment of a
particular situation and is devoid of generality. It has no procedural obligation of
collecting evidence and weighing argument. It is based on subjective satisfaction where
decision is based on policy and expediency.

Key concerns
The administrative authorities have to carry out their duties in the most responsible and
transparent manner holding themselves accountable to the public for their actions. The
role of the administrative authorities is generally to administer, but also to facilitate easy
governance, powers of other entities of Constitution that have been delegated to these
agencies. So they have to exercise utmost care while exercising their discretionary
power, while making rules, or while making decisions. Their actions should not result in
usurpation of powers of other agencies and at the same time should not cause injustice to
the citizens. They have to carry out their functions in complementary with the other
agencies of the country and work towards good governance. There has to be an able

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exercise of the power for the people. The present concerns in the administrative action
are as follow:

Administrative discretion
The discretionary powers given to the governmental or quasi-governmental authorities
must be hedged by policy, standards, and procedural safeguards failing which the
exercise of discretion and its delegation may be quashed by courts. The Administrative
Procedure Code in US provides the process by which the reviewing court or authority
‘shall hold unlawful and set aside agency action, findings found to be arbitrary,
capricious, and abusive of discretion and otherwise not in accordance with law’[Chapter
7 of the Administrative Procedure Code]7a . There should not be unguided discretion
given to the administrative authorities. The actions of the administrative authorities have
to be transparent and exercised within proper available limits.

Administrative instructions
Power to issue instructions flow from the general executive power of the administration.
Administrative instruction is the most effective technique for achieving uniformity in
administrative discretion. The instructions give flexibility to the administration devoid of
the technicality of rule making. Generally as instructions are issued not under statutory
authority they are considered as discretionary and are not unenforceable. This method of
administration which confers powers on the agencies to regulate the business of
governance is generally not transparent and provides scope for misuse of authority.

Official bias
This is one of the most baffling problems of administrative law as evident in the classic
case being the Gullapallii Nagashwara Rao Vs State of Andhra Pradesh8. In this case
Supreme Court quashed the decision of the State of AP nationalizing the road transport
on the grounds of departmental bias because Secretary of Transport who has initiated the
scheme also heard objections.

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Administrative decision making
Decision making is function carried out generally by the judiciary but to facilitate easy
governance the administrative authorities are allowed to adjudicate in certain issues.
There is a plethora of rules and procedure governing the judicial decision making and
therefore it is a much formalized process. There is no similar safeguard in the
administrative decision making and has lot of lapses.

Prosecutor and the Judge

In disciplinary proceedings under statutory rules like All India Civil Service Conduct
Rules, often the authority vested with power to discharge a quasi judicial function is both
a prosecutor and a judge. In most of the cases, the officer vested with the power of
decision often relies on the record prepared by his subordinates for prosecuting the
accused. In such a situation bias is inevitable. This was sorted out in US in the
Administrative Procedure Act (1946) where no officials with investigations or
prosecuting function can participate in the decision-making process.

Legal representatives
Many of the statutes do not permit appearance of legal representatives/advocates for
presenting the case. There is a need for uniformity in representing cases before the
agencies.

Evidence
The Supreme Court in many decisions observed that administrative tribunal/agencies are
not bound by strict rules of evidence. However they have to follow principles of natural
justice. This does not mean that they can act on something which is not evidence at all.
However in many of the disciplinary proceedings, decisions are made by the
administrative agencies giving a go by to the ‘no evidence rule’.

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Anonymity of decisions
Administrative agencies dispensing justice do not pronounce their decisions in the
presence of the concerned parties as in courts. It is not common to see citizens receiving
orders of decision of the administrative agencies in open courts. It goes against the
concept of fair hearing. The Administrative Procedure Act (1946) of USA solved this
problem through the Agency of Hearing Officers. Similar system is available in UK. If
administrative justice has to command respectability and public confidence in India, such
a system has to be developed.

Unpredictability of decisions
Predictability of decisions is an essential ingredient in the Rule of Law. In judicial
decisions there is predictability in the decision making process through the doctrine of
precedent. However, this is missing in administrative adjudication as they do not follow
the doctrine of precedent. Time and again, the Supreme Court advised administrative
agencies not to overrule their own decisions as there is no right of review for these
agencies.

Invisibility of decisions
Unlike courts not all administrative agencies exercising judicial power publish these
decisions. As the decisions are not in public domain there is virtually no scope for
determining the quality of these decisions.

Unsystematic system of appeal

Appeal is a safeguard against the administration of justice by a lower authority. There is
no uniformity in the present practice. Under the Medical Council Act appeal lies to the
Central Government; in few sections of Motor Vehicles Act appeal is not provided for
questioning on facts; in some enactments time for filing of appeals is also not clearly
spelt.

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Judicial interplay
Misuse or abuse of power by the executive necessarily forces the citizens to have
recourse to the precincts of courts. But the alarming delay in dispensation of justice
brings us to explore the mechanisms for expediting justice.

The following are the area where we need to work on before we start any discussion on
Judicial review of Administrative action

Independent judiciary
Independence of judiciary is one of the tenets of Rule of Law and corner stone on which
the democracy rests. The Constitution of India has set up an independent judiciary in the
country. The presence of an independent judiciary is essential for the proper governance
of the country and it should not be influenced by any factor in its working. The judiciary
has to carry out its functions in an unbiased and independent manner and there should be
no element of interference or influence in its working. There is a sense of apprehension
prevailing that the judicial appointments involve political decisions. Judges appointed
with political backings try to protect their political mentors who recommend appointing
them, thereby diluting the concept of independence of the judiciary. In a democracy law
should govern not personal favors or power.

Delay in judicial process

The World Bank rates India’s judicial and legal machinery as above average in the
international cross section of countries and as generally trusted by businesses. However,
64% of domestic firms find the court system expensive and 88% find it slow. This
perception is also generally shared by people from other sections of the Indian society.
Justice Krishna Iyer points out, “Speed is the last virtue of an Indian court, run on
medieval management methods, and allergic to technological facilities and streamlined
procedures”. The alarming delay in the judicial process can be judged from the statistics
given by the Parliament’s Standing Committee on Home Affairs in its 85th report.
According to the Committee, “35.4 lakh cases are pending in the 18 High Courts, the
pendency figures being 8 lakhs in the Allahabad High Court, 3.55 lakhs in Madras, 3.10

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lakhs in Calcutta, 3.08 lakhs in Kerala and 2.4 lakhs in Bombay. Cases have also been
pending for over 50, 40 and 30 years in the High Courts of MP, Patna, Rajasthan. There
is lot of delay in the dispensation of justice and justice delayed virtually amounts to
justice denied. The reasons for the delay is often said to be the inadequate judge strength
and the inadequacy of the number of courts and the infrastructure facilities in them.

THE QUESTION

Although it has been many years now since the study of administrative law has started,
we still know little about what is perhaps the central question in that field -:

How does Judicial Review actually affect agency decision-making?

This question goes to the fundamental nature and quality of the modern administrative
state.
The conventional; explanation for Judicial review of agency action is the need to confine
agencies to their legal authority. To deny that courts actually perform this task is to raise
dark and difficult question about the compatibility of the Administrative State with the
Rule of Law.

Judicial Review provides just one of a number of legal controls of Administrative

Action and its role is inevitable sporadic and peripheral (de Smith 1980)

…The effect of Judicial review on the practical exercise of power has now become
constant and central (de Smith 19951)

Judicial Review of Administrative Action

1
S A De Smith, Judicial Review of Administrative Action, p1 ( 4th edn.,1980 )

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Judicial Review of Administrative Action refers to the particular jurisdiction of the courts
to ensure that a governmental decision makers acts within the law. The exercise of legal
power may often involve the exercise of discretion to choose between alternative courses
of action or, indeed, whether or not to act at all. The essence of discretion is, however,
that it is contained within legal limits. A power not contained within such limits would be
arbitrary. The principles of Judicial Review serve to set legal limits to the exercise of
discretionary powers.

In Administrative Law (Eight Edition) (by H.W.R Wade & C.F.Forsyth), the learned
Authorsat pages 364 – 365 comment:

“The doctrine that powers must be exercised reasonably has to be reconciled with the no
less important doctrine that the court must not usurp the discretion of the public authority
which Parliament appointed to take the decision. Within the bounds of legal
reasonableness is the are in which the deciding authority has genuinely free discretion. If
it passes those bounds, it acts ultra vires. The court must therefore resist the temptation to
draw the bounds too tightly, merely according to its own opinion..”

This principle has been quoted with approval by our Supreme Court in G.B.Mahajan v.
Jalgaon Municipal Council2.
Some of the earlier decisions are in State of Mysore v. Sayed Mohamood3, State of
Mysore v. E.N.Nanjundiah4 The power to promote an officer belongs to the Executive
and the judicial power may control or review government action but cannot extend to
acting as if it were the Executive. The Court may issue directions but leave it to the
Executive to carry it out. The judiciary cannot promote or demote officials but may
demolish a bad order of Government or order reconsideration on correct principles.
“The distinction is drawn as to the cases in which this court may itself take a decision
which the Administrator ought to have taken, had he exercised his power lawfully, basing
on the nature of the decision making power conferred on the authority. If the decision is

2
(AIR 1991 SC 1153)
3
(AIR 1968 SC 1113)
4
(1969 (3) SCC 633)

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to be taken objectively on the basis of evidence and materials, like the decision of an
Industrial Tribunal or that of a statutory appellate authority, this court will be justified in
taking a decision for itself to avoid the agony of a remand and consequential delay. But,
where the decision to be arrived at is to be on the basis of the subjective satisfaction of
the Administrator and especially where a discretion is conferred on him to choose form
among various alternatives like in the case of imposition of penalty in a disciplinary
proceedings, the matter must definitely go to the Administrator for a decision in
accordance with law. In the case at hand, the subject matter relates to the exercise of
disposal of a representation filed against the adverse comments made by the reporting
officer in the confidential reports. The superior officers armed with their rich experience
in the department are pre-eminently suited for reviewing those adverse comments.”
When Parliament confers powers upon a public body by way of statute it will, in the
drafting and passing of the statute, normally have set limits to the power given. One
would expect the courts to engage in the process of defining the limits of the power as
expressed by Parliament. This is no more than fulfilling their function of statutory
interpretation.
The declared function of the courts in the context of Judicial Review is one of review
rather than appeal. That is, the courts are here concerned with the correctness of the
decision in law. They are not concerned with whether the decision is good on merits, i.e.
whether they agree with it. As asserted by Brightman in Chief Constable of North Wales
v. Evans (1982), the judges are concerned not with decision but with the decision making
process.
Air India Limited v. Cochin International Airport Limited 5. In support of the
proposition that where two views are possible the Court would not interfere, reliance is
placed on the decisions of the Apex Court Union of India Vs. Shatabdi Trading &
Investment Pvt. Ltd.6

In Air India v. Cochin International Airport Limited7, taking note of various earlier
decisions, including Ramana Dayaram Shetty Vs. International Airports Authority of

5
JT 2000 (1) SC 481/487
6
(2001) 6 SCC 748
7
JT 2000(1) SC 481

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India 8Tata Cellular Vs. Union Of India 9, their lordships of the Supreme Court observed
that the State, its corporations, instrumentalities and agencies are bound to adhere to the
norms, standards and procedures laid down by them and cannot depart from them
arbitrarily. Though that decision is not amenable to judicial review but the court can
examine the "decision making process" and interfere if it is found vitiated by mala fides,
unreasonableness or arbitrariness. It was held that even if some defect is found in the
decision making process, the Court must exercise its discretionary power under Article
226 with great caution and should exercise it only in furtherance of public interest and
not merely on the making out of a legal point. It was emphasized that the Court should
always keep larger public interest in mind in order to decide whether its intervention is
called for or not. Only when it comes to the conclusion that overwhelming public interest
requires interference, the court should intervene.

In Apparel Export Promotion Council v. A.K. Chopra10 The court made the following
observations:
“The purpose of judicial review is to ensure that the individual receives fair treatment,
and not to ensure that the authority, after according fair treatment, reaches on a matter
which it is authorized by law to decide for itself, a conclusion which is correct in the eyes
of the Court.”
It is useful to note the following observations of this Court in Union of India v. Sardar
Bahadur11
“Where there are some relevant materials which the authority has accepted and which
materials may reasonably support the conclusion that the officer is guilty, it is not
function of the High Court exercising its jurisdiction under Article 226 to review the
materials and to arrive at an independent finding on the materials.
If the enquiry has been properly held the question of adequacy or reliability of the
evidence cannot be canvassed before the High court.”

8
(1979) 3 SCC 489
9
(1994) 6 SCC 651
10
(AIR 1999 Supreme Court 625)
11
(1972) 4 SCC 618

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“The High Court/Tribunal, while exercising the power of judicial review, cannot
normally substitute its own conclusion on penalty and impose some other Penalty. If the
punishment imposed by the disciplinary authority or the appellate authority shocks the
conscience of the High Court/Tribunal, It would appropriately mould the relief, either
directing the disciplinary/ appellate authority to reconsider the penalty imposed or to
shorten the litigation, it may itself in exceptional and rare cases, impose appropriate
punishment with cogent reasons in support there of”

In Tata cellular v. Union of India12, Supreme Court has dealt extensively with the
question of Judicial Review of Administrative Action. The Supreme Court was of the
view that it cannot be denied that the principles of Judicial review would apply to the
exercise of contractual powers by government bodies in order to prevent arbitrariness or
favoritism. However, it must be clearly stated that there are inherent limitations in
exercise of that power of Judicial Review. Government is the guardian of the finances of
the state. It is expected to protect the financial interest of the State. The right to refuse the
lowest or another tender is always available to the government. But, the principles laid
down in Article 14 of the Constitution have to be kept in view while accepting or refusing
a tender. There can be no question of infringement of Article 14 if the government tries to
get the best person or the best quotation. The right to choose cannot be considered to be
an arbitrary power. Of course, if the said power is exercised for any collateral purpose the
exercise for any collateral purpose the exercise of the power will be struck down.
The principles deducible from the above case are:
(1) The modern trend points to judicial restraint in administrative action.
(2) The court does not sit as a court of appeal but merely reviews the manner in which the
decision was made.
(3) The court does not have the expertise to correct the administrative decision. If a
review of the administrative decision is permitted it will be substituting its own decision,
without the necessary expertise which itself may be fallible.
(4) The terms of the invitation to tender cannot be open to judicial scrutiny because the
invitation to tender is in the realm of contract. Normally speaking, the decision to accept

12
(1994) 6 SCC 651

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the tender or award the contract is reached by process of negotiations through several
tiers. More often than not, such decisions are made qualitatively by experts.
(5) The Government must have freedom of contract. In other words, a fair play in the
joints is a necessary concomitant for an administrative body functioning in an
administrative sphere or quasi-administrative sphere. However, the decision must not
only be tested by the application of Wednesbury principles of reasonableness (including
its other facts pointed out above) but must be free from arbitrariness not affected by bias
or actuated by mala fides.
(6) Quashing decisions may impose heavy administrative burden on the administration
and lead to increased and unbudgeted expenditure."

SUMMARISING

The duty of the court is to confine itself to the question of legality. It concern should be:
 Whether a decision making authority exceeded its power
 Committed an error of law
 Committed a breach of the rules of natural justice
 Reached a decision which no reasonable tribunal would have reached on
 Abused its power
The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds
upon which an administrative action subject to control by judicial review can be
classified as under:
1. Illegality: this means the decision makers must understand correctly the
maw that regulates his decision-making power and must give effect to it.
2. Irrationality, namely, Wednesbury unreasonableness. Wednesbury
principle is where a decision of a public authority will be liable to be
quashed or otherwise dealt with by an appropriate order in Judicial review
proceedings where the court concludes that the decision is such that no
authority properly directly itself on the relevant law and acting reasonably:
could have reached it.13
13
Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., per Lord Greene, M.R., (1948) 1 KB
233: (1947) 2 All ER 680

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 CONCLUSION

The above discussion unerringly points towards the permissibility and democratic nature
of the judicial review in India. The judicial review in India is absolutely essential and not
Undemocratic because the judiciary while interpreting the constitution or 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 against 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 lawmaking, 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
behaviour”.

References

 Sathe S.P., Administrative Law, 6th edn., Butterworths Publications, 1999.

 Craig P.P., Administrative Law, 2nd edn., Sweet and Maxwell, 1996.
 Fazal M.A, Judicial Control of Administrative Action, 3rd edn.,
Butterworths Publication, 2000.

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 Dr Jayaprakash Narayan (2003) “Judicial Reforms – Need of the Hour”.
Link: http://www.loksatta.org/Jud%20Reform.pdf,
 Iyer Krishna, V. R., (2003) “Judicial Odyssey: Calls for a Just Critique”,
Link: http://lawindiainfo.com/constitution/odyssey.html,
 KPMG (1997) “Introduction of Results Oriented Management – Judiciary
(internal document”, Government of Uganda. 10.Mahadevan, K. S.,
(2003) “Who is Stalling Judicial Reform?” Link:
http://www.chennaionline.com/columns/life/life63.asp,
 NALSAR & Centre for Good Governance, (2004), “Judicial Process
Review”, Centre for Good Governance, Hyderabad.
 Report of the National Commission to Review the Working of the
Constitution ,2000
 http://in.geocities.com/kstability/projects/integrity2/anticor1.html,

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