Effectiveness of a country’s administrative system is dependent on the effectiveness through which it provides redressal and remedy to the aggrieved person. Judicial control is a controlling mechanism for administrative action. Judicial control over the administrative actions is necessary so that all public authorities function in accordance to rule of law. Absolute power corrupts absolutely, hence there should be a judicial check of administrative powers.
Judicial control over these authorities is necessary so that these public authorities don’t go berserk. The job of the judiciary is to keep public bodies within their allocated jurisdiction/authority. It can annul any law or scheme which is ultra vires or unconstitutional. It checks that public bodies don’t take any unreasonable, arbitrary or discriminatory action. In the contemporary era, the doctrine of legitimate expectation, promissory estoppels have started emerging to control administrative actions. It ensures that compensation could be awarded when there are violations. It ensures a system of good governance.
Methods of Seeking Redressal
The methods of seeking redressal are through writs, appeals, a reference to courts, injunctions, suit for damages, damage for tortious action of the administration and breach of contract between the state and a private person, etc. The Indian constitution recognizes various provisions which promote judicial control over the administration. The Supreme court can issue writs under article 32 while high courts under Article 226. Under article 227, the High court has the power to supervise the working of tribunals and other adjudicatory bodies within a territorial limit. Article 136 provides the provision to appeal against decisions of tribunals and courts to the Supreme Court. Apart from all of these constitutional provisions, there is much other legislation which exercises control over administrative actions. Article 32, 136, 226 and 227 create a strong mechanism for judicial control over administrative authorities, which basically implies that all administrative actions can be subjected to judicial review. Reference means when any administrative body seeks the opinion of the court on any question of law.
Judicial Review and Judicial Control
Judicial review and judicial control have few differences. Judicial review is more restrictive where it deals with the writ system under article 32 and 226. Judicial control has a broader connotation, it subsumes judicial review in itself. It also includes all sorts of different methods of seeking relief like appeal, writs, reference, declaration and other statutory remedies.
Judicial review in practice is very different as there are so many technicalities and costs that it defeats the purpose of speedy and economical justice. There is sometimes so much delay in listing of cases like in Neelima Misra v Harminder [1]she filed the petition in 1978, and the matter got listed after ten years in 1988.
Judicial review is available in both cases of substantive ultra vires and procedural ultra vires. Substantive Ultra Vires involves the violation of the Constitution or enabling act or any other relevant statute. Procedural Ultra Vires deals with the violation of procedural aspects—notification, consultation, prior approval. Writ of Mandamus could also be issued for mandatory administrative actions. Primary or secondary legislation cannot in any manner dilute/take away the power of judicial review of admin actions.
Judicial review is curative control and available for all admin actions even for quasi-legislative activities. Delegated legislation is also subjected to Judicial Review. If Delegated legislation is in contravention to any provision of the constitution, or enabling act or any other statute, SC can strike down it on grounds on substantive ultra vires. If procedural requirements mentioned in the enabling act is not followed by delegated legislation, SC can strike down it on grounds of procedural ultra vires. If there is non-application of mind or sub-delegation of discretionary power, there is judicial review of such discretionary powers.
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Grounds of judicial review
Grounds of judicial review which is only on the decision-making process-
Illegality
It deals with substantive ultra vires like where there is excess or lack of jurisdiction. For example under the land acquisition act, any area of land can be acquired for a public purpose but if it is being occupied for other purposes then it is illegal and subjected to judicial review. Ignorance of law when it is coupled with the arrogance it becomes detrimental to good governance. Illegality can never be legalized. Back door appointment of teachers can never be legalised, illegal actions are null and void at every stage.
In Ganpat Singh v. Gulbarga University[2], the selection committee recruited a person to the post of a lecturer who didn’t possess the required qualifications. That person continued to receive a salary for the next ten years. This amount was not recovered; public resources were carelessly spent on account of errors made by the selection committee.
Irrationality
Wednesbury Corporation[3]gave three principles in lieu of this. If the corporation in question does not take into account relevant factors, or take into consideration all sorts of irrelevant factors.
Like in the case of H.C Gragi [4]which dealt with state order of compulsory requirement on doubtful integrity. They took into account his ACR which is a measure of someone’s performance but not a reflection of someone’s honesty. They took it into irrelevant consideration. And the subsequent decision taken is too unreasonable and discriminatory. In that case, the judiciary has the right to intervene. In case of appointment, instead of merit reference is taken into consideration, all of these are irrelevant considerations.
Proportionality
It is also applicable to all quasi-legislative actions. Cases, where punishment is given, is not in proportionate with the misconduct. The punishment given is irrational, unduly harsh and reflects bias as in the case of Ranjit thakur[5]. He had few grievances with the commanding officer, he drafted a letter about the same to a senior officer. The commanding officer charged him that he broke the service laws and imprisoned him for 28 days, during this period he refused to take meals. Subsequently, a court-martial was constituted and he was removed from the post.SC held that this is a violation of principles of natural justice and dismissing someone for not taking meals in disproportionate admin action, hence his termination should be struck down.
Administrative action has to be in pro-rata with the mandate. A case where a worker went to strike his service was terminated, SC could strike down such order.
Procedural impropriety
Where there is a violation of principles of natural justice and other procedural requirements. Principles of natural justice ought to be followed in pure administrative actions with civil consequences and quasi-judicial actions. If they are procedural requirements such as notice, speaking order, prior approval, consultation, all of these have to be followed. In Narain case, the requirement was to consult the Board of higher education but only the chief consulted, the court struck down the order on compliance of non-consultation.
Legitimate expectations
This doctrine deals with unilateral promise and consistent past practices. Those past practices should be a consistent, legal and reasonable one. It is different from promissory estoppels. Promissory estoppels are a bilateral promise and a legal right while In Ram Prakash Singh v State of Bihar[6] the court ruled that legitimate expectation is a unilateral promise and not a legal right. It is the expectation of damage/relief/interest which flows from the established practice of unilateral promise. First three are traditional tests (illegality, irrationality, procedural impropriety), latter two are modern tests (proportionality and legitimate expectation)
The court through judicial review has effectively protected human rights, fundamental rights and individual right to life. The doctrine of personal accountability in India is in a nascent stage, it is still developing. Person accountability means if a public servant was negligent, then he should pay from his pocket. At present, there is as such no specific regulation which regulates person accountability of individuals. But there are few cases which have upheld it like Lucknow development Authority v MK gupta[7], in this case, LDA undertook a development project to establish housing facilities for individuals. The petitioner deposited the entire money but he was still not given the possession of the flat as its construction was incomplete. The Supreme Court in this case upheld the rule of law and delivered a judgement which would empower ordinary citizens. The court ordered LDA to take responsibility and provide compensation to the petitioner. Such judgement sends a message across that the public shouldn’t be taken as granted. The money of public authority is tax-payer money, hence taxpayers shouldn’t be burdened to pay on account of the personal accounts of employees. Court held that it is the public official who has to pay for his negligence.
In IR Coelho v State of Tamil Nadu[8], it was held that equality, rule of law, separation of power and judicial review forms part of the basic structure of the constitution. 9th schedule is also subjected to JR. The supreme court is of the view that the protection of fundamental rights is essentially linked to the concept of judicial review. The Judiciary in many ways checked the abuse of powers by administrative authorities and tried to make the administration accountable for good governance and transparency.
References:
[1] Neelima Misra v Harminder 1990 AIR 1402, 1990 SCR (2) 84
[2] Ganpat Singh v. Gulbarga University (2014) 3 SCC 767
[3] Associated Provincial Picture Houses v. Wednesbury Corporation [1947] EWCA Civ 1, [1948] 1 K.B. 223, Court of Appeal (England and Wales)
[4] H.C. Gargi vs State Of Haryana AIR 1987 SC 65, (1987)
[5] Ranjit Thakur vs Union Of India 1987 AIR 2386, 1988 SCR (1) 512
[6] Ram Prakash Singh v/s State of Bihar. Criminal Appeal No. 819 of 1995.
[7] Lucknow Development Authority v MK Gupta 1994 AIR 787, 1994 SCC (1) 243
[8] IR Coelho v State of Tamil Nadu AIR 2007 SC 861
BY ANAMTA KHAN | NATIONAL LAW UNIVERSITY, DELHI