Judicial Review of Administra ve ac on

SEPTEMBER 30, 2016 0

Judicial Review of Administra ve ac on is part of enforcing the cons tu onal discipline over the administr
agencies while exercising their powers. It has origin in England which was adopted in common law countries.
too inherited the idea of judicial review from England. India had laid its structure on English preroga ve
pa ern which was issued by the court of King’s Bench with a view to exercise general superintendence ove
due observance of law by officials/ authori es while performing judicial or non-judicial func ons.

Judicial Review is a great weapon through which arbitrary, unjust, harassing and uncons tu onal laws
checked. Judicial review is the cornerstone of cons tu onalism, which implies limited Government.

Administra ve ac on is the residuary ac on which is neither legisla ve nor judicial. It is concerned with
treatment of a par cular situa on and is devoid of generality. It has no procedural obliga ons of colle
evidence and weighing argument. It is based on subjec ve sa sfac on where decision is based on policy
expediency. It does not decide a right though it may affect a right. However, it does not mean that the princ
of natural jus ce can be ignored completely when the authority is exercising “administra ve powers”. Unless
statute provides otherwise, a minimum of the principles of natural jus ce must always be observed dependin
the fact situa on of each case.

Administra ve ac on may be statutory, having the force of law, or non-statutory, devoid of such legal force.
bulk of the administra ve ac on is statutory because a statute or the Cons tu on gives it a legal force b
some cases it may be non-statutory, such as issuing direc ons to subordinates not having the force of law, bu
viola on may be visited with disciplinary ac on. Though by and large administra ve ac on is discre onary a
based on subjec ve sa sfac on, however, the administra ve authority must act fairly, impar ally and reasona

In the process of judicial review of legisla ve and execu ve ac on, the courts pick out the golden thread of re
and meaning in a law; they shape and mould the law, reveal its fitness and nuances, smooth the angular
strike down the bad law or illegal ac on, and most essen al to all, exert the strong moral forces of restrai
mes when expediency is all.

Grounds for Judicial Review of Administra ve Ac ons:-

Illegality

Irra onality

Procedural impropriety

Propor onality
Relief – Five types of writs are available for judicial review of administra ve ac ons under Ar cle 32,
Ar cle 226 of the Indian Cons tu on.

Writ of Habeas Corpus literally means “You may have the body” this writ is issue to secure the release of pe
from illegal deten on or without legal jus fica on, its deals with person right of freedom. In simple words C
direct the person and even authority who has detained individual to bring such person before Court so that C
may decide the validity, jus fica on, jurisdic on of such deten on. It is to be filed by any person.

Writ of Mandamus means “To command the public authority” to perform its public duty in India.
discre onary remedy even as all five writs are discre onary remedy in nature. Court has full power to refus
entertain a writ pe on. This writ cannot be issued on President or Governor.

Writ of Quo Warranto is an ancient common law remedy. It is used against an intruder or usurper of public o
Literally means “What is your authority”. Court directs the concerned person that by what authority he hold
office. The Court may expel a person from the office if he finds that he is not en tled to obtain such office.

Writ of Prohibi on is an extraordinary preroga ve writ of preven on; it seeks to prevent Courts, Tribunals, Q
judicial authori es and officers from exceeding their jurisdic on. Main objec ve of this writ is to prevent
encroachment of jurisdic on. It is based upon the famous saying “Preven on is be er than cure.”

Writ of Cer orari deals with a method to bring the record of subordinate Court before the superior Cour
correc on of jurisdic on or error of law commi ed by them. In simple word if any inferior Court decided the
beyond its powers than Apex Court and High Courts correct the error by issuing this writ. Earlier it was use
criminal ma ers but later on it was started to use in civil cases too. Grounds for issue of this writ are –

excess or failure to exercise the jurisdic on

viola on of natural jus ce rules such as right of no ce and hearing

viola on of fundamental rights or statutory provisions of laws

Finding of facts which no person would have reached to the conclusion.