2018-2019

ADMINISTRATIVE LAW- FINAL DRAFT

TOPIC –JUDICIAL REVIEW AND ITS GROUNDS

SUBMITTED TO: SUBMITTED BY:

Dr. RajneeshYadav Himanshu Malik

Assistant Professor (Law) Semester V

Dr.Ram Manohar Lohiya National Law Section “A”

University, Enrollment Number-160101078

Lucknow.

1|Page
 ACKNOWLEDGEMENT

“The only thing that overcomes hard luck is hard work.”

Writing a project on any topic is never a single man’s job. I am overwhelmed in all humbleness
and gratefulness to acknowledge my depth to all those who have helped me to put these ideas,
well above the level of simplicity and into something concrete.

I am very thankful to my professor Dr. RajneeshYadav

for their valuable help. They were always there to show me the right track when I needed their
help. With the help of their valuable suggestions, guidance and encouragement, I was able to
complete this project. I would also like to thank my friends, who often helped and gave me
support at critical junctures during the making to this project.

I hope you will appreciate the hard work that I have put in this project work.

Himanshu Malik

2|Page
 TABLE OF CONTENTS

ACKNOWLEDGEMENT .............................................................................................................. 2

INTRODUCTION AND ORIGIN .................................................................................................. 4

DOCTRINES FORMULATED BY COURTS THROUGH JUDICIAL INTERPRETATIONS .. 8

JUDICIAL REVIEW OF CONSTITUTIONAL AMENDMENTS ............................................. 11

JUDICIAL REVIEW OF PARLIAMENTARY AND STATE LEGISLATIVE ACTIONS ...... 14

JUDICIAL REVIEW OF ADMINISTRATIVE ACTIONS ........................................................ 16

GROUNDS FOR JUDICIAL REVIEW ....................................................................................... 17

CURRENT POSITION OF JUDICIAL REVIEW IN INDIA ..................................................... 22

CONCLUSION ............................................................................................................................. 23

3|Page
 INDEX OF AUTHORITIES

Cases

A.K Gopalan v. State of Madras, A.I.R. 1950 S.C. 27. .................................................................. 9

A.K. Gopalan v. State of Madras, (1950) S.C.R. 88 (100) ........................................................... 23
Agricultural Horticultural and Forestry Industry Training Board v. Aylesbury Mushrooms Ltd,
[1972] 1 All. E.R. 280............................................................................................................... 20
Annie Besant v. Government of Madras, AIR 1918 Mad. 1210. .................................................... 8
Associated Provincial Picture House v. Wednesbury, (1948) 1 K.B. 223.................................... 19
Bhikaji Narain Dharkras vs. State of M.P. , A.I.R. 1955 S.C. ..................................................... 10
Bradbury v. Enfield London Borough Council, [1967] 3 All. E.R. 434 ....................................... 20
Emperor v. Burah, [1877] 3 I.L.R. 63 (Cal.) .................................................................................. 8
Golak Nath vs. State of Punjab, A.I.R. 1967 S.C. 1643. ............................................................. 12
Hind Construction Co. vs. Workmen, A.I.R. 1965 S.C. 917......................................................... 21
Keshavananda Bharti vs. State of kerela, A.I.R. 1973 S.C. 1461 ................................................ 13
I.R. Coelho v. State of Tamil Nadu, A.I.R. 2007 S.C. 861............................................................ 23
Indira Nehru Gandhi vs. Raj Narayan, A.I.R. 1980 S.C. 1789. ................................................... 13
Jatinder Kumar vs. State of Haryana, (2008) 2 S.C.C. 161 ......................................................... 22
L Chandra vs. Union of India, A.I.R. 1R7 A.S.C. 1125. .............................................................. 16
Madras Bar Association v. Union of India, Writ Petition (C) No. 1072 Of 2013. ....................... 23
R vs. Derbyshire County Council, ex p Times Supplements, (1991) C.O.D. 129 ......................... 19
R vs. Richmond upon Thames Council ex parte McCarthy & Stone Ltd 868, [1992] 2 A.C. 48.. 18
R vs. Somerset County Council, ex p Fewings, [1995] 3 All. E.R. 20 .......................................... 19
R. vs. Minister of Transport, (1934) 1 K.B. 277 ........................................................................... 18
R.P. Singh vs. State of Bihar, (2006) 8 S.C.C. 381 ....................................................................... 22
Rafiq Khan vs. State of U.P., A.I.R. 1954 All. 3. ......................................................................... 18
Roberts v. Hopwood, (1925) A.C. 578.......................................................................................... 20
Sajjan Singh v. State of Rajasthan, A.I.R. 1965 S.C. 845. ........................................................... 12
Secretary of State v. Moment, [1913] 40 I.L.R. 391 (Cal.) ............................................................. 8

4|Page
Shankari Prasad v. Union of India, A.I.R. 1951 S.C. 455. .......................................................... 12
SP Sampat kumar vs. Union of India, 1987 1 S.C.C. 124 ............................................................. 15
Supreme Court Advocates on Record Association v. Union of India, Writ Petition (Civil) No. 13
of 2015. ..................................................................................................................................... 23

Statutes

Indian Constitution, 1950 art. 245 ................................................................................................ 15

Indian Constitution, 1950 art. 246 ................................................................................................ 15
Indian Constitution, 1950 art. 368. ............................................................................................... 14
Indian Constitutition, 1950 Art. 13. ................................................................................................ 9

Books

DR. J.N. PANDEY, The Constitutional Law Of India (Central Law Agency, Allahabad, 2012) 13
Justice CK Thakkar , Justice Arijit Pasayat, Dr. CD Jha, Judicial Review of Legislative Acts 116
(2d ed. Lexis Nexis Butterworths Wadhwa, Nagpur 2009). ....................................................... 7
MP SINGH, CONSTITUTION OF INDIA 999 (Eastern Book Company 2008).......................... 13

5|Page
 INTRODUCTION AND ORIGIN

Supremacy of law is essence of Judicial Review. It is power of the court to review the actions of
legislative and executive and also review the actions of judiciary , it is the power to scrutinize the
validity of law or any action whether it is valid or not. It is a concept of Rule of Law. Judicial
Review is the check and balance mechanism to maintain the separation of powers. Separation of
power has rooted the scope of Judicial Review. It is the great weapon in the hands of the court to
hold unconstitutional and unenforceable any law and order which is inconsistent or in conflict
with the basic law of the land. The two principal basis of judicial review are “Theory of Limited
Government” and “Supremacy of constitution with the requirement that ordinary law must
confirm to the Constitutional law”.

The ostensible purpose of judicial review is to vindicate some alleged right of one parties to
litigation and thus grant relief to the aggrieved party by declaring an enactment void, if in law it
is void, in the judgment of the court. But the real purpose is something higher i.e., no statute
which is repugnant to the constitution should be enforced by courts of law.1

ORIGIN:

The concept of Judicial Review is basically originated in USA in the historic landmark case
Marbury vs. Madison2. The doctrine of Judicial Review of United States of America is really the
pioneer of Judicial Review in other Constitutions of the world which evolved after the 18th
century and in India also it has been a matter of great inspiration .In India the concept of Judicial
Review is founded on the Rule of Law which is the swollen with pride heritage of the ancient
Indian culture and society. Only in the methods of working of Judicial Review and in its form of
application there have been characteristic changes, but the basic philosophy upon which the
doctrine of Judicial Review hinges is the same. In India, since Government of India Act, 1858
and Indian Council Act, 1861 imposed some restrictions on the powers of Governor General in
Council in evading laws, but there was no provision of judicial review. The court had only power

1
Justice CK Thakkar , Justice Arijit Pasayat, Dr. CD Jha, Judicial Review of Legislative Acts 116 (2d ed. Lexis
Nexis Butterworths Wadhwa, Nagpur 2009).
2
Marbury v. Madison, 5 U.S. 137 (1803).

6|Page
to implicate. But in 1877, Emperor v. Burah3 was the first case which interpreted and originated
the concept of judicial review in India. In this case court held that aggrieved party had right to
challenge the constitutionality of a legislative Act enacted by the Governor General council in
excess of the power given to him by the Imperial Parliament. In this case the High court and
Privy Council adopted the view that Indian courts had power of judicial review with some
limitations. Again in, Secretary of State v. Moment4, Lord Haldane observed that “the
Government of India cannot by legislation take away the right of the Indian subject conferred by
the Parliament Act i.e. Government of India Act of 1858”. Then, in Annie Besant v. Government
of Madras5 , Madras high court observed on the basis of Privy council decision that there was a
fundamental difference between the legislative powers of the Imperial Parliament and the
authority of the subordinate Indian Legislature, and any enactment of the Indian Legislature in
excess of the delegated powers or in violation of the limitation imposed by the imperial
Parliament will null and void.80” Though there is no specific provision of the Judicial Review in
Government of India Act, 1935 and the constitutional problems arising before the court
necessitated the adoption of Judicial Review in a wider perspective. Now, Constitution of India,
1950 explicitly establishes the Doctrine of Judicial Review under various Articles.

3
Emperor v. Burah, [1877] 3 I.L.R. 63 (Cal.)
4
Secretary of State v. Moment, [1913] 40 I.L.R. 391 (Cal.)
5
Annie Besant v. Government of Madras, AIR 1918 Mad. 1210.

7|Page
 DOCTRINES FORMULATED BY COURTS THROUGH JUDICIAL
INTERPRETATIONS

Article 136 incorporates “Judicial Review of Post constitution and Preconstitutional laws”. This
Article inherited most important doctrines of judicial review like Doctrine of Severability,
Doctrine of Eclipse. Article 13 provides for the “judicial review” of all the legislations in India,
past as well as future.

Some other doctrines are formulated by courts using the power of judicial review are Doctrine of
Pith and Substance, Doctrine of Colorable legislation. These doctrines are originated by Supreme
Court by using power of judicial review through interpreting various Articles. Judicial review in
India is based on various dimensions like judicial review of legislative, executive and judicial
acts which are explicitly provided in these doctrines:

1) Doctrine of Severablity: Art. 13 of the Indian constitution incorporates this doctrine. In,
Art. 13 the word” to the extent of contravention” are the basis of Doctrine of Severability.
This doctrine enumerates that the court can separate the offending part unconstitutional of
the impugned legislation from the rest of its legislation. Other parts of the legislation
shall remain operative, if that is possible. This doctrine has been considerations of equity
and prudence. It the valid and invalid parts are so inextricably mixed up that they cannot
be separated the entire provision is to be void. This is known as “doctrine of severability”

In A.K Gopalan v. State of Madras7 case, section 14 of Prevention Detention Act was
found out to be in violation of Article 14 of the constitution. It was held by the Supreme
Court that it is Section 14 of the Act which is to be struck down not the act as a whole. It
was also held that the omission of Section 14 of the Act will not change the object of the
Act and hence it is severable. Supreme Court by applying doctrine of severability
invalidates the impugned law.

6
Indian Constitutition, 1950 Art. 13.
7
A.K Gopalan v. State of Madras, A.I.R. 1950 S.C. 27.

8|Page
 2) Doctrine of Eclipse: This doctrine applies to a case of a pre constitution statute. Under
Art. 13(1) of the constitution, all pre constitution statutes which are inconsistent to part 3
of the constitution become unenforceable and unconstitutional after the enactment of the
constitution. Thus, when such statutes were enacted they were fully valid and operative.
They become eclipsed on account of Art. 13 and lost their validity. This is called
“Doctrine of Eclipse”. If the constitutional ban is removed, the statute becomes free from
eclipse, and becomes enforceable again.
In Bhikaji Narain Dharkras v. State of M.P.8, an existing State law authorized the State
Govt to exclude all the private motor transport operators from the field of transport
business. After this parts of this law became void on the commencement of the
constitution as it infringed the provisions of Art. 19(1)(g) and could not be justified under
the provisions of Art.19(6) of the constitution. First Amendment Act, 1951 amended the
Art. 19(6) and due to this Amendment permitted the Government to monopolize any
business. The Supreme Court held that after the Amendment of clause (6) of Art. 19, the
constitutional impediment was removed and the impugned Act ceased to be
unconstitutional and became operative and enforceable.

3) Doctrine of Prospective Overrulling: The basic meaning of prospective overruling is to

construe an earlier decision in a way so as to suit the present day needs, but in such a way
that it does not create a binding effect upon the parties to the original case or other parties
bound by the precedent.. The use of this doctrine overrules an earlier laid down precedent
with effect limited to future cases and all the events that occurred before it are bound by
the old precedent itself. In simpler terms it means that the court is laying down a new law
for the future. . This doctrine was propounded in India in the case of Golak Nath v. State
of Punjab.9

In this case the court overruled the decisions laid down in Sajjan Singh10 and Shankari
Prasad11, cases and propounded Doctrine of Prospective Overruling. The Judges of

8
Bhikaji Narain Dharkras vs. State of M.P. , A.I.R. 1955 S.C.
9
Golak Nath vs. State of Punjab, A.I.R. 1967 S.C. 1643.
10
Sajjan Singh v State of Rajasthan, AIR 1965 SC 845.
11
Shankari Prasad v. Union of India, A.I.R. 1951 S.C. 455.

9|Page
 Supreme Court of India laid down its view on this doctrine in a very substantive way, by
saying "The doctrine of prospective overruling is a modern doctrine suitable for a fast
moving society.” The Supreme Court applied the doctrine of prospective overruling and
held that this decision will have only prospective operation and therefore, the first, fourth
and nineteenth Amendment will continue to be valid.

Our Indian Constitution, Judicial Review is explicitly provided in three dimensions such as
Judicial Review of Constitutional Amendments, Judicial Review of Parliament and State
Legislation and also Judicial Review of Administrative actions of Executives.

10 | P a g e
 JUDICIAL REVIEW OF CONSTITUTIONAL AMENDMENTS

In India, constitutional amendments are very rigid in nature. Although Supreme Court of India is
the guardian of Indian Constitution, therefore, Supreme Court time to time scrutinize the validity
of constitutional amendment laws, parliament has the supreme power to amend the constitution
but cannot abrogate the basic structure of the constitution. But, there was a conflict between
Court and Parliament regarding Constitutional Amendment that whether fundamental rights are
amendable under Article 368 or not?

The question whether fundamental rights can be amended under Art. 368 came for consideration
of the Supreme Court in Shankari Prasad v. Union of India12, the first case on amenability of the
constitution the validity of the constitution (1st Amendment) Act, 1951, curtailing the “Right to
Property” guaranteed by Article 31 was challenged. The Supreme Court rejected the argument
given and held that the power to amend the constitution including the fundamental rights is
contained in Art. 368, and that the word ‘law’ in Art. 13(2) includes only an ordinary law made
in exercise of the legislative powers and does not include constitutional amendment which is
made in exercise of constituent power. Therefore, a constitutional amendment will be valid even
if it abridges or takes any of the fundamental rights.

Again , In 1964 Sajjan Singh v. Rajasthan13, the same question was raised when the validity of
the Constitution (Seventeenth Amendment)Act, 1964, was called in question and once again the
court revised its earlier view that constitutional amendments, made under Art. 368 are outside the
purview of Judicial Review of the Courts. In this case the Constitution (17th Amendment) Act,
1964 was challenged an upheld.

After two years, after the decision of Sajjan singh14 , in 1967 in Golak Nath v. State of Punjab15,
the same question regarding constitutional amendment was raised. The Supreme Court overruled
the decision of Shankari Prasad and Sajjan singh’s case. The Supreme Court observed that “An
amendment is a ‘law’ within the meaning of Art. 13(2) included every kind of law, “statutory as

12
Shankari Prasad v. Union of India, A.I.R. 1951 S.C. 455.
13
Sajjan Singh v. State of Rajasthan, A.I.R. 1965 S.C. 845.
14
Sajjan Singh v. State of Rajasthan, A.I.R. 1965 S.C. 845.
15
Golak Nath vs. State of Punjab, A.I.R. 1967 S.C. 1643.

11 | P a g e
well as constitutional law” and hence a constitutional amendment which contravened Art. 13(2)
will be declared void.” Court further observed that “The power of Parliament to amend the
constitution is derived from Art.245, read with Entry 97 of list 1 of the Constitution and not from
Art.368. Article 368 only lays down the procedure for amendment of Constitution. Amendment
is a legislative process.”16

The minority view of five out of eleven judges was the word ‘law’ in Art. 13(2) refers to only
ordinary law and not a constitutional amendment and hence Shankari Prasad and Sajjan Singh
case rightly decided. According to them, Art. 368 dealt with only the procedure of amending the
constitution but also contained the power to amend the constitution.17

Once again the Supreme Court was called upon to consider the validity of the Twenty Fourth,
Twenty Fifth and Twenty Ninth Amendment in the famous case Keshavananda Bharti vs. State
of kerela18 which is also known as “Fundamental Rights Case”. The Supreme Court overruled
the Golak Nath’s case and held that under Art. 368, Parliament can amend the fundamental rights
but cannot take or abridges the Basic Structure of the Constitution”. “Theory of Basic Structure:
A Limitation on Amending Power” was propounded by Supreme Court through Doctrine of
Judicial Review.

In Indira Nehru Gandhi vs. Raj Narayan19, the amendment was made to validate with
retrospective effect the election of the then Prime Minister which was set aside by the Allahabad
High Court. The Supreme Court struck down clause (4) of Art.329-A which was the offending
clause inserted in (39th Amendment) to validate the election with retrospective effect. Khanna .J.
struck down the clause on the ground that “it violated the free and fair elections which was an
essential postulate of democracy which in turn was a basic structure of the constitution”.

Again in Minerva Mills vs. Union of India20, a petition challenged the constitutional validity of
clauses (4) and (5) of Article 368, introduced by Sec.55 of 42nd Amendment. If these clauses
were held valid then petitioner could not challenge the validity of the 39th Amendment which
had placed the Nationalization Act, 1974, in the IX schedule. S. 55 of the Constitution (42nd

16
MP SINGH, CONSTITUTION OF INDIA 999 (Eastern Book Company 2008).
17
DR. J.N. PANDEY, The Constitutional Law Of India (Central Law Agency, Allahabad, 2012).
18
Keshavananda Bharti vs. State of kerela, A.I.R. 1973 S.C. 1461.
19
Indira Nehru Gandhi vs. Raj Narayan, A.I.R. 1980 S.C. 1789.
20
Minerva Mills vs. Union of India, A.I.R. 1975 S.C. 2299.

12 | P a g e
Amendment) Act, 1976 inserted sub-sections (40 and (5) in Art. 368. The Supreme Court struck
down clauses (4) and (5) of Art. 36821 inserted by the 42nd Amendment on the ground that these
clauses destroyed the basic feature of the basic structure of the Constitution. Limited amending
power is a basic feature of Constitution and these clauses removed all limitations on the
amending power and thereby conferred an unlimited amending power, and it was destructive of
the basic feature of the Constitution.”

S. 55 of the Constitution (42nd Amendment) Act, 1976 inserted sub-sections (40 and (5) in Art.
368. The Supreme Court struck down clauses (4) and (5) of Art. 368 inserted by the 42nd
Amendment on the ground that these clauses destroyed the basic feature of the basic structure of
the Constitution. Limited amending power is a basic feature of Constitution and these clauses
removed all limitations on the amending power and thereby conferred an unlimited amending
power, and it was destructive of the basic feature of the Constitution.

Through these cases Supreme Court scrutinize the validity of constitutional Amendment Law by
using the Doctrine of Judicial Review. By scrutinizing the judicial decisions Supreme Court also
interpreted various provisions such as Art. 13,368 and also ensure the Supremacy of the
Constitution which the basic feature of the Constitution.

21
Indian Constitution, 1950 art. 368.

13 | P a g e
JUDICIAL REVIEW OF PARLIAMENTARY AND STATE LEGISLATIVE
ACTIONS

Art. 24522 and 24623 of the Indian constitution gives legislatives powers to Parliament and State
Legislatures. The word “subject” to the provisions of the constitution” in Article 246 imposed
limitations to the Parliament and State Legislature to make legislation. These words are the
essence of Judicial Review of legislative actions in India. It ensures that legislation should be
within the limitations of constitutional provision. These words provide power to the Courts to
scrutinize the validity of legislation. The Supreme Court has supreme power under Art. 141
which incorporates “Doctrine of Precedent” to implement its own view regarding any conflicted
issue and it’s also have binding force. Supreme Court gives us some relevant observations
through judicial decisions regarding the legislative actions of Parliament and State Legislatures.

In SP Sampat kumar vs. Union of India24 the constitutional validity of Administrative Tribunal
Act, 1985, was challenged on the ground that that the impugned Act by excluding the
jurisdiction of the High Courts under Art. 226 and 227 in service matters had destroyed the
judicial review which was an essential feature of the constitution. The Supreme Court held that
though the Act has excluded the judicial review exercised by the High Courts in service matters,
but it has not excluded it wholly as the jurisdiction of the Supreme Court under Art. 32 and 136.

Further held that” a law passed under Art. 323-A providing for the exclusion of the jurisdiction
of the High Courts must provide an effective alternative institutional mechanism of authority of
judicial review. The judicial review which is an essential feature of the constitution can be taken
away from the particular area only if an alternative effective institutional mechanism or authority
is provided.”

In L Chandra vs. Union of India25, clause 2(d) of Art. 323-A and clause 3(d) of Art.323-B was
challenged on the ground that these clauses excludes the jurisdiction of High Courts in service
matters. The Constitutional Bench unanimously held that “these provisions are to the extent they

22
Indian Constitution, 1950 art. 245
23
Indian Constitution, 1950 art. 246
24
SP Sampat kumar vs. Union of India, 1987 1 S.C.C. 124.
25
L Chandra vs. Union of India, A.I.R. 1R7 A.S.C. 1125.

14 | P a g e
exclude the jurisdiction of the. High Courts and Supreme Courts under Art.226/227 and 32 of the
constitution are unconstitutional as they damage the power of judicial review. The power of
judicial review over Legislative Actions vested in the High Courts and Supreme Court under Art.
226/227 and Art.32 is an inteegral part and it also formed part of its basic structure.”

Then, in the recent scenario,I.R. Coelho vs. State of Tamil Nadu26 , the petitioner had challenged
the various Central and State laws put in the Ninth Schedule including the Tamil Nadu
Reservation Act. The Nine Judges Bench held that “any law placed in the Ninth Schedule after
April 24, 1973 when Keshvananda Bharati’s case judgment was delivered will open to challenge,
the court said that the validity of any Ninth Schedule law has been upheld by the Supreme Court
and it would not be open to challenge it again , but if a law is held to be violation of fundamental
rights incorporated in Ninth Schedule after the judgment date of Keshvanand Bharati‘s case,
such a violation shall be open to challenge on the ground that it destroy or damages the basic
structure of constitution”. The Supreme Court observed that “Judicial Review of legislative
actions on the touchstone of the basic structure of the constitution”

26
I.R. Coelho v. State of Tamil Nadu, A.I.R. 2007 S.C. 861.

15 | P a g e
 JUDICIAL REVIEW OF ADMINISTRATIVE ACTIONS

The system of judicial review of administrative action in India came from Britain. Judicial
Review of Administrative action is perhaps the most important development in the field of public
law. The Doctrine of Judicial Review is embodied in the Constitution and the subject can
approach High Court and Supreme Court for the enforcement of fundamental right guaranteed
under the Constitution. If the executive or the Government abuses the power vested in it or if the
action id mala fide, the same can be quashed by the ordinary courts of law. All the rule,
regulations, ordinances, bye-laws, notifications, customs and usages are “laws” within the
meaning of Art.13 of the Constitution and if they are inconsistent with or contrary to any of the
provisions thereof, they can be declared ultra vires by the Supreme Court and by the High
Courts. Judicial review of administrative action aims to protect citizens from abuse of power by
any branch of State.

“When the legislature confers discretion on a court of law or on an administrative authority, it

also imposes responsibility that such discretion is exercised honestly, properly and
reasonably” This view of DE Smith, clearly point out that discretion of administrative action
should be used with care and caution. So, the abusive discretionary power of Administrative
action must be review by judiciary. If judiciary founds any ground of illegality of any
administrative action, it is the duty of the judiciary to maintain check and balance.

In recent times, many administrative decisions taken by the Government are being struck down
either on avoidable grounds of illegality or procedural irregularity or some other grounds which
could have been validly averted. Judicial review is the basic feature of the Indian Constitution
and therefore, cannot be abrogated even by an amendment of the Constitution. Article 32 is
included in Part III as a fundamental right for enforcement of any of the fundamental rights
conferred under Part III. Generally, judicial review of any administrative action can be exercised
on five grounds; jurisdictional error, irrationality, procedural impropriety, proportionality,
legitimate expectation.

16 | P a g e
 GROUNDS FOR JUDICIAL REVIEW

1) Jurisdictional Error-

The term “jurisdiction” means “power to decide”. The jurisdiction of the administrative authority
depends upon facts the existence of which is necessary to the initiation of proceedings & without
which the act of the Court is a nullity. These are called “jurisdictional facts”. This ground of
judicial review is based on the principle that administrative authorities must correctly understand
the law and it limits before any action is taken. Court may quash an administrative action on the
ground of ultra vires in following situations.

a) Lack of Jurisdiction- It would be a case of “lack of jurisdiction” where the tribunal or

authority has no jurisdiction at all to pass an order.27 Court may review an administrative
action on the ground that the authority exercised jurisdiction which did not belong to it.28
b) Excess of Jurisdiction- This covers a situation wherein though authority initially had the
jurisdiction but exceeded it and hence its actions become illegal. 29 This may happen
under following situations:
 Continue to exercise jurisdiction despite occurrence of an event ousting
jurisdiction.
 Entertaining matters outside its jurisdiction.
c) Abuse of Jurisdiction- All administrative powers must be exercised fairly, in good faith
for the purpose it is given, therefore, if powers are abused it will be a ground of judicial
review. In the following situations abuse of power may arise:
 Improper Purpose- Administrative power cannot be used for the purpose it was
not given.30
 Error apparent on the face of the record- An error is said to be apparent on the
face of the record if it can be ascertained merely by examining the record &
without having to have recourse to other evidence.31

27
R. vs. Minister of Transport, (1934) 1 K.B. 277.
28
Rafiq Khan vs. State of U.P., A.I.R. 1954 All. 3.
29
R vs. Richmond upon Thames Council ex parte McCarthy & Stone Ltd 868, [1992] 2 A.C. 48.
30
Attorney General vs. Fulham Corporation, [1921] 1 CH. 440.
31
Syed Yakoob vs. K.S. Radhakrishnan, A.I.R. 1964 S.C. 477.

17 | P a g e
  Non- consideration of relevant material- In exercising discretion, a decision-
maker must have regard to relevant matters & disregard irrelevant matters.32
 In bad faith- Where a decision maker has acted dishonestly by claiming to have
acted for a particular motive when in reality the decision was taken with another
motive in mind, he may be said to have acted in bad faith.33
2) Irrationality-

A general principle which has remained unchanged is that discretionary power conferred on
an administrative authority is required to be exercised reasonably. A person in whom is
vested a discretion must exercise his discretion upon reasonable grounds. A decision of the
administrative authority shall be considered as irrational if it is so outrageous in its defiance
to logic or accepted norms of moral standard that no sensible person, on the given facts and
circumstances, could arrive at such a decision. Irrationality as a ground of judicial review
was developed by the Court in Associated Provincial Picture House v. Wednesbury34,
later came to be known as “Wednesbury test” to determine ‘irrationality’ of an
administrative action. The local authority had the power to grant licenses for the opening of
cinemas subject to such conditions as the authority ‘thought fit’ to impose. The authority,
when granting a Sunday licence, imposed a condition that no children under the age of 15
years should be admitted. The applicants argued that the imposition of the condition was
unreasonable and ultra vires the corporation’s powers. Stating that the Court should not
substitute its view for that of the corporation the court observed: interference would not be
permissible unless it is found that the decision was illegal or suffered from procedural
improprieties or was one which no sensible decision maker could, on the material before him
and within the framework of law, have arrived at it. The Court would consider whether
relevant matters were not taken into account or whether the action was not bona fide or
whether the decision was absurd.

32
R vs. Somerset County Council, ex p Fewings, [1995] 3 All. E.R. 20.
33
R vs. Derbyshire County Council, ex p Times Supplements, (1991) C.O.D. 129.
34
Associated Provincial Picture House v. Wednesbury, (1948) 1 K.B. 223.

18 | P a g e
 In Roberts vs. Hopwood35, the council, in adopting a policy of paying higher wages than the
national average for its workers, was unreasonable, for the discretion of the council was
limited by law. It was not free to pursue a socialist policy at the expense of its rate payers.

A decision by an authority may also be unreasonable if conditions are attached to the

decisions which are difficult or impossible to perform. Where an authority makes a decision
which is in part good, but in part bad the court may either invalidate the entire decision or
sever the bad part of the decision from the good.36

3) Procedural Impropriety-

Failure to comply with procedures laid down by statute may invalidate a decision.
Procedural Impropriety is to encompass two areas: failure to observe rules laid down in
statute; and a failure to observe the basic common law rule of natural justice.

In Bradbury v Enfield London Borough Council37, the Education Act 1944 provided that, if a
local education authority intends to establish new schools or cease to maintain existing
schools, notice must be given to the minister, following which, public notice must be given in
order to allow interested parties to comment. The Council breached the requirement of
public notice and the plaintiffs sought an injunction. The Council claimed that educational
chaos would occur if they were required to comply with the procedural requirements. That
plea met with little sympathy in court.

It is a fundamental requirement of justice that, when a person’s interests are affected by a

judicial or administrative decision, he or she has the opportunity both to know and to
understand any allegations made, and to make representations to the decision maker to meet
the allegations. The principles of natural justice which are imposed by the courts comprise
two elements:

a) Audi alteram partem (hear both sides)

35
Roberts v. Hopwood, (1925) A.C. 578.
36
Agricultural Horticultural and Forestry Industry Training Board v. Aylesbury Mushrooms Ltd, [1972] 1 All. E.R.
280.
37
Bradbury v. Enfield London Borough Council, [1967] 3 All. E.R. 434.

19 | P a g e
 b) Nemo judex in causasua (there should be an absence of bias with no person being a judge
in their own cause).

The essence of justice lies in a fair hearing. The rule against bias is strict: it is not necessary to
show that actual bias existed; the merest appearance or possibility of bias will suffice. The
suspicion of bias must, however, be a reasonable one.

In Pinochet case38, extradition proceedings against the former Chilean Head of State were
challenged on the basis that one of the Law Lords, Lord Hoffmann, had links with Amnesty
International, the charitable pressure group which works on behalf of political prisoners around
the world, which had been allowed to present evidence to the court. It was accepted that there
was no actual bias on the part of Lord Hoffmann, but there were concerns that the public
perception might be that a senior judge was biased. As a result, the proceedings were abandoned
and reheard by a new bench of seven judges.

4) Proportionality-

Proportionality means that the administrative action should not be more drastic than it ought to
be for obtaining desired result. Proportionality is sometimes explained by the expression ‘taking
a sledgehammer to crack a nut’. Thus 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. Thus if an action taken by
the authority is grossly disproportionate, the said decision is not immune from judicial scrutiny.
The sentence has to suit the offence & the offender. It should not be vindictive or unduly harsh.39

The Supreme Court has always maintained that it would employ the doctrine of Proportionality
to test the validity of an administrative action only when the Fundamental Rights of the
aggrieved person are disproportionately violated by the administrative authority.

5) Legitimate Expectation-

38
The Pinochet Case, (1999) 48 I.C.L.Q.
39
Hind Construction Co. vs. Workmen, A.I.R. 1965 S.C. 917.

20 | P a g e
A legitimate expectation will arise in the mind of the complainant wherever he or she has been
led to understand — by the words or actions of the decision maker – that certain procedures will
be followed in reaching a decision. A Legitimate Expectation amounts to an expectation of
receiving some benefit or privilege to which the individual has no right. Legitimate Expectation
means expectation having some reasonable basis. The doctrine of Legitimate Expectation has
evolved 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 they had suffered civil consequences because their legitimate
expectation has been violated. Two considerations apply to legitimate expectations. The first is
where an individual or group has been led to believe that a certain procedure will apply. The
second is where an individual or group relies upon a policy or guidelines which have previously
governed an area of executive action.

In R.P. Singh vs. State of Bihar40, the Supreme Court explained that the expression “established
practice” referred to a regular, consistent, predictable & certain conduct, process or activity of
the decision-making authority. The expectation should be legitimate i.e. logical, reasonable &
valid. The doctrine of legitimate expectation would apply in cases where the decision taken by
the authority is found to be arbitrary, unreasonable & not taken in public interest. Change in
policy however, can defeat the legitimate expectation. In such a case, even by the way of change
of old policy, the Courts would not intervene with the decision.

In Jatinder Kumar vs. State of Haryana41, the Court held that the Government had a right to
review the decisions taken by the previous establishments & hence it could suspend the process
of recruitment started by previous Government, because of allegations of irregularities & this
could not be challenged on the ground of violation of legitimate expectation.

40 R.P. Singh vs. State of Bihar, (2006) 8 S.C.C. 381.

41
Jatinder Kumar vs. State of Haryana, (2008) 2 S.C.C. 161.

21 | P a g e
 CURRENT POSITION OF JUDICIAL REVIEW IN INDIA

The Supreme Court of India since the era of AK Gopalan’s case42 to the historic judgment in I.R.
Coelho’s case43 magnified the concept of Doctrine of Judicial Review. In the present scenario,
Supreme Court plays a very crucial role to interpret the constitutional provisions and now the
concept of Judicial Review became a fundamental feature or a basic structure of the
Constitutional Jurisprudence. In its recent judgement in Madras Bar Association v. Union of
India44, the Supreme Court scrutinised the provisions of Companies Act, 1956 and declared
some provisions ultra vires. In this case, the petitioner challenges the constitution of NCLT and
NCALT and also challenges the formation of the Committee, the appointment of the judicial
members as well as the technical members. S(s).409(3)(a), 409(3)(c) and S(s). 411(3), 412(2) are
the provision which incorporates Constitution of Board of company law administration. The
Supreme court upheld the validity of NCLT and NCLAT, but declared the above mentioned
provisions ultra vires and held that these provisions are unconstitutional in nature on the ground
that any institution performing a judicial function should be constituted of members having
judicial experience and expertise and thus judicial member were to exceed the technical
members so as to maintain the essential feature of that constitution. In the case of Supreme Court
Advocates on Record Association v. Union of India45the subject-matter of the challenge before
the Court was an Amendment which was made to the constitution as 99th Constitutional
Amendment. The Supreme Court after carefully examining the validity of the said amendment
struck down the amendment and the National Judicial Appointments Commission (NJAC) act by
holding it ultra vires to the basic structure of the Constitution.

42
A.K. Gopalan v. State of Madras, (1950) S.C.R. 88 (100).
43
I.R. Coelho v. State of Tamil Nadu, A.I.R. 2007 S.C. 861.
44
Madras Bar Association v. Union of India, Writ Petition (C) No. 1072 Of 2013.
45
Supreme Court Advocates on Record Association v. Union of India, Writ Petition (Civil) No. 13 of 2015.

22 | P a g e
 CONCLUSION

Doctrine of judicial review is now become very dynamic concept in present scenario. In various
countries, Judiciary is performing as the guardian of Constitution by using the power of judicial
review. In India, courts are very strictly scrutinized the validity of law or any administrative
actions if they inconsistent and illegal in nature. The scope of judicial review in Administrative
action is wider in the present scenario. Every organ must be within their limitation, is the spirit of
judicial review. Judicial review is a powerful weapon to restrain unconstitutional exercise of
power by the legislature and executive. The expanding horizon of judicial review has taken in its
fold the concept of social and economic justice. While exercise of powers by the legislature and
executive is subject to judicial restraint, the only check on our own exercise of power is the self-
imposed discipline of judicial restraint. Mere possibility of another view cannot be a ground for
interference. Therefore, courts will not interfere unless the decision suffers from illegality,
irrationality, procedural impropriety and proportionality deficiency. Mere assertion of these
ground is not sufficient, each ground must be proved by evidence on record. Asserting the power
of judicial review, the court emphasized that the doctrine of immunity from judicial review is
restricted to cases or class of cases which relate to deployment of troops and entering into
international treaties etc. in policy matters and where subjective satisfaction of the authority is
involved, court will not interfere unless the decision is totally perverse and violates any
provisions of the Constitution. If proper care is taken at the level of making administrative
decisions, there will be little scope for grievance and invoking courts’ jurisdiction. This will not
only reduce the burden on courts but will also create a sense of security and satisfaction in
people which is the essence of good governance and foundation of a welfare State. The concept
of judicial review is also criticized many a times. By the strict behavior of the Courts, sometimes
it is criticized in the political corridors. It should not be happen in any manner, because
Supremacy of law prevails in the interpretations of the Courts, we the people cannot questioned
to the actions of judiciary because Supreme Court performing as the guardian of the Law of the
land.

23 | P a g e