DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW

ADMINISTRATIVE LAW
TOPIC : ‘An Analytical Study on the Judicial Review of Administrative Action’

SUBMITTED TO: SUBMITTED BY:

Dr. Manoj Kumar Prachi Jain

Assistant Professor Section B, Enrol. No.: 200101098

Dr. Ram Manohar Lohiya 5th Semester

National Law University B.A. L.L.B. (Hons.)

 ACKNOWLEDGEMENT

Every work accomplished is a pleasure and a sense of satisfaction. The success and final outcome
of this project required a lot of guidance and assistance from many people and I am extremely
fortunate to have got this all along the completion of my project work. Whatever I have done is
only due to such guidance and assistance and I would not forget to thank them.

I respect and thank our mentor Dr. Manoj Kumar for giving me an opportunity to dwell upon
this case and providing me all support and guidance which made me complete the project on time.

Lastly, I thank almighty, my family and friends for their constant encouragement without which
this project would not have been possible.

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 TABLE OF CONTENTS

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

INTRODUCTION ............................................................................................................................... 4

STATUTORY CONTROL ................................................................................................................... 6

NON-STATUTORY CONTROLS ........................................................................................................ 8

WEDNESBURY PRINCIPLE ......................................................................................................... 8

RULES OF NATURAL JUSTICE ................................................................................................. 10

REMEDIES ..................................................................................................................................... 11

CONCLUSION ................................................................................................................................ 13

BIBLIOGRAPHY ............................................................................................................................. 14

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 INTRODUCTION

When there is a talk about administrative action, there always involve a fear of arbitrariness on the
part of administration. But as we know in a democracy for the better implementation of the policies
for the general public, we have to rely upon administration, and we have to give them certain rule
making power as well. To make sure that they should not abuse this power we have to make certain
checks and balances for that purpose only. Here comes the relevancy of ‘Judicial review of
Administrative Action’. The concept of judicial review of administrative action has been
borrowed from Britain. According to Wade, administrative law is the law relating to the control
of powers of the executive authorities. It is on this foundation that the Indian courts have built the
superstructure of control mechanism. To consider why such a law became necessary, we have to
consider its historical background.

In the 19th century of England, the state was more concerned with defence of the country from
foreign invasion and maintenance of law and order within the country. But as soon as the industrial
revolution began the complexions started arising in the society. And there was a need of regulation
in regard to the things like town planning, public health, education, lighting, sewerage, drainage,
sanitation, electricity, etc. In order to control all these things the State needed a large number of
legislation and for the execution of the legislation the executive authorities; there arises a need to
create a body of legal principle to control and to check misuse of these new powers conferred on
the State authorities in this new situation in the public interest. 1 Thus emerged the concept of
Administrative Law. Maitland said in his Constitutional History:

“Year by year the subordinate Government of England is becoming more and more important. We
are becoming a much-governed nation, governed by all manner of councils and boards and
officers, central and local, high and low, exercising the powers which have been committed to
them by modern statues.”

When we talk about control this control can be done by two ways; either by Parliament
(legislatures) or by Judiciary. Parliament could theoretically exercise this control, but in practice
it could not because of the paucity of time they have. Therefore, it naturally became the duty of

1
J. Markandey Katju, Administrative Law and Judicial Review of Administrative Action, (2005) 8 SCC J-25.

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Judges to ensure that executive authorities do not abuse their powers and use it for the betterment
of public interest. The whole of judicial review of administrative action has been developed by
judges on case to case basis. The result of which is, it surrounds with many technicality and
inconsistency.

This also alarm the situation of judiciary being arbitrary to the executives, to do away with this
possibility, the Supreme Court in Tata Cellular v Union of India 2, has laid down basic principles
relating to administrative law:

1. The modern trend points to judicial restraint in administrative action.

2. The Court does not sit as a court of appeal over administrative decisions, but merely
reviews the manner in which the decisions were made.

3. The Court does not have the expertise to correct administrative decisions. If a review of
the administrative decisions is permitted it will be substituting its own decision without the
necessary expertise, which itself may be fallible.

4. A fairplay in the joints is a necessary concomitant for the administrative functioning.

5. However, the administrative decision can be tested by application of the Wednesbury

principle of reasonableness, and must be free from arbitrariness, bias or mala fides.

As far as controls on executive is concerned there are two kinds of controls:

1) Statutory, and

2) Non-Statutory

2
(1994) 6 SCC 651.

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 STATUTORY CONTROL

The controls which are given in the statutory provisions or rules or regulations made under the
statutes. Any executive action in violation of the same will be declared illegal by the courts, by the
doctrine of ultra vires. Like in the case of London County Council v Attorney General3, London
County Council had statutory powers to purchase and operate tramways, but it was held by the
House of Lords that it had no power to run omnibuses, which was not incidental to the running of
tramways. Similarly, in case of White and Collins v Minister of Health 4, it was held that a local
authority with the power to acquire land other than “park, garden or pleasure house” acts in excess
of jurisdiction in acquiring land which is part of a park.

In case a statute is such which delegates its power to executive, meaning thereby that the legislature
have given some delegatory power to executive to make certain rules and regulations with regards
to the policy. The idea behind this is that executives are more familiar with the work, environment
and circumstances of the concerned area of legislation so if they have some power regarding
making rules for the implementation of the policy, the policy will be implemented in the best way
possible and it will serve the best interest of society. However, the important thing that should
always kept in mind is that delegates non potest delegare (no delegated power can be delegated
further), if the statute delegates a power to a particular authority, that authority can not sub-delegate
that power to another authority or person unless the statute permits such sub-delegation.

Following this principle in the case of Bhavnagar University v Palitana Sugar Mill (P) Ltd.5, the
Supreme Court said that when the statute prescribes the manner of doing an act, the authority must
do it only in that prescribed manner. If any other manner be followed that would be illegal and
ultra vires to the statute. Whereas it not very easy to declare something ultra vires or illegal.

The judiciary also faces difficulties because in many cases the legislations have words like, ‘as it
deems fit’, reasonable grounds to believe’, etc. here comes the subjectivity part because words like
this gives the judiciary discretion and there are no hard and fast rules provided in the statute that

3
1902 AC 165 (HL).
4
(1939) 2 KB 838.
5
(2003) 2 SCC 111.

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what it is actually mean when it states ‘as it deems fit’ or reasonable ground to believe’. Because
of this discretion available it has been said that power is coupled with a duty and absolute power
corrupts absolutely, a limited judicial review against administrative action is always available to
the courts.6

6
J. Markandey Katju, Administrative Law and Judicial Review of Administrative Action, (2005) 8 SCC J-25.

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 NON-STATUTORY CONTROLS

There are two non-statutory controls available which are:

1. The Wednesbury Principle

2. Rules of Natural Justice

WEDNESBURY PRINCIPLE

Judicial review is concerned with controlling the exercise of discretion and keeping the authorities
within the limits of their powers. This power does not, quite obviously, extend to the court
substituting its own subjective ideas of what is ‘reasonable’. One of the grounds of review is what
is now famously known as “Wednesbury Unreasonableness”.7

Until 1947, the law in England was that the Courts could interfere only with judicial or quasi-
judicial decisions and not with administrative decisions. This has been changed after the historic
case of Associated Provincial Picture Houses Ltd. v Wednesbury Corpn.8, the brief facts of the
case are – the plaintiffs, who are the proprietors of a cinema theatre in Wednesbury, sought to
obtain from the court a declaration that a certain condition imposed by the defendants, the
corporation of Wednesbury, on the grant of a licence for Sunday performances in that cinema was
ultra vires. The powers and duties of the Local Authority are to be found in the Sunday
Entertainments Act, 1932. That act legalized the opening of cinemas of Sundays, subject to certain
specified conditions and subject to such conditions as the licensing authority think fit to impose.
The licensing authorities are the licensing authority set up under the Cinematograph Act, 1909,
and in this case are the council of the borough of Wednesbury. Before the Act of 1932, the opening
of cinematograph theatres on Sundays was, in fact, illegal. Local authorities had purported in some
cases to allow Sunday opening under the licenses which they graned, but that permission was
strictly irregular.

Lord Greene said after hearing the case:

A person entrusted with discretion must, so to speak, direct himself properly in law. He must call
his attention to matters which he is bound to consider. He must exclude from his consideration
matters which are irrelevant to what he has to consider. If he does not obey those rules he may

7
V. Sudhish Pai, Is Wednesbury on the Terminal Decline? (2008) 2 SCC J-15.
8
(1947) 2 All ER 680.

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truly be said to be action unreasonably. Similarly, there may be something so absurd that no
sensible person could ever dream that it lay within the powers of the authority.

The above observation incorporates what is frequently called as the Wednesbury Principle9.

After this decision the court have a parameter set and very often the Court declared some actions
of executive as illegal only on the basis of Wednesbury Unreasonableness. In the case of Councile
of Civil Service Unions v Minister for the Civil Service 10, Lord Diplock said that the principle of
judicial review which were by no means held to be exhaustive. He stated that the grounds on which
administrative action is subject to control by judicial review may be conveniently classified under
three main substantive areas of ultra vires, irrationality can be equated both aspects of procedural
wrong-doing-failure to follow the prescribed statutory procedure or the rules of natural justice. In
Rohtas Industries v S. D. Agarwal 11, case the facts were that an investigating into the affairs of a
company was ordered under Section 237 of the Companies Act, 1956. The Company Law Board
took into account the fact that there were complaints of misconduct against one of the leading
directors of the company in relation to other company’s subject to his control for which he was
being prosecuted. It has been held by the Court in this case that this factor was irrelevant in
establishing fraud.

Though the courts have decided many times on the touchstone of the Wednesbury but there is a
misconception also involved with this rule and the misconception is that everything which is
regarded by the court to be unreasonable on the basis of Wednesbury, it must be struck down.
However, this is not true. We can understand this by breaking Wednesbury principle in three parts;
a decision will be said to be unreasonable in the Wednesbury12 if:

i) It is based on wholly irrelevant material or wholly irrelevant consideration,

ii) It has ignored a very relevant material which it should have taken into consideration,

It is so absurd that no sensible person could ever have reached to it.

9
J. Markandey Katju, Administrative Law and Judicial Review of Administrative Action, (2005) 8 SCC J-25.
10
(1984) 3 All ER 935.
11
(1969) 1 SCC 325.

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RULES OF NATURAL JUSTICE

There are two main rules of natural justice:

1. Audi alteram partem means right to heard (the person to be affected by an order of authority
should be heard before the order is passed), and

2. The rule against bias.

However, by the passage of time there were more rules of natural justice as the law progressed.
But even then, it has been always constant that the natural justice rules are always flexible. If
fairness is shown there can be no complaint of breach of natural justice.

As far as the first rule is concerned i.e. audi alteram partem, in England, in the matter of judicial
and quasi-judicial proceedings opportunity of to be heard was give but not the same with
administrative proceeding. This was the situation till 1964. This was changed when the decision
of the Court came in the case of Ridge v Baldwin12, where it has been held by the House of Lords
that opportunity of hearing had to be given even in administrative proceedings if the administrative
order would affect the rights and liabilities of the citizen. When we talk about Indian scenario this
view of House of Lord had been taken into consideration in the case of State of Maharastra v
Jalgaon Municipal Council13 and held that administrative orders which involve civil consequences
have to be passed consistently with the rules of natural justice. Therefore, Natural Justice is an
implied requirement of administrative decisions which affects rights and liabilities.

Apart from this when it comes to the rule against bias, it is basically that ‘no man should be a judge
in his own cause’, it disqualifies a person from giving a decision where the interest of the person
himself involve therein. The basic idea behind this is that the person will be biased in such cases
and it will not do justice to the other party.

12
(1963) 2 All ER 66 (HL).
13
(2003) 9 SCC 731.

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 REMEDIES

So, till now after going through all this we get to know about the discretion that the administrative
body has with them. Now the question is how to regulate or control it. The answer to this question
is the remedies available in our Constitution. Our Constitution provides the remedies through writs
before the higher judiciary. Under Article 32 we can approach the Supreme Court and under Article
226 we can approach High Court.

Both the court can issue writs of Certiorari, Mandamus, Habeas Corpus, Prohibition and Quo
Warranto and can also issue orders and directions in the nature of writs. The language which has
been used in Article 32 and 226 is very wide in nature and it has been held that the Indian courts
have wider power than British Courts in issuing writs Article 226 confers powers on the High
Court not only to issue prerogative writs, but also issue order or direction to enforce fundamental
and other legal rights.14

Therefore, the High Courts in India are not confined to the procedural technicalities of the English
rules.15 A writ can be issued by the High Courts and the Supreme Court not only to the
Government, but also to what are called instrumentalities of the State. A writ of certiorari will be
issued when the court finds that there is an error of law apparent on the face of record. A mandamus
will be issued to a public authority to compel it to do its public duty.

In the case of S. Selvarani v Commr., Karaikudi Municipality16, where in the grants of public
contracts the courts usually (though not invariably) insist that such grants be made by public
auction/public tender after advertising the same in well known newspapers having wide circulation
so that there is transparency and compliance with Article 14 of the Constitution.

Such grants by private negotiation are ordinarily disapproved. A writ also can be issued to enforce
the statue or statutory rule or order. However, a question may arise whether it can be issued to
enforce non-statutory government orders or executive instructions.

14
Air India Statutory Corpn. v United Labour Union (1997) 9 SCC 377
15
T.C. Basappa v Nagappa, (1955) 1 SCR 250.
16
(2005) 1 CTC 81.

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It is a rule that the Mandamus will not issue to enforce mere administrative instructions which
have no statutory force.17 But there are few exceptions to this rule as well;

1. Where the principle of promissory estoppels applies (Union of India v Indo Afghan
Agencies Ltd18).

2. Where the principle of legitimate expectation applies (J.P. Bansal v State of Rajasthan 19).

3. In service matters, where there are no statutory rules, administrative instructions can fill in
the gap, and are enforceable. (Sant Ram Sharma v State of Rajasthan20).

4. In many matters, for example awards of public contracts, an executive authority must be
rigorously held to the standards by which it professes its actions to be judged, even if such
actions are non-statutory. (Ramana Dayaram Shetty v International Airport Authority of
India21).

17
G.J. Fernandez v State of Mysore, (1967) 3 SCR 636.
18
AIR 1968 SC 718.
19
(2003) 5 SCC 134.
20
AIR 1967 SC 1910
21
(1979) 3 SCC 489.

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 CONCLUSION

By the passage of time it can be said very easily that there has been an immense increase in the
rule making power as well as the activities of governmental administrative function. With more
power comes more responsibility so as the chances of abuse of the power in hand. To do away
with that possibility we need to have sufficient control over the administrative action. However,
this control can’t be such in nature that it totally handicapped the administrative function and
suffocate the development of government.

It is the duty of the court to protect the rights of individuals against arbitrariness of executives and
make sure the delivery of fair justice to the society. Administrative actions have to be judicially
reviewable. There can not be any doubt about it. As far as flaws and errors are concerned with
regards to judgments of the Court they will occur despite the best intention and endeavor. So long
as the courts move in step with administrative realities and exercise caution in extending the wide
arm of justice, there is nothing to prevent them from developing the principle of administrative
law imaginatively.

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 BIBLIOGRAPHY

• J. Markandey Katju, Administrative Law and Judicial Review of Administrative Action,

(2005) 8 SCC J-25.

• Sri Prabhu Natrajan, Judicial Review of Administrative Action – an Analysis, (1993) 2 LW

(JS) 42.

• Justice Syed Shah Mohammad Quari, Judicial Review of Administrative Action, (2001) 6
SCC J-1.

• Justice C.K. Thakker, From Duty to Act Judicially to duty to Act Fairly, (2003) 4 SCC J-
1.

• V. Sudhish Pai, In Wednesbury on the Terminal Decline? (2008) 2 SCC J-15.

• Justice Anand Byrareddy, Proportionality vis-à-vis Irrationality in Administrative Law,

(2008) 7 SCC J-29.

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