Thursday, April 26, 2012



 By K P C Rao.,
Practicing Company Secretary

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. This article focuses on the evolution of the concept of ‘Judicial Review’ and also on the grounds of judicial review of the administrative action in the Indian context. 

Judicial Review   

Judicial review is central in dealing with the malignancy in the exercise of administrative power. Outsourcing of legislative and adjudicatory powers to the administrative authorities as an imperative of modern system of governance has brought the law of judicial review of administrative action in prime focus. Law dealing with judicial review of administrative action is largely judge-induced and judge-led; consequently thickets of technicalities and inconsistencies surround it. Anyone who surveys the spectrum of judicial review finds that the fundamentals on which courts base their decision include Rule of Law, administrative efficiency, fairness and accountability. These fundamentals are necessary for making administrative action “people-centric”. Courts have generally exhibited a sense of self-restraint where judicially manageable standers do not exist for judicial intervention[1]. However, “self-restraint” is not the absence or lack or power of judicial review. Courts have not hesitated, in exceptional situations, even to review policy matters and subjective satisfaction of the executive.  

Judicial review is the basic feature of the Indian Constitution and therefore, cannot be abrogated even by an amendment of the Constitution. It is incorporated in Articles 226 and 227 of the Constitution insofar as the High Courts are concerned. In regard to the Supreme Court Articles 32 and 136 of the Constitution embody the principle of judicial review. Article 32 is included in Part III as a fundamental right for enforcement of any of the fundamental rights conferred under Part III.  

Grounds of Judicial Review of Administrative action
Generally, judicial review of any administrative action can be exercised on four grounds viz.,

a)     Illegality
b)     Irrationality
c)     Procedural impropriety and
d)     Proportionality.  

These grounds of judicial review were developed by Lord Diplock in Council of civil Service Union v. Minster of Civil Service[2]. Though these grounds of judicial review are not exhaustive and cannot be put in watertight compartments yet these provide sufficient base for the courts to exercise their review jurisdiction over administrative action in the interest of efficiency, fairness and accountability.

a)     Illegality 

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. Therefore, if the authority lacks jurisdiction or fails to exercise jurisdiction or abuses jurisdiction or exceeds jurisdiction, it shall be deemed that the authority has acted “illegally”. Court may quash an administrative action on the ground of illegality in following situations.  

1)     Lack of Jurisdiction  

Court may review an administrative action on the ground that the authority exercised jurisdiction which did not belong to it. This review power may be exercised inter alia on following grounds.  

i)       That the law under which administrative authority is constituted and exercising jurisdiction is itself unconstitutional.

ii)    That the authority is not properly constituted as required by law.

iii)  That the authority has wrongly decided a jurisdictional fact and thereby assumed jurisdiction which did not belong to it.

iv)   That some of the essential preliminary proceedings or conditions have been disregarded which were conditions precedent for the exercise of jurisdiction, such as:

a)     Non-formation of necessary opinion before assuming jurisdiction.

b)     Non-issue of statutory notice.

c)     Non-institution of proceedings within specified time.

v)     That the authority is incompetent to assume jurisdiction in respect of subject-matter, area and parties. 

2)      Excess of jurisdiction 

This covers a situation wherein though authority initially had the jurisdiction but exceeded it and hence its actions become illegal. This may happen under following situations.   

i)       Continue to exercise jurisdiction despite occurrence of an event ousting jurisdiction.
ii)    Entertaining matters outside its jurisdiction. 

3)     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.  

i)       Malfeasance in office. It is a tort doctrine imported into administrative law. The Supreme Court inLucknow Development Authority v. M.K. Gupta[3] held that where the Minister allotted petrol outlets from his discretionary quota in arbitrary, mala fide and unjust manner, it is misfeasance in office subject to judicial review of the Court.

ii)    Error apparent on the face of the record which may be a result of misinterpretation or misapplication of law.

iii)  Consideration of extraneous material

iv)   Non-consideration of relevant material.

v)     Colourable exercise of power or misdirection in law.

Administrative power cannot be used for the purpose it was not given. Therefore, achieving an unauthorized purpose will be a colourable exercise of power subject to judicial review.

vi)   Mala fide exercise of power or bad faith or malice.
No public authority can act in bad faith or from corrupt motives. If any administrative authority has acted in a mala fide manner it will be subject to the review jurisdiction of the Court. In case of mixed considerations courts try to find out the dominant purpose which impelled administrative action. Power is exercised maliciously when action is motivated by personal animosity towards one who is affected by it. It is considered as fraud on power. Mala fide as a ground of judicial review is not available against legislative action. Even if executive may have ulterior motives in moving legislation or an administrative authority exercising rule-making powers.  

‘Mala fide’ is an open textured expression. In R.S. Gag V. Sate of U.P[4]., the Supreme Court explaining the reach of this expression held that where authority had made up its mind from the very beginning to promote the respondent as approval of the Chief Minister was obtained earlier than the creation of post and order of promotion was issued in haste, it goes to prove that the action of the authority smacks of mala fide. 

4)     Failure to exercise Jurisdiction  

If any administrative authority has been given power by law, no matter discretionary, authority must exercise it in one way or the other. Public power is not a personal power, it is a public trust therefore, must be exercised in public interest. Failure or denial to exercise jurisdiction will be an illegality. Failure to exercise power may arise:   

i)       Where authority has sub-delegated its powers without the authority of law.

ii)    Where authority is exercising its power under dictation or transcription.

iii)  Where authority has fettered its power by self-imposed restrictions unwarranted by law.

iv)   Where authority declines jurisdiction which belongs to it under law.

v)     Where there is non-application of mind by the authority and is acting in a perfunctory or mechanical manner ignoring conditions precedent.  

b)     Irrationality (Wednesbury test) 

Irrationality as a ground of judicial review was developed by the Court in Associated Provincial Picture House v. Wednesbury[5], later  came to be known as “Wednesbury test” to determine ‘irrationality’ of an administrative action. A decision of the administrative authority shall be considered as irrational:  

i)          If it is without the authority of law.

ii)       If it is based on no evidence.

iii)     If it is based on irrelevant and extraneous consideration

iv)      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. In other words it is so absurd that no sensible person could ever dream that it lay within the power of the administrative authority. It is the use of the doctrine in substantive sense. Therefore, if the decision of the authority is so capricious, perverse, arbitrary, unreasonable and manifestly unjust that no sensible person can come to that conclusion, court would quash it. However, standard of rationality of administrative action is not to be judged by the standard of ‘any person’ (man in a clapham Omnibus). It is a standard indicated by true construction of law, proper or improper use of power and perversity of the decision which no sensible man can arrive at. In applying this test court would not apply ‘strict scrutiny’ and would not judge adequacy or sufficiency of the material unless fundamental rights are violated, and would not substitute its judgment with the judgment of the administrator unless the decision is perverse.

v)        It is so unreasonable that it may be described as done in bad faith. 

Irrationality in umbrella sense may include: (i) Taking into consideration irrelevant material; (ii) ignoring relevant considerations; (iii) using power for improper purpose (iv) exercising power in malafide manner. However, when used in ‘substantive sense’ it may mean that administrative action is so irrational that no public authority could take it.  

Principle of irrationality shares space of rule of law, reasonableness and non-arbitrariness. If the action of the administrative authority violates any of these principles court can quash such action as violative of Articles 14, 19 or 21 of the Constitution. Reasonableness besides being a constitutional requirement may also arise from a statutory mandate. Thus, where a statute provides, ‘if authority has reason to believe’,   courts have held these words to limit administrative discretion to the extent that the exercise of power must be objective and not subjective. Where there is not express requirement of ‘reasonableness’ courts have implied this requirement in every administrative action because no administrative action should be irrational, arbitrary and subjective. Therefore, if law allows an administrative authority to take action ‘as it may deem fit’ Courts have interpreted these words to mean ‘as it may reasonably deem fit’. It is necessary to infuse every administrative action with ‘fairness’ necessary to build a Rule of Law society.  

c)     Procedural impropriety 

Procedure of a decision is an important as the decision itself because if ‘procedure’ is not fair, decision cannot be trustworthy. Therefore, Courts have insisted on a ‘fair procedure’ requirement in every administrative action. Requirement of a ‘fair procedure’ may arise: 

1)     As a constitutional mandate where fundamental rights of the people are violated.
2)     As a statutory mandate. If statute lays down any procedure which administrative authority must follow before taking action, it must be faithfully followed and any violation of the procedural norm would vitiate an administrative action.
3)     As an implied requirement where statute is silent about procedure. 

Where statute is silent, courts have insisted that administrative authorities must follow the principles of natural justice which provide fair minimum administrative procedure which every administrative authority must follow while taking a decision which has civil or evil consequences. These rules of natural justice which guarantee “fair play in action” include: 

1)     Rule against Bias-No one should be made judge in his own cause.
2)     Rule of fair hearing-No one should be condemned unheard.

d)     Proportionality 

Proportionality means that the administrative action should not be more drastic than it ought to be for obtaining desired result. This implies that cannon should not be sued to shoot a sparrow. 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.

This doctrine is being applied in following situations:  

i)       Where administrative action invades fundamental rights. In such a case courts make strict scrutiny of administrative action and go into the question of correctness of the choices made by the authority. The court would also balance adverse effects on the right and the object sought to be achieved.

ii)    Where question of quantum of punishment imposed by the administrative authority is involved. In such a case Court would not make strict scrutiny. Courts follow the principle that though quantum of punishment is within the jurisdiction of the administrative authority but arbitrariness must be avoided. This principle may be termed as ‘deference principle’ where court show respect to the choice made by the administrative authority except when choice is manifestly disproportionate.  

While reviewing an administrative action the ground of proportionality Courts generally examine:

i)       Whether the relative merits of different objectives or interests have been appropriately weighed and fairly balanced?
ii)    Whether the action under review was, in the circumstances, excessively restrictive or inflicted an unnecessary burden?  

Elaborating on the scope of judicial review of administrative action on grounds mentioned above, the Court observed that it is limited to consideration of legality of decision making process and not legality of the decision perse. 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[6] 


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[7]. 

Understanding the legal aspects of administrative decisions, keeping in view the constitutional objective of providing justice to the people of India is at the hands of the executive as well. 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.

[Published in Monthly Magazine of ICSI 'Corporate Secretary' in September, 2011]

[1]  Essar Oil Ltd v. Halar utkarsh Samiti, (2004) 2 SCC 392.
[2]  Council of civil Service Union v. Minster of Civil Service(1984) 3 AII ER935 (HL)
[3]  Lucknow Development Authority v. M.K. Gupta (1994) 1 SCC 243.
[4]  R.S. Garg V. Sate of U.P(2006)6 SCC 430
[5]  Associated Provincial Picture House v. Wednesbury(1948) K B 223
[6]  Assn. of Registration plates v. Union of India; (2005) 1 SCC 679.
[7] Asif Hameed v. State of J. & K;AIR 1989 SC 1899

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