MAHATMA JYOTI RAO PHOOLE

UNIVERSITY
In partial fulfillment of the requirements for the Degree of LLM ONE YEAR
CRIMINAL AND SECURITY/CORPORATE AND COMMERCIAL LAW

AN ANALYTICAL STUDY OF JUDICIAL REVIEW OF

ADMINISTRATIVE ACTIONS IN INDIA

2020-21

Under the Guidance of: Submitted By:

Dr. Vimla Chanagal Rajesh Mehla

LL.M. I SEM

Roll No.-_______

M.J.R.P. ACADEMY OF LAW

MAHATMA JYOTI RAO PHOOLE UNIVERSITY
JAIPUR

1
 CERTIFICATE
This is to certify that RAJESH MEHLA is a bonafide student of I
semester LLM ONE YEAR studying in this institution. He has
prepared and submitted a project titled “AN ANALYTICAL STUDY
OF JUDICIAL REVIEW OF ADMINISTRATIVE ACTIONS IN
INDIA” in partial fulfillment for the requirement of Master of Laws
of MJRP University, Jaipur for the academic year 2020-21.
He has worked under my guidance to the best of knowledge and
belief. This is his original work which has not been submitted to other
institute/ organization for any degree/ diploma program.

PLACE-
Date- Name of supervisor

2
Contents
INTRODUCTION .................................................................................................................. 7
ADMINISTRATIVE LAW AND ADMINISTTRATIVE ACTIONS ........................ 12
Nature and scope of administrative law ........................................................................ 12
Reasons for Growth of Administrative Law ................................................................. 12
ADMINISTRATIVE ACTIONS .................................................................................. 15
Rule of Law .................................................................................................................... 16
Classification of Administrative Actions ...................................................................... 17
JUDICIAL REVIEW.............................................................................................................. 29
Historical Background ................................................................................................... 31
Important Doctrines Formulated by Courts through Judicial Review .......................... 33
Features of Judicial Review .......................................................................................... 41
Current Position of Judicial Review in India: ............................................................... 42
JUDICIAL REVIEW OF ADMINISTRATIVE ACTION ......................................... 45
DOCTRINE OF LEGITIMATE EXPECTATION....................................................... 45
DOCTRINE OF PUBLIC ACCOUNTABILITY ......................................................... 48
DOCTRINE OF PROPORTIONALITY ...................................................................... 51
PROCEDURAL ASPECTS .......................................................................................... 52
DOCTRINE OF RES JUDICATA ............................................................................... 55
JURISDICTION ........................................................................................................... 58
VIOLATION OF PROCEDURAL NORMS ................................................................ 59
GROUNDS OF JUDICIAL REVIEW ...................................................................... 59
WRITS .......................................................................................................................... 62
1. HABEAS CORPUS .......................................................................................... 63
2. WRIT OF MANDAMUS ................................................................................. 64
3. WRIT OF CERTIORARI AND WRIT OF PROHIBITION ............................ 68
4. WRIT OF QUO WARRANTO......................................................................... 69
PRIVATE LAW REVIEW ........................................................................................... 70
INJUNCTION ........................................................................................................... 71
DECLARATION ...................................................................................................... 75
DAMAGES ............................................................................................................... 77
LIMITATION OF JUDICIAL REVIEW OF ADMINISTRATIVE ACTIONS ...... 79
JUSTIFICATION OF JUDICIAL REVIEW ................................................................ 80

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 Facilitation of Review: The Traffic Light Theories ...................................................... 82
Criticism of Review: Limits and Limitations ............................................................... 83
SUGGESTIONS .............................................................................................................. 87
CONCLUSION ............................................................................................................... 93
Bibliography ...................................................................................................................... 95

4
Cases
A.D.M. Jabalpur vs. Shivakant Shukla ....................................................................... 16
A.K Gopalan vs. State of Madras .............................................................................. 33
A.K. Bhaskar v. Advocate-General ............................................................................ 25
A.K. Kraipak v. Union of India ................................................................................... 21
Abdul Kasim v.Mohd. Dawood ................................................................................. 25
Amalgamated Coalfields v. Janapada Sabha, Chhindwara ..................................... 55
Annie Besant v. Government of Madras ................................................................... 31
Anuradha Bhasin vs Union of India ........................................................................ 42
Associated Provincial Picture Houses Ltd v. Wednesbury Corporation .................. 60
Ayubkhan v. Commr ................................................................................................. 19
Bai Shri Vaktuba v. Thakore .................................................................................. 76
Bhikaji Narain Dharkras vs. State of M.P ................................................................... 33
C.S.T. v. Super Cotton works ..................................................................................... 20
CB Boarding and Lodging House v State of Mysore .................................................... 22
Donoghue v. Stevenson............................................................................................ 30
Emperor vs. Burah ................................................................................................... 31
Express New Paper v UOI ......................................................................................... 18
Fedco Ltd. v. Bilgrami ............................................................................................... 19
Food Corporation of India vs. Kamadhenu Cattle Feed Industries ......................... 46
G. Nagesware Rao v. A.P. S.R.T.C.............................................................................. 21
Golak Nath v. state of Punjab ................................................................................... 34
Golak Nath vs. State of Punjab ............................................................................... 36
Gopalan v. State of Madras ...................................................................................... 25
Guruswamy vs. State of Mysore.............................................................................. 64
Hind Construction vs. Workmen ............................................................................ 50
Ichhudevi vs Union of India .................................................................................... 63
Indian Sugar & Refineries Ltd. v. Amaravathi Service Co-operative society................. 21
Indira Nehru Gandhi vs. Raj Narain........................................................................... 16
J. K. Choudhari vs. Datta Gupta ............................................................................ 67
Joseph Shine vs Union of India ............................................................................... 42
Kanu Sanyal vs District Magistrate ........................................................................ 63
Kerela Bar Hotels Association vs State of Kerela .................................................... 43
Kesavanda Bharati vs. State of Kerala ...................................................................... 16
Keshavananda Bharti vs.State of kerela ................................................................. 37
Lakhanpal v. Union of India ...................................................................................... 20
Lallubhai v. Union of India ..................................................................................... 56
Lotus Hotel vs. GSFC ............................................................................................. 64
Madras City wine Merchants’ Association vs. Tamil Nadu ..................................... 46
Malak Singh v. State of Punjab ................................................................................. 25
Maneka Gandhi vs. Union of India ............................................................................ 16
Marbury v. Madison................................................................................................. 30
Minerva Mills vs. Union of India ............................................................................ 38
Mitlesh Garg v. Union of India .................................................................................. 20

5
Nagarajan v. State of Mysore ................................................................................... 25
Narayanlal v. Mistry ................................................................................................ 25
National Building Construction Co. vs. S. Raghunathan......................................... 47
National Institute of Mental health and Neuro-Sciences v. K. Kalyana Raman............ 26
Naubat Rai vs. Union of India ................................................................................. 65
Navjyoti Co-operative Housing Society vs. Union of India ...................................... 45
Navtej Singh Joher vs Union of India ..................................................................... 42
Neelima Mishra v. Harinder Kaur.............................................................................. 26
Nilabati Behera vs. State of Orissa .......................................................................... 77
P.V. Narsimha Rao vs State (CBI/SPE), (1998) 4 SCC 626 ............................................ 49
Province of Bombay v. Khusaldas Advani .................................................................. 21
Province of Bombay v. Khushaldas Advani ................................................................ 25
Punjab Communications Ltd. vs. Union of India .................................................... 47
Radheshyam Kare v State of MP ............................................................................... 21
Ram Jawaya v State of Punjab .................................................................................. 22
Raman and Raman v. State of Madras...................................................................... 26
Ranjit Thakur vs. Union of India ............................................................................ 50
Rylands v. Fletcher ................................................................................................... 30
S.R.Bommai v. Union of India ................................................................................. 83
Sajjan Singh v. Rajasthan ....................................................................................... 36
Scheduled Caste and Weaker Section Welfare Association vs. State of Karnataka . 45
Secretary of State vs. Moment ................................................................................. 31
Shankari Prasad v. Union of India .......................................................................... 35
Sharma v. Krishna Sinha ........................................................................................ 54
Shayara Bano vs Union of India ............................................................................. 42
SP Manocha vs State of M.P ................................................................................... 65
SP Sampat kumar vs. Union of India ...................................................................... 39
State of Gujarat v. Krishna Cinema ........................................................................... 20
State of Kerala vs. K. G. Madhavan Pillai............................................................... 45
State of Madras v. C.P. Sarathy, ............................................................................... 25
State of Punjab v. Iqbal Singh ................................................................................... 20
State of West Bengal vs. Niranjan Singh ................................................................. 46
Surguja Transport Service v. S.T.A. Tribunal, Gwalior ......................................... 57
Tata Cellular v. Union of India ................................................................................ 81
Union of India v. Cynamide India Ltd ............................................................. 14, 16, 18
Union of India vs. Hindustan Development Corporation ........................................ 45
Union of India vs. Parma Nanda ............................................................................. 51
Venugopal vs. Commissioner, Vijayawada Municipality ........................................ 65
Workmen v. Meenakshi Mills .......................................................................................... 20

6
INTRODUCTION
The Constitution, is the supreme law. It is, in terms of Hans Kelsen,
the “grundnorm” of the State. All the other laws of the land derive
authority from the Constitution. As the jurist, H.L.A Hart puts it, “the
Constitution works as the touchstone for all the other laws. The validity
of other laws is to be checked according to the Constitution. If the law
in question is not in line with the principle enshrined in the Constitution,
then the law is to be declared unconstitutional”1.
The same parameter is also used for executive actions. The executives
are also prohibited to make any decision, which violates the basic
norms or the principles important for the identity of the Constitution.
The task to check the Constitutionality of the laws and of the action is
done by the judiciary. This is termed as the ‘judicial review’. Thus,
judicial review is defined as ‘the power of the court to determine
whether the acts of legislature and executive are consistent with the
Constitution or the Constitutional values. The concept of judicial
review lies in the supremacy of the Constitution of the land. Since, the
Judiciary is the guardian of the Constitution, thereby; it is under its
purview to check actions, which are inconsistent with the Constitution.
The tool of judicial review empowers the judiciary to struck down any
action, which is in conflict with the Constitution.
In the Constitution of India, the principle lies under Article 13. The
Article, provides that the law to be made should be in line with the
norms laid down in the Constitution of India. In addition, any existing
law inconsistent with it is void to the extent of inconsistency. Thus,
giving the power of judicial review to the judiciary. Articles 32 and
226 provide for the enforcement of the fundamental rights enshrined in
Part III of the Constitution of India. Guarantee of the fundamental
rights is insignificant and meaningless unless the Court has power to
protect the same from the arbitrary violation. At this point, the power
of the judicial Review became relevant.
Through the judicial review, the court has power to check the actions,
which threatens to take away the fundamental rights unreasonably.

1
“THE CONCEPT OF LAW” By H. L. A. Hart . Oxford : Oxford University Press , 1961

7
The Judiciary plays a very important role as a protector of the
constitutional values that the founding fathers have given us. They try
to undo the harm that is being done by the legislature by the legislature
and the executive and also, they try to provide every citizen what has
been promised by the Constitution under the Directive Principles of
State Policy. All this is possible thanks to the power of judicial review.
All this is not achieved in a day it took 50 long years for where we are
right now, if one thinks that it is has been a roller coaster ride without
any hindrances, they are wrong judiciary has been facing the brunt of
many politicians, technocrats, academicians, lawyers etc. Few of them
being genuine concerns, and among one of them is the aspect of
corruption and power of criminal contempt.
The rule of law is the bedrock of democracy, and the primary
responsibility for implementation of the rule of law lies with the
judiciary. This is now a basic feature of every constitution, which
cannot be altered even by the exercise of new powers from parliament.
It is the significance of judicial review, to ensure that democracy is
inclusive and that there is accountability of everyone who wields or
exercises public power. As Edmund Burke said: "all persons in
positions of power ought to be strongly and lawfully impressed with an
idea that "they act in trust," and must account for their conduct to one
great master, to those in whom the political sovereignty rests, the
people"2.
India opted for parliamentary form of democracy, where every section
is involved in policy-making, and decision making, so that every point
of view is reflected and there is a fair representation of every section of
the people in every such body. In this kind of inclusive democracy, the
judiciary has a very important role to play. That is the concept of
accountability in any republican democracy, and this basic theme has
to be remembered by everybody exercising public power, irrespective
of the extra expressed expositions in the constitution.
The principle of judicial review became an essential feature of written
Constitutions of many countries. H.L. Seervai in his

2
“Reflections on the Revolution in France”, by Edmund burke, New York : Liberal Arts Press,
1955.

8
book Constitutional Law of India3 noted that the principle of judicial
review is a familiar feature of the Constitutions of Canada, Australia
and India, though the doctrine of Separation of Powers has no place in
strict sense in Indian Constitution, but the functions of different organs
of the Government have been sufficiently differentiated, so that one
organ of the Government could not usurp the functions of another.
Indian concept of judicial review is multidimensional, in India judicial
review can be of three types, that is,
• Review of Legislative Actions
• Review of Judicial Decisions
• Review of Administrative Actions
Since the main theme of this project work is “Judicial review of
administrative actions in India”, so to have a better understanding of
what all is meant by the administrative actions a better understanding
of administrative law is needed.
As the functions of the governments are continuously expanding
qualitatively as well as quantitatively, the administrative law is also
growing incessantly. Hence, no satisfactory definition for
administrative law can be given.
Dr F.J. Port who published the first book bearing the title
“Administrative Law in England”4 did not venture to define the term.
He simply attempted to describe administrative law as follows:
“Administrative Law is made up of all these legal rules-either formally
expressed by statutes or implied in the prerogative-which have as their
ultimate object the fulfilment of public law. It touches, first the
legislature, in that the formally expressed rules are usually laid down
by that body; it touches judiciary, in that
(a) there are rules which govern the judicial action that may be brought
by or against administrative persons,

3
By H.L. Seeravi, Cambridge University Press, 1967.
4
By F.J. Port, Cambridge University Press, 1929.

9
(b) administrative bodies are sometimes permitted to exercise judicial
powers;
(c) it is of course essentially concerned with the practical application of
the Law.”
Administrative law is the body of law that governs the activities of
administrative agencies of government. Action of a government agency
can include rule-making, adjudication, or the enforcement of a specific
regulatory agenda. Administrative law is considered a branch of public
law. As a body of law, administrative law deals with the decision-
making of administrative units of government (e.g., tribunals, boards or
commissions) that are part of a national regulatory scheme in such areas
as police law, international trade, manufacturing, the environment,
taxation, broadcasting, immigration and transport. Administrative law
expanded greatly during the twentieth century, as legislative bodies
worldwide created more government agencies to regulate the
increasingly complex social, economic and political spheres of human
interaction.
Taxation decisions are the decisions based on administrative law that
are most often contested in courts. Civil law countries often have
specialized courts, administrative courts, that review these decisions.
Administrative law is considered as an intensive form of government.
It deals with the pathology of functions. The functions that are
discharged by the administrative authorities differ from time to time
depending upon the changes in socio-economic conditions in any
nation.
DIFFERENCE BETWEEN CONSTITUTIONAL LAW AND
ADMINISTRATIVE LAW
The following are the differences between Constitutional Law and
Administrative Law:
1. Constitutional Law is the supreme and highest law of the
country. Administrative Law is subordinate to the constitutional
Law.
2. The Constitutional Law is always regarded as the genus.
Administrative Law is the species of Constitution Law.

10
3. Constitutional Law mainly deals with various organs of a state.
Administrative Law deals with the organs of the state as motion.
4. Constitutional Law mainly deals with the structure of the state.
Administrative Law mainly deals with the various functions of
the state.
5. Constitutional Law touches all the branches of law and gives
guidelines with regard to the general principal relating to
organization and powers of organs of the state, and their relations
between citizens and towards the state. Administrative Law
doesn't deal with all branches of law, rather it details with the
powers and functions of administrative authorities.
6. Constitutional Law also gives guidelines about the intentional
relations. Administrative Law does not deal with the
International Law. It deals exclusively with the powers and
functions of administrative authorities.
7. Constitutional Law deals with the general principal of state
pertaining to all branches. Administrative Law deals with the
powers and functions of administrative authorities, including
services, public departments, local authorities and other statutory
bodies exercising administrative powers, quasi-judicial powers,
etc.
8. Constitutional Law demarcates the constitutional status of
Ministers and public servants. Administrative Law is concerned
with the organization of the services or the working of the
various government departments.
9. Constitutional Law imposes certain negative duties on
administrators, if they are found violating the fundamental rights
of the citizens and etc. It also imposes certain positive duties on
administrators, viz, implementation of social welfare schemes.
The administrators have to follow Constitutional Law first and
next the Administrative Law.
10.Constitutional Law have complete control on the administrative
law and administrators of the country. The administrators should
perform their functions with utmost obedience to Constitutional
Law. Administrative Law is just a subordinate to Constitutional
Law.

11
ADMINISTRATIVE LAW AND ADMINISTTRATIVE
ACTIONS
Administrative law is the law that governs the administrative actions.
As per Ivor Jennings- the Administrative law is the law relating to
administration. It determines the organization, powers and duties of
administrative authorities. It includes law relating to the rule-making
power of the administrative bodies, the quasi-judicial function of
administrative agencies, legal liabilities of public authorities and power
of the ordinary courts to supervise administrative authorities. It governs
the executive and ensures that the executive treats the public fairly.
Nature and scope of administrative law
Administrative law is the body of law that governs the activities of
administrative agencies of government. Action of a government agency
can include rule-making, adjudication, or the enforcement of a specific
regulatory agenda. Administrative law is considered a branch of public
law. As a body of law, administrative law deals with the decision-
making of administrative units of government (e.g., tribunals, boards or
commissions) that are part of a national regulatory scheme in such areas
as police law, international trade, manufacturing, the environment,
taxation, broadcasting, immigration and transport. Administrative law
expanded greatly during the twentieth century, as legislative bodies
worldwide created more government agencies to regulate the
increasingly complex social, economic and political spheres of human
interaction.
Taxation decisions are the decisions based on administrative law that
are most often contested in courts. Civil law countries often have
specialized courts, administrative courts, that review these decisions.
Reasons for Growth of Administrative Law5
Administrative law is considered as an intensive form of government.
It deals with the pathology of functions. The functions that are
discharged by the administrative authorities differ from time to time

5
“Reasons for Growth of Administrative law” available at “Administrative law” by GM Wagh at
https://lawtales.in/wp-content/uploads/2020/08/G.-M.-Wagh-Administrative-Law-RLLC-
2003.pdf

12
depending upon the changes in socio-economic conditions in any
nation.
The following factors are responsible for the rapid growth and
development of administrative law:
1. Radical change in the philosophy of role of State: There is a
radical change in the philosophy as to the role played by the
State. The negative policy of maintaining ‘law and order’ and of
‘laissez faire’ is given up. The State has not confined its scope to
the traditional and minimum functions of defence and
administration of justice, but has adopted the positive policy and
as a welfare State has undertaken to perform varied functions.
2. Urbanization: Due to the Industrial Revolution in England and
other countries and due to the emergence of the factory system
in our country, people migrated from the countryside to the urban
areas in search of employment in factories and large scale
industries. As a result of which there arose a need for increase in
providing housing, roads, parks, effective drainage system etc.
Legislations were enacted to provide all these basic facilities and
accordingly administrative authorities were required to make
rules and regulations, frame schemes for effective infrastructure
and facilities which ultimately lead to the growth of
administrative law.
3. To meet Emergency Situations: Enacting legislations, getting
assent from the President is all a lengthy process, whereas it is
very easy and quick to frame schemes and rules for meeting any
emergency situations that arise in a locality. Due to the flexibility
of making the rules, obviously there is a constant growth of
administrative law making in the country.
4. Inadequacy of Judicial System: The judicial system proved
inadequate to decide and settle all types of disputes. It was slow,
costly, inexpert, complex and formalistic. It was already
overburdened, and it was not possible to expect speedy disposal
of even very important matters, e.g. disputes between employers
and employees, lockouts, strikes, etc. These burning problems
could not be solved merely by literally interpreting the provisions
of any statute, but required consideration of various other factors

13
 and it could not be done by the ordinary courts of law. Therefore,
industrial tribunals and labour courts were established, which
possessed the techniques and expertise to handle these complex
problems.
5. Inadequacy of Legislative Process: The legislative process was
also inadequate. It had no time and technique to deal with all the
details. It was impossible for it to lay down detailed rules and
procedures, and even when detailed provisions were made by the
legislature, they were found to be defective and inadequate, e.g.,
rate fixing. And, therefore, it was felt necessary to delegate some
powers to the administrative authorities.
6. Scope for Experimentation: There is scope for experiments in
administrative process. Here, unlike legislation, it is not
necessary to continue a rule until commencement of the next
session of the legislature. Here a rule can be made, tried for some
time and if it is found defective, it can be altered or modified
within a short period. Thus, legislation is rigid in character while
the administrative process is flexible.
7. Avoidance of Technicalities: The administrative authorities can
avoid technicalities. Administrative law represents functional
rather than a theoretical and legalistic approach. The traditional
judiciary is conservative, rigid and technical. It is not possible for
the courts to decide the cases without formality and technicality.
The administrative tribunals are not bound by the rules of
evidence and procedure and they can take a practical view of the
matter to decide complex problems.
8. Preventive Mechanism: Administrative authorities can take
preventive measures, e.g. licensing, rate fixing, etc. Unlike
regular courts of law, they have not to wait for parties to come
before them with disputes. In many cases, these preventive
actions may prove to be more effective and useful than punishing
a person after he has committed a breach of any provision or law.
As Freeman says, “Inspection and grading of meat answers the
consumer's need more adequately than does a right to sue the
seller after the consumer is injured.”
9. Effective Enforcement of Preventive Measures:
Administrative authorities can take effective steps for

14
 enforcement of the aforesaid preventive measures; e.g.
suspension, revocation and cancellation of licences, destruction
of contaminated articles, etc. which are not generally available
through regular courts of law.

ADMINISTRATIVE ACTIONS
In the 21st century various functions are performed by administrative
entities so much so that the administrative process cuts across the
traditional bounds of classification and combines into one the powers
exercised by all the organs, i.e. legislature, executive, judiciary. It’s
evident that a wide variety of activities fall within the sphere of
‘administrative action’ and that even administrative authority doesn’t
restrict to courts and legislative bodies of the country. Residuary
functions of administrative bodies may themselves partake themselves
of the legislative or judicial quality.6 The consideration that arises is
whether the function performed by executive authorities is purely
administrative, quasi-judicial or quasi-legislative in nature, since
there’s no precise or scientific test to distinguish one from another.

Classification is essential and inevitable as many consequences flow

from it, e.g. if an executive authority exercises judicial or quasi-judicial
functions it must confirm with the principles of natural justice or
amenable to certiorari or prohibition7 but if it’s an administrative,
legislative or quasi-legislative function, that’s not the case.8 It is
therefore imperative to determine what type of function the
administrative authority performs.

6
DD Basu, Administrative Law, (1998) p. 6
7
Express News Paper (p) Ltd v. Union of India, AIR 1958 SC 578
8
Union of India v. Cynamide India Ltd, AIR 1987 SC 1802

15
Rule of Law

The basis of Administrative Law is the ‘Doctrine of the Rule of Law’.

The expression ‘Rule of Law’ has been derived from the French phrase
‘la principle de legalite’, i.e., a Government based on the principles of
law.

Law may be taken to mean mainly a rule or principle which governs the
external actions of the human beings and which is recognized and
applied to the affairs in a country where, in main, the law is observed
and order is kept. It is an expression synonymous with law and order.

It was expounded for the first time by Sir Edward Coke, and was
developed by Prof. A. V. Dicey in his book 'The law of the Constitution'
published in 1885.

According Coke, in a battle against King, he should be under God and

the Law, thereby the Supremacy of Law is established.

Dicey regarded rule of law as the bedrock of the British Legal System.
His doctrine is accepted in the constitutions of U.S.A. and India.
According to Prof. Dicey, rules of law contain three principles:

1. Supremacy of Law;
2. Equality before Law; and
3. Predominance of Legal Spirit.

The Constitution of India is the supreme law of the country. The

doctrine of Rule of Law has been adopted in Indian Constitution. The
ideals of the Constitution, justice. liberty and equality are enshrined in
the preamble. Part III of the Constitution of India guarantees the FRs.

16
Kesavanda Bharati vs. State of Kerala,9 the Supreme Court enunciated
the rule of law as one of the most important aspects of the doctrine of
basic structure.

Maneka Gandhi vs. Union of India,10 the Supreme Court declared that
Article 14 strikes against arbitrariness.

Indira Nehru Gandhi vs. Raj Narain,11 article 329-A was inserted in
the Constitution under 39th amendment, which provided certain
immunities to the election of office of Prime Minister from judicial
review. The Supreme Court declared Article 329-A as invalid since it
abridges the basic structure of the Constitution.

A.D.M. Jabalpur vs. Shivakant Shukla12 (Popularly known as the

Habeas Corpus Case) The question before Supreme Court was,
whether there was any rule of law in India apart front Article 21 of the
Constitution. The Supreme Court by majority held that there is no rule
of law other than the constitutional rule of law. Article 21 is our rule of
law. If it is suspended, there is no rule of law.

Classification of Administrative Actions

Classification of administrative action is necessary to determine the
scope of effect of judicial and legislative powers on administrative
actions, such as judicial review of administrative actions is less
restricted as compared to legislative action; mandamus cannot be issued
against an executive body with respect to its legislative actions,
etc. The general sentiment amongst legal writers and lawyers is that
any attempt made at classifying administrative law is not merely
impossible but also redundant. Even a student of administrative law is
made to delve into this classification since there is a complex

9
AIR 1973 SC 1461
10
1978 AIR 597
11
1975 AIR 1590
12
1976 AIR 1207

17
amalgamation of the three wings of the government and projection of
one wing on another.

Broadly speaking, administrative action can be classified into three

groups:13

1. Quasi-legislative or rule-making action

2. Quasi-judicial action or rule-decision action
3. Purely administrative action or rule application action

Quasi-legislative Actions:

Legislature is the law-making branch of the State. Unlike constitutions

like the Australian Constitution and American Constitutions14, wherein
this power has been explicitly demarcated, the Indian Constitution
doesn’t have express provisions for the same. Though the intention of
the Constitution makers remains that legislative powers should be
exercised by those in whom it’s vested15, he same cannot be fructified
in lieu of the efficient working of the intensive form of the modern
government.

Therefore, delegation of powers to administrative bodies is a necessity.

When any administrative body exercises the law-making power
delegated to it, it’s known as rule-making action or quasi-legislative
action. When an instrument of a legislative nature is made by way of
delegated powers, it’s called subordinate legislation16, being
subordinate in the sense that the powers of the authority are limited by
the statute which conferred these powers.

13
SP Sathe , Administrative Law (1991) p. 126.
14
Constitution of the United States of America, art 1 ; Constitution of Australia, sec 1

15
In Re Delhi Law Act Case, AIR 1951 SC 332.
16
Halsbury, (94th edn. Vol. 44), p 981.

18
Quasi-legislative action is the function of subordinate legislation –
making rules, regulations and other statutory instruments to fill in the
details of legislative enactments in order to make the execution of laws
possible.17 It imbibes in itself the characteristics which a normal
legislation possesses.

According to Chinnappa Reddy, J. a legislative action has four features:

1. Generality; 2. Prospectivity; 3. Public interest; 4. rights and
obligations flowing from it.18 These features help distinguish quasi-
legislative actions from quasi-judicial action. However, this even in
certain cases is not easy differentiation. In Express New Paper v
UOI, the Supreme Court kept question whether the function of Wage
Commission under the Journalists (Condition of Service) Act, 1956 is
quasi-legislative or quasi-judicial was left open.19

However the power to fix the price of sugar was held to be quasi-
legislative.20 Therefore it can be understood that the task of
differentiating between legislative and administrative action is difficult
and theory and impossible in practice.

If a particular function is termed ‘rule-making’ instead of ‘judicial’ it

can have substantial effects upon the parties concerned.21 There is no
right of being heard before the making of a legislation, whether primary
or delegated unless provided by the statute itself.22 But since these
actions are controlled by Parliament and the courts, Art 14 equally
applies to these actions as well.23

17
Jayantilal Amratlal v F. N. Rana, AIR 1964 SC 648 at 655.
18
Union of India v. Cynamide India Ltd.
19
AIR 1958 SC 578.
20
Sita Ram Sugar Co. Ltd. v Union of India (1990) 3 SCC 233
21
Schwartz, Administrative law (1976) p 143-44.
22
Sundrajas Kanyalal Bhatija v. Collector, Thane, AIR 1990 SC 261.
23
Sri Malaprabha Coop. Sugar Factory Ltd. v. Union of India, (1994)1 SCC 648.

19
Quasi-Judicial Actions:

Majority of decisions which affect individuals and private bodies come

not from administrative agencies. Since administrative decision making
is a by-product of intensive form of government, the traditional judicial
system falls short in giving quantitative and qualitative judgements
required in a welfare state.

Some jurisdictions use the term ‘quasi-judicial’ to describe

administrative, adjudicatory or decision –making process. However
since the term quasi-judicial is somewhat vague, it’s difficult to define
and thereby falling to disuse. Administrative decision making may be
defined as a power to perform acts administrative in nature but
requiring some judicial characteristics.

On the basis of this various administrative functions have been held to

be quasi-judicial by various courts:

1. Disciplinary actions against students.24

2. Disciplinary proceedings against an employee for misconduct.25

3. Confiscation under the Sea Customs Act, 1878.26

4. Cancellation, suspension, revocation or refusal to renew licence

or permit.27

5. Determination of citizenship.28

24
Bhagwan v. Ramchand, AIR 1965 SC 1767.
25
Cacutta Dock labour Board v. Jaffar Imam, AIR 1966 SC 282
26
East India Commercial Co, y. Collector of Customs, AIR 1962 SC 1893.
27
Fedco Ltd. v. Bilgrami, AIR 1960 SC 415
28
Ayubkhan v. Commr, AIR 1965 SC 1623.

20
 6. Deciding statutory disputes.29

7. Power to continue detention of seized goods beyond a certain

period.30

8. Refusal to grant NOC under Bombay Cinemas (Regulations)

Act, 1953.31

9. Forfeiture of pensions and gratuity.32

10.Granting or refusing permission for retrenchment.33

11.Grant of permit by regional transport committee.34

Donoughmore Committee on Minister’s Powers (1932) had attempted

to analyse the attributes of a true administrative action. The Committee
was of the view that a true judicial decision presupposes a lis between
two or more parties and then involves:

1. Presentation of the case

2. Ascertainment of evidence
3. Submission of legal arguments
4. Decision which disposes of the whole matter by applying law
and analysing evidence of the case

A quasi-judicial action involves the first two elements, may involve the
third but never the fourth. Decisions which are administrative stand on
a wholly different footing from quasi-judicial and judicial decisions
since in case of administrative actions there is no legal obligation to

29
C.S.T. v. Super Cotton works, (1989)1 SCC 643
30
Lakhanpal v. Union of India, AIR 1967 SC 1507
31
State of Gujarat v. Krishna Cinema, (1970)2 SCC 744.
32
State of Punjab v. Iqbal Singh, (1976)2 SCC 1
33
Workmen v. Meenakshi Mills, (1922)3 SCC 336.
34
Mitlesh Garg v. Union of India, (1992)1 SCC 168.

21
consider and weigh submission or collect evidence or pass judgement.
The entire discretion is left to the administrative authority. However,
this approach of the committee seems problematic because judges can’t
be regarded merely as norm-producing machines. Also, in certain areas
of administrative adjudication, such as tax, administration applies facts
and laws similar to a judge. Hence, it’s wrong to relegate a mixture of
administration to the virgin purity of judicial pronouncement to a quasi-
judicial position. Also, this classification will fail in the case of
independent tribunals.

The distinguishing feature of a quasi-judicial proceeding is that the

authority concerned is required by law to act judicially. In India judicial
search for the duty to act judicially was made within the statute35 under
which the authority exercises powers, sometimes in extraneous and
remote material36 and the implications arising thereof.37 This doctrinal
approach of both Indian and English Courts caused confusion and
eluded justice in several cases. Finally to prevent this, the foundation
for application of principles of natural justice was laid down by Subba
Rao, J.’s dissent in Radheshyam Kare v State of MP.38 He wrote that
incompetency carries with it a stigma and what is more derogatory than
being stigmatized as incompetent to do their duty. It’s not reasonable
to assume that officials in a democratic country are allowed to be
punished without being given a chance to be heard. This dissent became
strikingly pronounced in A.K. Kraipak v. Union of India.39 Herein the
Supreme Court held that though the action of making selection for
government service is administrative, yet the selection committee is
under a duty to act judicially. The Court observed that the dividing line
between an administrative power and quasi-judicial power is quite thin

35
Province of Bombay v. Khusaldas Advani, AIR 1950 SC 222
36
G. Nagesware Rao v. A.P. S.R.T.C., AIR 1959 SC 308.
37
Indian Sugar & Refineries Ltd. v. Amaravathi Service Co-operative society, AIR 1976 SC 775.
38
AIR 1959 SC 107
39
(1969)2 SCC 262

22
and being gradually obliterated40. Going a step further the Supreme
Court clearly held in CB Boarding and Lodging House v State of
Mysore41 that it is not necessary to classify an action of the
administrative authority as quasi-judicial or administrative because the
administrative authority is bound to follow the principles of natural
justice in any case.

Purely Administrative Action

The expression administrative act is a comprehensive expression,

comprising of three categories namely, quasi-legislative, quasi-judicial
and purely administrative. In Ram Jawaya v State of
Punjab42 Mukherjee, CJ. observed that an exhaustive definition of
executive function can’t be devised. Ordinarily, executive power refers
to the residue of governmental functions that remain after legislative
and judicial functions are taken away. Thus, administrative functions
are those which are neither legislative nor judicial. A quasi-legislative
act consists of making rules, regulations and the like, while a purely
administrative act is concerned with the treatment of a particular
situation. Therefore, a legislative act is the creation and promulgation
of a general rule of conduct without reference to particular cases; an
administrative act includes the adoption of a policy, the making and
issue of specific directions, and the application of a general rule to a
particular case in accordance with the requirements of policy of
expediency or administrative practice.

Accordingly,43:

1. In certain circumstances an order has to be published as a

statutory instrument if it is of a legislative nature but not if it is
40
AIR 1970 SC 150
41
AIR 1970 SC 2042.
42
AIR 1955 SC 549
43
De Smith, Judicial Review of Administrative Actions (1980) p. 71

23
 of an executive (i.e., administrative) character. But this test
adopted for discriminating between the legislative and executive
often appear to be pragmatic (is it in the public interest that this
order should be published?) rather than conceptual.

2. It has generally been assumed that the courts will not award
certiorari to quash a legislative order Now that the courts no
longer insist upon the need to characterize administrative
decisions reviewable by certiorari as judicial in nature, it would
perhaps be surprising, if they were to exclude from reach of the
remedy administrative decisions of a legislative nature.

3. Courts may declare administrative act to be invalid for manifest

unreasonableness, but it is not so clear that they have jurisdiction
to hold a statutory instrument to be invalid for unreasonableness
per se. However, bye laws, a form of delegated legislation, have
always been reviewable for manifest unreasonableness.

4. Authority to sub delegate legislative powers will be held to be

implied only in the most exceptional circumstances. The courts
are somewhat less reluctant to read into a grant of administrative
authority to sub-delegate. It is, therefore, necessary to determine
what type of functions the administrative authority performs

5. The duty to give reason for their decision does not extend to
decisions in connection with the orders or schemes of a
legislative and not of an executive character.

An administrative action is the residuary action which is neither

legislative nor judicial. It has no procedural obligations of collecting
evidence and weighing argument, it is based on subjective satisfaction
where decision is based on policy and expediency. The principles of
natural justice can be ignored completely when the authority is

24
exercising “administrative powers”. Unless the statute provides
otherwise, a minimum of principles of natural justice must always be
observed depending on the fact situation of each case.

The new judicial trend is to insist that even if an authority is not acting
in a quasi-judicial capacity, it still must act fairly. The courts have
propounded the proposition that whether the function being discharged
by the administration may be regarded as ‘quasi-judicial’ or
‘administrative’, it must nevertheless be discharged with fairness.44 The
courts are increasingly shedding the use of the terms ‘quasi-judicial’
and ‘natural justice’ and instead adopting the concept of fairness. The
advantage of the new judicial trend is that procedural fairness can be
imposed on all decision-making bodies without having to characterise
their functions as quasi-judicial.

The aim of both administrative inquiry and quasi-judicial inquiry is to

arrive at a just decision and “if a rule of natural justice is calculated to
secure justice, to prevent miscarriage of justice, it’s difficult to see why
it should be applicable to quasi-judicial inquiry and not to
administrative inquiry. It must logically apply to both. The concept of
fairness has become a much more widely applicable procedural
requirement. However, in spite of great expansion in the range of the
administration where fair procedure is applied, the two concepts: quasi-
judicial and natural justice-occur quite often in judicial opinions. For
certain purposes the concept of quasi-judicial is still relevant. It
therefore seems that the two concepts, ‘fairness” and “quasi-judicial”
would continue to hold the field. It is also possible to argue on the basis
of case law, that whereas those acting in a quasi-judicial manner have
to observe the principles of natural justice those acting administratively
have only to act fairly.

44
Pergamon Press, (1970)3 All E.R. 535,

25
A few actions can be noted for the sake of clarity:

1. Issuing directions to subordinate officers not having the force of

law.45

2. Making a reference to a tribunal for adjudication under the

Industrial Disputes act.46

3. Interment and deportation.47

4. Granting or withholding sanction to file a suit under Section

55(2) of the Muslim Wakf Act, 1954.48

5. Granting or withholding sanction by the Advocate General under

Section 92 of the Civil Procedure Code49

6. Fact-finding action.50

7. Requisition, acquisition and allotment.51

8. Entering names in the surveillance register of the police.52

9. Power of the Chancellor under the U.P. State Universities Act,

1973 to take decision on the recommendation of the Selection

45
Nagarajan v. State of Mysore, AIR 1966 SC 1942.
46
State of Madras v. C.P. Sarathy, AIR 1953 SC 53.
47
Gopalan v. State of Madras, AIR 1950 SC 27.
48
Abdul Kasim v.Mohd. Dawood, AIR 1961 Mad. 244
49
A.K. Bhaskar v. Advocate-General, AIR 1962 Ker. 90
50
Narayanlal v. Mistry, AIR 1961 SC 29.
51
Province of Bombay v. Khushaldas Advani, AIR 1950 SC 222.
52
Malak Singh v. State of Punjab, AIR 1981 SC 760.

26
 Committee in case of disagreement of the Executive Council
with such recommendation.53

10.Functions of a selection Committee.54

11.Decision to extend time for anti-dumping investigation.55

Administrative action can be statutory having the force of law or non-

statutory which are devoid of such force. The bulk of the administrative
action is statutory because a stature or the Constitution gives it a legal
force but, in some cases, it may be non-statutory, such as issuing
directions to subordinate, but its violation may be visited with
disciplinary action.56 Though by and large administrative action is
discretionary and is based on subjective satisfaction, however, the
administrative authority must act fairly, impartially and reasonably.

There is a general consensus amongst writers and lawyers alike that any
attempt at classifying administrative functions on any conceptual basis
is redundant. But sometimes even an administrative lawyer has to
classify action into administrative, legislative, judicial and quasi-
judicial. The fiction of quasi has been conveniently created to
distinguish acts of the three organs. Although scholars decry such
dichotomy as too artificial and superficial, such classifications are
necessary especially between purely administrative and quasi-judicial.
Also, the concept of fair-play in administrative actions has discarded
the distinction between the two, the fact still remains that in the present

53
Neelima Mishra v. Harinder Kaur, (1990)2 SCC 746.
54
National Institute of Mental health and Neuro-Sciences v. K. Kalyana Raman, 1992 Supp(2) SCC
481.
55
Designated Authority (Anti-Dumping Directorate) Ministry of Commerce v. Haldor Topsoe A/s.
(2000)6 SCC 626.
56
Raman and Raman v. State of Madras, AIR 1959 SC 694

27
state of administrative law requires labelling of the functions and
actions.

28
JUDICIAL REVIEW

Judicial Review is the power of the Courts to determine the

constitutionality of Legislative act in a case instituted by aggrieved
person. It is the power of the Court to declare a legislative Act void on
the grounds of unconstitutionality. It has been defined by Smith &
Zurcher, “The examination or review by the Courts, in cases actually
before them, of legislative statutes and executive or administrative acts
to determine whether or not they are prohibited by a written
Constitution or are in excess of powers granted by it, and if so, to
declare them void and of no effect”.57 Edward S. Corwin also says that
Judicial Review is the power and duty of the courts to disallow all
legislative or executive acts of either the central or the State
governments, which in the Court’s opinion transgresses the
Constitution.58

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. “Judicial Review is a
mechanism and therefore the Concept of Judicial Activism is a part of
this mechanism. So far as the, Indian constitution has created an
57
Smith, Edward Conard and Zurcher, Arnold Jhon, Dictionary of America Politics, Barnes and
Noble, New York, 1959, p. 212.
58
Corwin, Edward S., A Constitution of Powers in a Secular State, The Michie Company, USA,
1951, p. 3-4.

29
independent judiciary which is vested with the power of judicial review
to determine the legality of any validity of law and any executive action.
Supreme Court of India formulated various doctrines on the basis of
Judicial Review like “Doctrine of Severability, Doctrine of Eclipse,
Doctrine of Prospective Overruling” etc. In India Judicial Review based
on three important dimensions, these are” Judicial Review of
Constitutional Amendments”, Judicial Review of Legislative Actions,
“Judicial Review of Administrative Actions”.

To determine the unconstitutionality of legislative Acts is the

fundamental objects of judicial review. It adjusts constitution to the new
condition and needs of the time. To uphold the supremacy of
constitutional law and to protect the fundamental rights of the citizens
and also to maintain federal equilibrium between Centre and the States
are the main concerns of objectives of judicial review in India.
Legislative and administrative powers between Centre and the State of
constitution are also the main concern of judicial review.

It is the duty of the judiciary the constitution to keep different organs

of the state within the limits power conferred upon them by the
constitution. The legitimacy of judicial review is based in the Rule of
Law, and the need for public bodies to act according to law. Judicial
review is a means to hold those who exercise public power accountable
for the manner of its exercise, especially when decisions lie outside the
effective control of the political process. Judicial Review is a great
weapon through which arbitrary, unjust harassing and unconstitutional
laws are checked.

30
Historical Background

In England, there has always been the supremacy of the Parliament. The
judiciary was not supposed to review the acts of the Parliament, as the
Parliament is supreme to all. Judicial review remained restricted to the
executive actions. The Judiciary was concerned in keeping the action
of the executive in line with the Constitutional values, though un-
written in Britain. The Judiciary though expanding the scope of
negligence through the case like Rylands v. Fletcher59 (principle of
strict liability), and Donoghue v. Stevenson60 (manufacturer of goods
owe a duty towards an ultimate consumer with whom there is no
contractual relation), maintained the myth that the judges do not create
laws.61

The concept of the judicial review was carried by Britain to its colonies
as well. That is why the presence of the concept was always there in the
Indian legal system. Similar, was the situation in the U.S.A. Being the
colony of Britain, it inherited the common law system. The common
law system, which provided the basis for the establishment of the
concept of the judicial review in the U.S.A.

It was for the first time in the year 1803 that the U.S Supreme Court in
Marbury v. Madison62 declared that the legislative actions are also
under the purview of the judicial review. The Constitution of the U.S.A.
does not provide any provision for the exercise of the power of the
review by the judiciary. It is argued that through the case of Marbury
the Court assumed the power of judicial review in itself.

59
1868 UKHL 1
60
1932 UKHL 100
61
Sathe, S.P. Judicial Activism in India: Transgressing Borders and Enforcing Limits, 2nd ed. New
Delhi: Oxford
62
5 U.S. 1 Cranch 137 137 (1803)

31
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 to
implicate. But in 1877 Emperor vs. Burah63 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 vs. Moment64, 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
Madras65, 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.

63
[ 1877] 3. ILR 63 (Cal)
64
[1913 ]40. ILR 391 (Cal)
65
[ 1918]. AIR 1210 (Mad)

32
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 13,32,131-
136,143,226,227,245,246.,372.

Important Doctrines Formulated by Courts through Judicial Review

Art. 13 of constitution incorporates “Judicial Review of Post

constitution and Pre- constitutional 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. This power has been
conferred on the High Courts and the Supreme Court of India under
Art. 226 and 32 which can be declare a law unconstitutional if it is
inconsistent with any of the provisions of PART 3 of the Constitution.
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.
Doctrine of Prospective overruling is the doctrine to interpret the
judicial decisions. These doctrines are enumerated through interpret the
constitution provisions by Supreme Court. 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 Severability:

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

33
 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 vs. State of Madras66, 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
invalidate the impugned law.

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 vs. State of M.P.67 an existing

State law authorized the State Govt to exclude all the private

66
[1950] AIR 27 (SC)
67
1955 AIR 781

34
 motor transport operators from the field of transport business.
After this part 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 Overruling:

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 is 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 Punjab68, In this case the court
overruled the decisions laid down in Sajjan Singh69 and
Shankari Prasad70 cases and propounded Doctrine of
Prospective Overruling. The Judges of 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

68
[1967] AIR 1643(SC)
69
[1965] AIR 845(SC)
70
[1951) AIR 458(SC)

35
 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. These dimensions are
summarized as follows:
A. 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 Art. 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 India71 the first case on
amendability of the constitution the validity of the constitution
(1st Amendment) Act, 1951, curtailing the “Right to Property”
guaranteed by Art. 31 was challenge .The argument against the
validity of ( 1st Amendment) was that Art. 13 prohibits
enactment of a law infringing an abrogating the fundamental
rights, that the word ‘law’ in Art 13 would include “any law”,
then a law amending the constitution and therefore, the validity
of such a law could be judged and scrutinized with reference to
the fundamental rights which it could not infringe. It was argued
that the State in Article 12 included Parliament and the word
“law” in Art. 13(2), therefore, must include constitutional
amendment. The Supreme Court, however, rejected the above

71
1951 AIR 458

36
 argument 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. Rajasthan72, 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 Singh, in 1967 in

Golak Nath vs. State of Punjab73, the same question regarding
constitutional amendment was raised. In this case the inclusion
of the Punjab Security of Land Tenures Act,1953 in the Ninth
schedule was challenged on the ground that the Seventeenth
Amendment by which it was so included as well as the First and
the Fourth Amendments abridged the fundamental rights were
unconstitutional. 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 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. Art. 368 only lays
down the procedure for amendment of Constitution. Amendment
is a legislative process.”74

72
1965 AIR 845
73
[1967] AIR 1643(SC)
74
MP SINGH, V.N. SHUKLA’S CONSTITUTION OF INDIA, (11th, Eastern Book Company,2008), 999

37
 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.75

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 kerela76 which is also known as “Fundamental Rights
Case”. In this case the petitioner had challenged the validity of
Kerala Land Reforms Act 1963. But during the pendency of the
petition the Kerala Act was amended in 1971 and was placed in
the Ninth Schedule by the Twenty Ninth Amendment Act. The
petitioner was challenged the validity of Twenty Fourth, Twenty
Fifth, and Twenty Ninth Amendment to the Constitution and
also the question was involved was as to what extent of the
amending power conferred by Art. 368 of the Constitution? 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”.
According to this judgment of largest bench in the constitutional
history propounded the “Theory of Basic Structure: A
Limitation on Amending Power.” This theory formulated By
Supreme court through Doctrine of Judicial Review. In, Indira
Nehru Gandhi vs. Raj Narayan77, 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 an 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

75
DR. J.N. PANDEY, The Constitutional Law of India, (49th, Central Law Agency, Allahabad,2012)
76
[ 1973] AIR 1461(SC)
77
[ 1980] AIR 1789(SC)

38
 which was an essential postulate of democracy which in turn was
a basic structure of the constitution”.
Again, in Minerva Mills vs. Union of India78, the petition was
filed in the Supreme Court challenging the taking over of the
management of the mill under the Silk Textile undertaking
(Nationalisation) Act, 1974, and an order made under S. 18-A of
the Industrial (Development and Regulation) Act, 1951. The
petition challenged the constitutional validity of clauses (4) and
(5) of Art. 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 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 interpreting the various provisions such as Art. 13,368 and
also ensure the Supremacy of the Constitution which the basic
feature of the Constitution.

B. Judicial Review of Parliamentary and State Legislative

Actions

Art. 245 and 246 of the Indian constitution gives legislatives

powers to Parliament and State Legislatures. Art. 245 (1)

78
[ 1975] AIR 2299(SC)

39
 provides “subject to the provisions of the constitution, the
parliament may make any laws for the whole and any part of the
territory of India and a State Legislature may make a law for
whole of the state and any part thereof”. The word “subject to the
provisions of the constitution” are 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 have 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 India79 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. Again, in L Chandra vs. Union of India80,
clause 2(d) of Art. 323-A and clause 3(d) of Art.323-B was
challenged on the ground that these clauses exclude the
jurisdiction of High Courts in service matters. The Constitutional
79
[1987]1 SCC 124(SC)
80
AIR[ 1R7] ASC 1125

40
 Bench unanimously held that “these provisions are to the extent
they 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 integral part and it also formed part of its basic
structure.” Then, in the recent scenario, I.R. Coelho vs. State of
Tamil Nadu81, 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
Keshavananda 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 Keshavananda 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”.

C. Judicial Review of Administrative Actions in India:

Dealt in detail under next chapter.

Features of Judicial Review

Power of judicial review can be exercised by both the Supreme Court
and High Courts:
Under Article 226 a person can approach the High Court for violation
of any fundamental right or for any legal right. Also, under Article 32
a person can move to the Supreme Court for any violation of the

81
AIR 2007 SC 861

41
fundamental right or for a question of law. But the final power to
interpret the constitution lies with the apex court i.e Supreme Court.
The Supreme Court is the highest court of the land and its decisions are
binding all over the country.

Judicial Review of both state and central laws:

Laws made by centre and state both are the subject to the judicial
review. All the laws, order, bye-laws, ordinance and constitutional
amendments and all other notifications are subject to judicial review
which are included in Article 13(3) of the constitution of India.

Judicial review is not automatically applied:

The concept of judicial review needs to be attracted and applied. The
Supreme court cannot itself apply for judicial review. It can be used
only when a question of law or rule is challenged before the Hon’ble
court.

Principle of Procedure established by law:

Judicial Review is governed by the principle of “Procedure established
by law” as given in Article 21 of the Indian Constitution. The law has
to pass the test of constitutionality if it qualifies it can be made a law.
On the contrary, the court can declare it null and void.

Current Position of Judicial Review in India:

The Supreme Court of India since the era AK Gopalan’s case to the
historic judgment in I.R. Coelho’s case 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 of
the Constitutional Jurisprudence. In its recent judgment in Madras Bar

42
Association vs. Union of India82 the Supreme Court scrutinized 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.
Sec 409(3)(a), 409(3)(c), and Sec. 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
NACLT, 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.
Shayara Bano vs Union of India83 in this case supreme court of India
held that triple talaq is a unilateral power given to the husband to
divorce his wife and on the face of it, it looks arbitrary therefore triple
talaq is unconstitutional being violative of fundamental rights. Justice
Nariman propounded Doctrine of Manifest Arbitration and held that
triple talaq is violative of Art 14 of the constitution of India.
In Joseph Shine vs Union of India84 Supreme Court of India held that
sec 497 of Indian Penal Code is unconstitutional. Similarly, before
Supreme Court of India in Navtej Singh Joher vs Union of India85 the
constitutional validity of sec 377 was challenged on the ground that it
voilates fundamental right. Justice Chandrachud observed that “i am
not bound by societal morality, i am bound by constitutional morality
and if the constitution protects the intrests of a single citizen of india i
am bound to protect it". Therefore Sec 377 of I.P.C was decriminalized
and was held to be unconstitutional.
Anuradha Bhasin vs Union of India86, The Union Territory of Jammu
and Kashmir was directed by Supreme Court to review all orders

82
(2015) SCC 484
83
AIR 2017 9 SCC 1 (SC)
84
2018 SC 1676
85
(2016) 7 SCC 485
86
2020 SCC OnLine SC 25

43
suspending the internet services forthwith, all orders not in accordance
with law must be revoked. Supreme Court held that the Freedom of
Speech and Expression and the Freedom to practice any Profession or
carry on any Trade, Business or Occupation over the medium of
internet enjoys constitutional protection under Art 19 (1) (a) and Art 19
(1) (g). The restriction upon such fundamental rights should be in
consonance with the mandate under Art 19 (2) and Art 19 (6) of the
constitution inclusive of the test of Proportionality.

Although Doctrine of Judicial Review is the basic structure of the

constitution of India, it is not justified in policy matters. However, it is
justified in policy matters provided that the policy is arbitrary, unfair or
violative of fundamental rights. In Kerela Bar Hotels Association vs
State of Kerela87, the Supreme Court held that the courts must be loath
to venture into an evaluation of state policy which must be given a
reasonable time to pan out. If a policy proves to be unwise, oppressive
or mindless, the electorate has been quick to make the government
aware of its folly.

The Doctrine of Judicial Review is thus, the interposition of the judicial

restraint on the legislative, executive and judicial actions of the
government. It has assumed the status of permanence through judicial
decisions laid down from 1973 till now. Thus, Judicial Review is the
basic structure of the constitution of India and any attempt to destroy or
damage the basic structure is unconstitutional.

87
AIR 2016 SC 163

44
JUDICIAL REVIEW OF ADMINISTRATIVE ACTION
Judicial review of administrative action falls under two heads:
1. Public Law review
2. Private Law review
Public law regime is one which imposes duties towards public at large
and makes the government responsible to the public. On the other hand,
private law regime imposes duties towards private individuals and
makes government to the individual concerned. Public law duties arise
normally under the Constitution, though quite often they may arise out
of statutes or even Rules made under statutes. Private law duties almost
invariably arise under statutory law or common law principles.
Public law review is done through writ jurisdiction while private law
review falls under the statutory provisions applicable to the relevant
case. Public Law review is done by the higher judiciary, i.e., High
Courts and the Supreme Court, while private law review is done by the
subordinate judiciary through suits. Main types of liabilities enforced
under the private law review are tortuous and contractual liabilities
arising under art. 300.
DOCTRINE OF LEGITIMATE EXPECTATION
Where a sudden change in government policy adversely affects the
interests of a person, he may challenge the change on the ground that
his legitimate expectations are belied. Thus, the doctrine is against the
arbitrary use of powers. The plea is available when the government
does not exercise its discretion on the expected lines. Usual examples
of such cases are refusing to renew contracts and sudden
discontinuation of a scheme, etc. Where normally a contract is renewed
as a matter of routine after the expiry of the term, unless there is a
specific ground of irregularity, breach of conditions, etc., non-renewal
or non-extension are treated as breach of legitimate expectations. It may
also appear to be arbitrary when in other cases which are similarly
positioned there is a routine renewal and in the case of an individual
there is no such renewal. This may happen due to taking into
consideration irrelevant facts, or due to mala fide exercise of powers.

45
Supreme Court has developed the doctrine to avoid arbitrary exercise
of powers by the state using art. 14 and requirement of reasonableness.
The early instance of the application of the doctrine is found in State
of Kerala vs. K. G. Madhavan Pillai88, in this case, Government
issued a sanction order to the respondents to open a new unaided school
and to upgrade the existing ones. After 15 days, it issued another order
keeping the sanction in abeyance. This order was challenged on the
ground of violation of natural justice. It was held that the first order
created a legitimate expectation in the respondents and the same was
belied by the second order. Hence it was invalid.
Scheduled Caste and Weaker Section Welfare Association vs. State
of Karnataka89: The government issued a notification in which certain
areas were listed where sum clearance was to be undertaken.
Subsequently, the government issued another notification revising the
list. In the second notification many areas which were in the first list
were left out. It was challenged on the ground that no hearing was given
to the residents of the areas which were dropped in the second list. This
was upheld by the court.
Navjyoti Co-operative Housing Society vs. Union of India90: The
development authority changed the order of priority for the allotment
of land to co-operative societies from “serial number of registrations”
to “date of approval of the list of members”. No notice or hearing was
issued to the applicants before making the change. The order was
quashed on the ground of violation of legitimate expectation.
Often to such cases Wednesubury principles are applied.
Union of India vs. Hindustan Development Corporation91: There
was no fixed procedure for fixing price and quantity for the supply of
the food grains. The government wanted to break a cartel in the public
interest. In order to achieve that the government introduced dual pricing
system (lower price for big suppliers and higher price for small

88
(1988) 4 SCC 669
89
1991 AIR 1117
90
AIR 1993 SC 155
91
AIR 1999 SC 1493

46
suppliers). It was held that there was no denial of legitimate expectation
as the same was not based on any law, custom or past practice.
The Supreme Court pointed out that time is a three-fold present: the
present as we experience it, the past as a present memory and the future
as a present expectation. For the purposes of law expectation cannot be
the same as anticipation. It is different from a wish, desire or hope nor
can it amount to a claim or demand on the ground of a right. A pious
hope cannot become a legitimate expectation. The legitimacy of an
expectation can be inferred only if it is founded on the sanction of law,
or custom or an established procedure followed in a natural and regular
sequence.
State of West Bengal vs. Niranjan Singh92: The agency was granted
right to collect tools. The government instead of renewing or extending
the contract asked the party to enter into a new contract in which higher
rates were quoted. Supreme Court held that the doctrine could not be
invoked to prevent the state from earning higher revenue.
Food Corporation of India vs. Kamadhenu Cattle Feed
Industries93: The Food Corporation of India called for tenders for sale
of stocks of damaged food grains. The respondent was the highest
bidder. All the parties who had given tenders were called for
negotiation. While al others raised their offers, the respondent did not.
When the tender was passed to the highest quoter, the respondent
challenged the grant on the basis of legitimate expectation which he
had, being the highest bidder. The High Court accepted his contention
and quashed the grant. Supreme Court while reversing the decision held
that through the respondent was the highest bidder, he had no right to
have it accepted. If the Food Corporation believes that the highest bid
is not adequate, it may reject it.
Madras City wine Merchants’ Association vs. Tamil Nadu94: Rules
relating to renewal of liquor licenses were statutorily altered by
repealing existing rules. It was held that legislative action cannot be
prevented by applying the doctrine of legitimate expectation.

92
1972 AIR 2215
93
(1993) 1. S.C.C. 71
94
(1994) 5 SCC 509

47
National Building Construction Co. vs. S. Raghunathan95: It was
held that the concept of ‘detriment’ is applicable to the doctrine of
legitimate expectation. Therefore, it held that for its application there
are two requirements:
1. reliance on representation
2. resultant detriment.
The court observed that though the government has the power to change
its policy in the public interest, still the courts can look into the
proportionality of change in policy and see whether the legitimate
interest has been properly balanced against the need for change. But the
courts cannot not transgress the Wednesubury principal Courts cannot
look into the merits of the policy. Hence, unless the change of policy is
so outrageous that no sensible person who had applied his mind to the
question to be decided could have arrived at it, Court will not interfere
because flexibility necessarily inherent in this principle must not be
sacrificed on the altar of legal certainty.
It is held in Attorney General for New South Wales vs. Quin 96that
doctrine of legitimate expectation gives rise to procedural rights only
and not to substantive rights.
But Supreme Court of India in Punjab Communications Ltd. vs.
Union of India has held that the legitimate expectations may be both
procedural as well as substantive. The procedural part of the
expectations is that a hearing or any other appropriate procedure will
be followed before the change is made. The substantive part is that the
benefit of a substantive nature will be granted or will be continued.

DOCTRINE OF PUBLIC ACCOUNTABILITY

Accountability simply means that if a public officer abuses his office,
either by an act of omission or commission, and in consequence of that
there is an injury to an individual or the public at large, he must be held
responsible for it.

95
(1998) 7 SCC 66
96
[1990] HCA 21

48
Once a top bureaucrat casually remarked that the main problems of the
administration in India are:
1. Faulty planning,
2. corrupt execution and
3. absence of public accountability.
No one would perhaps disagree with this statement. Out of these three
problems, public accountability is basic, in the sense that if the guilty
are punished quickly and adequately, it will take care of the other two
problems. Unfortunately, today the procedures of accountability are
either non-existent or are very feeble and fragile, besides being dilatory,
and any person with sufficient money power or personal connections
can bend them in any manner he likes.
In the name of enforcing liability, what one sees is merely shadow-
boxing. The manner in which the Central Vigilance Commission
Ordinance pulled down the directives of the apex court is a pointer in
that direction. It is for this reason alone that the Lok Pal Bill has failed
in its every attempt since 1968 to see the light of the day.
The basic purpose of the doctrine of public accountability is to check
the growing misuse of power by the administration and to provide
speedy relief to the victims of such exercise of power. The doctrine is
based on the premise that the power in the hands of administrative
authorities is a public trust which must be exercised in the best interest
of the people. Therefore, the trustee (public servant) who enriches
himself by misusing his office must hold the property/benefit acquired
by him as a constructive trustee.
The celebrated decision of the Privy Council in the A.G. of Hong Kong
V. Reid97 case has greatly widened the scope of this principle. In this
case, the respondent, Reid, who was a Crown prosecutor in Hong Kong,
took bribes as an inducement to suppress certain criminal prosecutions,
and acquired properties in New Zealand in his name, in the name of his
wife and his solicitor. The administration of Hong Kong claimed these
properties on the ground that the owners thereof are constructive

97
[1993] UKPC 2

49
trustees for the Crown. The Privy Council upheld the claim. It observed
that if the theory of constructive trust is not applied and properties
attached when available, the danger is that properties may be sold and
proceeds whisked away to some ‘numbered bank account’. It further
observed that one can understand the immorality of the bankers who
maintained numbered bank accounts but it is difficult to understand the
amorality of the governments and their laws which sanction such
practices — in effect encouraging them.
Judicial response in India is based on this concept of trust and equity
which was developed in Reid’s case. Thus, while deciding the
constitutionality of clause (c) of Section 3 (1) of the Smugglers and
Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976
(SAFEMA), which provided for the forfeiture of properties earned by
smuggling or other illegal activities whether standing in his name or
other parties, the apex court took recourse to the principle of trust and
equity.
The Supreme Court in D.D.A. V. Skipper Construction Co.98, not
only further followed the above principle but enlarged its scope by
stating that even if there was no fiduciary relationship or no holder of
public office was involved, if it is found that someone has acquired
properties by defrauding the people, and if it is found that the persons
defrauded should be restored to the position in which they would have
been but for the said fraud, the court can go ahead with the necessary
orders.
Thus, the concept of public accountability was extended to the private
sector which is very relevant in this age of privatisation and
globalisation of economy.
Moving swiftly in the direction of enforcing accountability, the apex
court in another pace-setting judgement (JMM bribery case99) held
that members of Parliament and legislative assemblies are public
servants under the Prevention of Corruption Act. The Court further
observed that these members cannot also claim exemption from
prosecution under Article 105(2) of the Constitution regarding

98
1996 AIR 2005
99
P.V. Narsimha Rao vs State (CBI/SPE), (1998) 4 SCC 626.

50
protection of privileges of M.Ps and M.L.As for any offence committed
outside Parliament/legislature. The Court held that Article 105(2) could
not be interpreted as a charter of freedom of speech and also freedom
for corruption. Parliamentary privilege cannot provide immunity
against corruption and bribery. Thus, by redefining the role of the state,
fixing accountability at all levels and transparency in the
administration, the court is simply trying to make government function
better in the interest of the people. It is unfortunate if it is being
considered by the government as interference in its area of operation.
In the present-day context, strengthening of the public accountability
system should be the top priority of the government. Any system has
three components: structures and procedures; persons who manage the
system; and environment in which the system works. Improvement is
required in all the three components. Every holder of public power,
where public element is present, should consider himself a trustee of
society and must exhibit honesty, integrity, sincerity, faithfulness and
transparency in all facets of public administration.

DOCTRINE OF PROPORTIONALITY
The order of an authority which is by the way of punishment should be
proportionate to the wrong committed by the person. If it is excessive,
it is called disproportionate and is liable to be struck down.
Hind Construction vs. Workmen100: The workmen demanded a
holiday which was refused by the management. All the workmen
remained absent on the day treating it as a holiday. The management
dismissed all of them. It was held that the punishment was
disproportionate to the wrong committed.
Ranjit Thakur vs. Union of India101: The petitioner who was in army
was sentenced to rigorous imprisonment and was dismissed from
service by court martial for insubordination as he refused to eat the food
offered to him. The order was struck down was disproportionate to the
wrong committed.

100
1965 AIR 917
101
1987 AIR 2386

51
Union of India vs. Parma Nanda102: Bogus identification card and
false pay bills.

PROCEDURAL ASPECTS
DOCTRINE OF STANDING
It is a basic principle of law that to approach a Court for relief, a person
must have a cause of action. A person has a cause of action if his rights
are violated. If a person’s rights are not violated, he cannot approach a
Court of law. One cannot approach a Court of law seeking redressal for
the violation of some other person’s rights, however close that person
may be to him. Thus, husband cannot approach a Court of law seeking
relief for his wife. Husband approaching a Court under a power of
attorney from his wife is a different case. Here, the husband is not
approaching the Court on his own behalf, but as an agent of his wife.
Act of the agent being act of the principal, this case will be deemed to
be instituted by the wife herself, whose rights are violated. Hence there
is no breach of the rule of locus standi.
Another basic principle of law is that Courts do not pass orders or
judgements either against or in favour of a person who is not a party to
the case. Therefore, a person who has a claim has to be a party to the
case. If some other person institutes the case, the Courts cannot
entertain the same. This gives rise to the doctrine of locus standi.
Locus Standi
Ubi jus ibi remedium (where there is a right there is a remedy), means
where there is a violation of a right there is a remedy. Hence a person
whose rights are violated can sue the person who has violated his right.
Conversely, a person whose rights are not violated cannot sue. In other
words, only the aggrieved person103 can sue. This is called the rule of
102
AIR 1989 SC 1185
103
Generally an ‘aggrieved person’ means a person whose rights are violated. But here, for the
application of rule of locus standi, it means a person who alleges that his rights are violated.
Because, whether a person has locus standi to institute the case has to be determined at the
early stage of the case, and whether there is violation of his rights is determined at that last
stage. If the court holds that his rights are violated, that ends the case itself. Therefore, here by
‘aggrieved person’ we mean that the person is alleging that his own rights and not the rights of
some other person are violated.

52
locus standi. Literally, locus means place and standi means to stand.
Therefore, locus standi literally means place to stand in the court, i.e.,
right to sue.
For getting a right to sue, a person must show fulfilment of three
requirements:
1. Injury: That there is a violation of his right.
2. Causation: The violation is caused by defendant’s wrongful act
or omission.
3. Redressability: That violation has a remedy in the law, and that
remedy is not illusory.
Exceptions to the Rule of Locus Standi
1. Criminal cases
2. Environmental cases
3. Habeas corpus
4. Public Interest Litigation
Class Actions
A class action is one which is a case instituted by one or a few on behalf
of all who are aggrieved.
There are two important class actions available under the Indian law.
1. Representative suit under Order I, Rule 8 of Code of Civil
Procedure, 1908
2. Public Interest Litigation (PIL also called SAL - Social Action
Litigation)
Public Interest Litigation
Recent decisions in all countries where the Anglo-American system of
justice has been adopted have taken the view that where State action
has caused injury to the general public as distinguished from particular
individuals, it would be the duty of the State, under a democratic
system, to afford relief against maladministration, in litigation brought
by any member of the public, without insisting that the petitioner must
be one who has been particularly affected by the public wrong in
question.

53
But that does not mean that in all cases of PIL the petitioner need not
have any relation to the relief. The only difference between normal
litigation and PIL in this respect is that, in normal litigation, there
should be a clear and specific allegation that the party’s right has been
violated. In PIL this may be stated in general. Therefore, we have
different ‘standings’ for initiating a PIL. These are:
1. Class standing
2. Public injuries standing
3. Public duties standing
4. Public concern standing
Only the last one may be said to be an exception to the rule of locus
standi.
1. Class Standing: A person may challenge an action when he has
a right common with others. Thus, in Kalyan Singh v. State of
Punjab104 a tax-payer was held to have locus standi to prevent
misapplication or misappropriation of public funds by an
authority. He need not show how the State act affect him
personally, as is required in a normal litigation, but it is enough
for him to show how the State act affects him as a member of a
class, for example, tax payers in this case.
2. Public Injuries Standing: There may be cases where the State
may act in violation of a Constitutional or statutory obligation or
fail to carry out such obligation resulting in injury to public
interest or what may conveniently be termed as public injury as
distinguished from private injury. If no one can maintain an
action for redress of such public wrong or public injury, it would
be disastrous for the rule of law, for it would be open to the State
or public authority to act with impurity beyond the scope of its
power or in breach of public duty owed by it. The party, here
also, need not show how he is affected by the State act, but being
a member of public, itself is enough to enable him to initiate
proceedings.
3. Public Duties Standing: Where the State has failed to discharge
a mandatory duty towards the public, every member of the public

104
Available at, https://indiankanoon.org/doc/36207384/.

54
 is aggrieved by the failure, and has locus standi to initiate the
proceedings.
4. Public Concern Standing: This is the real exception to the rule
of locus standi. Often, where there is a lapse in functioning of the
State, the very officers who have caused that lapse have the locus
standi to bring action. For example, if case of illegal felling of
trees or poaching of animals in a forest, the forest officers who
have colluded in that are the persons who can prosecute the
culprits. But, as the officers are also involved in the acts, they
will not prosecute the culprits. Hence, the Courts have to allow
people who have public spirit to allow to initiate the proceedings.
Otherwise, such cases will not go to Courts at all. Similarly, in
many cases due to illiteracy, poverty or lack of liberty, an
aggrieved person may not be able to approach the Court. In such
cases also Courts allow a third person who has no legal interest
at all in the case.

DOCTRINE OF RES JUDICATA

Res means thing and judicata means adjudicated. Res judicata means
thing adjudicated. According to the doctrine of res judicata a case once
decided finally cannot be reagitated before the same or different Court.
The rule of res judicata is based on considerations of public policy as it
is in the larger interest of the society that a finality should attach to
binding decisions of courts of competent jurisdiction, and that
individuals should not be made to face the same kind of litigation twice.
It also seeks to avoid multiplicity of proceedings.
In Sharma v. Krishna Sinha105 the Supreme Court imposed a
significant restriction on the invocation of its jurisdiction under Art. 32
by applying the doctrine of res judicata. An order assessing the tax
having been challenged once through a writ petition, it cannot be
challenged again through another writ petition even if the petitioner
seeks to urge new grounds against the order.

105
1959 AIR 395

55
Similarly, if a writ petition filed under Article 226 is considered on
merits and dismissed, the decision so pronounced would continue to
bind the parties. It would not be open to a party to ignore the said
judgement and again move the High Court under Article 226 or the
Supreme Court under Article 32 on the same facts and for obtaining the
same or similar orders or writs.
This means that in case of infringement of fundamental rights, the
aggrieved person has liberty to approach High Court or Supreme Court,
but once the option is exercised and his case is decided by the Court, he
cannot approach the other Court in case of adverse order. The High
Court's decision can be attacked in an appeal to the Supreme Court but
not through a writ petition.
Res judicata does not apply if orders sought to be challenged through
successive writ petitions are different. This, in Amalgamated
Coalfields v. Janapada Sabha, Chhindwara106, where a petition
challenging the validity of the tax assessment for one year is dismissed
by the Supreme Court, a similar order passed for the subsequent year
can be challenged through a new writ petition on some new grounds
not raised earlier in the first writ petition.
For the application the following requirements must be satisfied.
1. The case must have been decided by a Court of competent
jurisdiction.
2. The case must have been decided finally. Doctrine of res judicate
is not applicable to interlocutory orders.
3. The decision must be on merits. Orders on technicalities do not
attract doctrine of res judicata.
4. Issues involved in both cases must be same or substantially same.
5. Parties in both the cases must be litigating under the same title.
Constructive res judicata: Where an issue which could and ought to
have been raised in the earlier case, but was not raised by the parties, is
raised in a subsequent case, still the matter is barred by res judicata. As
some issues in the subsequent case were not raised in the earlier case,
it is called constructive, as against actual, res judicata.

106
1961 AIR 964

56
Doctrine of res judicata is a doctrine of civil law. Double jeopardy is
the corresponding principle of criminal law. Where a person is
convicted or acquitted by a competent Court for some offence, he
cannot be prosecuted for the same offence again1. Therefore, if a person
is neither convicted nor acquitted of any offence, he may be tried or he
may be permitted to try the case again.
In Lallubhai v. Union of India107, Supreme Court has held these
principles of public policy are entirely inapplicable to illegal detention
and do not bar a subsequent petition for a writ of habeas corpus under
Art. 32 on fresh grounds not taken in the earlier petition for the same
relief. Thus, when a writ petition challenging an order of detention is
dismissed by the Court, a second petition can be filed on fresh,
additional grounds to challenge the legality of the continued detention
of the detenu, and the subsequent petition is not barred by res judicata.
Thus, doctrine of res judicata is not applicable to habeas corpus. This is
because the courts attach great value to the right of personal freedom of
a person. A person who unsuccessfully prosecutes a Writ Petition in the
High Court may approach the Supreme Court by way of a fresh Writ
Petition, or at his option, by way of an appeal.
However, some new grounds must be raised in the subsequent petition.
If in the fresh Writ Petition the judgement of the High Court is
challenged, the Writ Petition will take colour of Appeal and hence not
maintainable as Writ Petition.
English as well as American Courts have also laid down that the
principle of res judicata is not applicable to a writ of habeas corpus.
However, successive applications of habeas corpus cannot be filed in
the same High Court.
When a writ petition is withdrawn as infructuous, and the court allows
the withdrawal by mentioning futility as ground, a second petition will
be barred by res judicata. This fate can be avoided if the court gives
permission to withdraw the petition with liberty to file a fresh petition
in respect of the same subject matter. Where the Court is silent, there
was a conflict of opinion amongst the High Courts whether res judicata
107
AIR 1981 SC 728

57
will apply. The Rajasthan, Punjab and Haryana and Gujarat High
Courts have held that res judicata applies in such a case, while the
Bombay and Patna High Courts have taken a different position.
The matter has now been resolved by the Supreme Court decision in
Surguja Transport Service v. S.T.A. Tribunal, Gwalior108. The
Court has ruled that when a writ petition filed under Art. 226 is
withdrawn without seeking permission of the court to file a fresh
petition, then the remedy under Art. 226 should be deemed to have been
abandoned by the petitioner in respect of the cause of action, and fresh
petition cannot be instituted in respect of the same matter in the High
Court.
JURISDICTION
Jurisdiction of Supreme Court under arts. 32 and 136
Supreme Court of India is constituted as a protector, defender and
guarantor of fundamental rights of the people. Under this provision,
“the Supreme Court shall have power to issue directions or orders or
writs including writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari, whichever may be appropriate,
for the enforcement of rights conferred by Part III of the Constitution.”
Art. 32(1) guarantees a right to move the Supreme Court for the
enforcement of fundamental rights, which right by itself is a
fundamental right. It provides a guaranteed, quick and summary
remedy for enforcing fundamental rights. A person alleging violation
of fundamental rights can approach the Supreme Court directly, without
having to undergo a delatory process of having to go from the lowest to
the highest Court which is the case in other matters.
Under art. 32 Supreme Court enjoys a broad discretion in the matter of
framing the writs to suit the exigencies of the particular case and it
would not throw out the application of the petitioner simply on the
ground that the proper writ or direction has not been prayed for. Both
Supreme Court and High Court have the power to modify the prayer in
the petition and grant the most appropriate and useful remedy. This is

108
1987 AIR 88

58
because, being higher judiciary, they are Courts of justice and have to
do justice in the matter before them.
Jurisdiction of High Courts under arts. 226 and 227
Under art. 32 of the Constitution, the Supreme Court is empowered to
issue a writ in case of breach of fundamental rights and under Art. 226,
High Court may issue a writ for the breach of fundamental rights and
other rights. Thus, the jurisdiction of the High Court is wider than the
jurisdiction of Supreme Court. Art. 32 itself being a fundamental right,
the Supreme Court cannot reject writ petition when breach of
fundamental rights is involved. But, the power of High Court under Art.
226 is discretionary. The High Court may reject a writ petition on two
grounds:
1. When there is delay and latches
2. When there is an equally efficacious alternative remedy

VIOLATION OF PROCEDURAL NORMS

GROUNDS OF JUDICIAL REVIEW

There is no general agreement on how to classify the grounds of review
and different textbooks take different approaches. The grounds
themselves are broad, vague and overlapping. We may follow Lord
Diplock’s classification in CCSU v. Minister for the Civil Service109:
1. Illegality
2. Irrationality
3. Procedural Impropriety
The Diplock categories tell us little in themselves and do not avoid
overlaps. Indeed, in Boddington vs. British Transport Police110, the
House of Lords has emphasised that the heads of challenge are not
watertight compartments but run together.

109
[1984] UKHL 9
110
[1998] UKHL 13

59
These grounds are discussed in detail in different parts of these study
materials. Here, a brief account is given to recapitulate memory.
ILLEGALITY
Ultra vires: A decision is ultra vires if it is outside the language of the
statute. In the case of courts and judicial tribunals the terminology of
‘lack’ or ‘excess’ of jurisdiction means the same as ultra vires although
a distinction is sometimes made between lacking jurisdiction at the
outset and straying outside jurisdiction by some subsequent defect. In
most cases, however, this distinction does not matter.
Errors of Law: The question whether the court can review decisions
on the ground of legal or factual errors has caused problems. There
seems to be a clash of principle. On the one hand, if the court can
intervene merely because it considers that a decision is wrong it would
be trespassing into the merits of the case. On the other hand, the rule of
law surely calls for a remedy if a decision maker misunderstands the
law. After many years of groping towards an accommodation the courts
have adopted a compromise. The outcome appears to be that almost all
errors of law and some errors of fact can be challenged.
A rationale which was popular in the nineteenth century is the doctrine
of the ‘jurisdictional’ or ‘collateral’ or ‘preliminary’ question.
According to this doctrine, if a mistake relates to a state of affairs which
the court thinks that Parliament intended should exist objectively before
the official has power to make the decision, then the court will interfere
on the ground that the authority has acted ultra vires if the court thinks
that the required state of affairs does not exist.
A second device which flourished during the 1960s but has largely been
superseded is the doctrine of ‘error of law on the face of the record’ or
patent error. This allows the court to quash a decision if a mistake of
law can be discovered by reading the written record of the decision
without using other evidence.
Errors of fact are not normally reviewable but there are exceptions.
IRRATIONALITY AND UNREASONABLENESS

60
Irrationality or unreasonableness can be used to challenge the exercise
of discretion or findings of law and fact. The notion of
‘unreasonableness’ is so vague that it seems to invite the court to
impose its own opinion of the merits for that of the decision maker.
However, it has a special and limited meaning. This ground of review
is usually called ‘Wednesbury unreasonableness’ after Lord Greene’s
speech in Associated Provincial Picture Houses Ltd v.
Wednesbury Corporation111. Lord Greene MR emphasised that the
court will interfere only where a decision is so unreasonable that no
reasonable authority could have made it, not merely because they
think it is a bad decision.
Another way of putting it is that the decision must be ‘beyond the
range of responses open to a reasonable decision maker’. This is
sometimes equated with ‘perversity’ or ‘irrationality’.
PROCEDURAL IMPROPRIETY
Failure to comply with a procedural requirement laid down by 386
General Principles of Constitutional and Administrative Law statute
(such as time limits, consultation or giving required information or
notice) could make a decision invalid.
However, the courts are reluctant to set aside a decision on purely
technical grounds. Traditionally the courts have tried to rationalise
this by distinguishing between ‘mandatory’ (important) and
‘directory’ (unimportant) procedural requirements by reference to the
language of the governing statute.
Recently they have abandoned this approach in favour of a flexible
response to the particular context. Using their discretionary power to
withhold a remedy, the courts will set a decision aside for procedural
irregularity only if the harm or injustice caused to the applicant by the
procedural flaw outweighs the inconvenience to the government or to
innocent third parties in setting the decision aside.
However, the courts may not be willing to allow administrative
efficiency to override a statutory right of the public to be consulted.

111
1 KB 223

61
WRITS
Under art. 32 of the Constitution, the Supreme Court is empowered to
issue a writ in case of breach of fundamental rights and under Art.
226, High Court may issue a writ for the breach of fundamental rights
and other rights. Thus, the jurisdiction of the High Court is wider than
the jurisdiction of Supreme Court. Art. 32 itself being a fundamental
right, the Supreme Court cannot reject writ petition when breach of
fundamental rights is involved. But, the power of High Court under
Art. 226 is discretionary. The High Court may reject a writ petition on
two grounds:
(1) When there is delay and latches
(2) When there is an equally efficacious alternative remedy
Delay and Latches: The Court may refuse remedy if there is
unreasonable delay in invoking the jurisdiction of the court. Unlike in
limitation there is no fixed period for latches. Every case will be
determined on its own fact and circumstances and therefore, the court
has to give reason for declining the remedy or the grounds of delay
and latches. If the limitation has expired normally the court will
decline to give remedy because what cannot be granted in the exercise
of ordinary powers cannot be granted in the exercise of extra-ordinary
powers. But that does not mean that the High Court is bound by the
limitation. Even if the case is within limitation, the High Court may
decline to grant relief because the extra-ordinary remedy is
discretionary.
Alternative Remedy: If there is violation of fundamental rights, the
court cannot refuse relief on the ground of alternative remedy. But if a
writ petition is filed for any other purpose before the High Court, the
High Court may decline the relief on the grounds of equally
efficacious alternative remedy. An equally efficacious remedy means
a remedy, which can give the same relief to the party as may be given
by the High Court through the writ. Therefore, the courts may grant
the remedy by a writ where:
a. the alternative remedy is not adequate,

62
 b. when the alternative remedy was lost without any fault
on the part of the person,
c. when the alternative remedy is illusionary, or
d. when the alternative remedy involves delay.
Even where there is an alternative remedy, in all cases of absence of
jurisdiction or abuse of jurisdiction, the court may exercise
jurisdiction even where there is an alternative remedy.
42nd amendment to the constitution had absolutely bound the
jurisdiction of High Courts where there is an alternative remedy
except in case of violation of fundamental rights. But, the 44th
amendment to the constitution has removed this factor. Therefore,
now the High Courts can exercise the discretion and admit the writ
petition even where alternative remedy is available.
High Court and Supreme Court can grant five types of writs: Habeas
corpus., mandamus, prohibition, certiorari and quo warranto.

1. HABEAS CORPUS
Habeas corpus literally means you must have the body i.e., the
person must be produced before the court. Where a person is
illegally detained by another, the court issues this writ to the
person who has detained the other to come to the court with that
person and explain the legal basis on which he has detained that
person. This writ is sued in various cases:
a. for testing the regularity of detention under preventive
detention laws
b. for securing the custody of minor or insane person
c. for securing the custody of spouse
d. for testing the regularity of detention for breach of
privilege by the legislature
e. for testing the regularity of detention under court marshal
f. for testing the regularity of detention by executive during
emergency.

63
In order to maintain the writ of Habeas corpus the physical detention
of the person is not necessary. Some kind of control, custody or
restrain exercised on the person may be sufficient to exercise this writ.
In Kanu Sanyal vs District Magistrate112, the court has held that in
case of public interest it is not necessary to produce the person before
the court. Therefore, though habeas corpus literally means producing
the person before the court, where taking the person before the court
may adversely affect the law-and-order situation it is no necessary to
produce him before the court.
As in writ of habeas corpus, the question of personal liberty of a
person is involved which is very valuable, the Supreme Court has
made several relaxations in case of writ of habeas Corpus. They are:
I. In Ichhudevi vs Union of India113, Supreme court held that in
case of writ of High Court, the court does not as a matter of
practice follow the strict rules of pleading nor does it place
undue emphasis on the strict rule of observance of burden of
proof. Even a post card may be sufficient to invoke the
jurisdiction of the court.
II. Rule of locus standi: is also not applicable to a writ of habeas
corpus. Any person may file a writ petition on behalf of the
detenu.
III. Res Judicata is not applicable to the writ of habeas corpus.
Therefore, even though the High Court has rejected the writ
petition, the Supreme Court will entertain a fresh petition on the
same ground.
IV. All the writs can be sought only against the state whereas the
writ of habeas corpus is available even against a private person.

2. WRIT OF MANDAMUS
Mandamus is a judicial remedy issued in the form of an order to
any constitutional statutory or non-statutory agency to do or to
forbear from doing some act which the agency is obliged to do

112
1974 AIR 510
113
1980 AIR 1983

64
 or refrain from doing under the law. The following are the
conditions for the grant of mandamus:
1. There must be a public or common law duty. A public
duty means a duty, which is imposed by law. A duty
imposed by a contract is a private duty. Therefore, a writ
was not held to lie to enforce a contractual duty. In
Guruswamy vs. State of Mysore114, the court refused to
enforce a contractual duty by issuing a writ of
mandamus.
But in Lotus Hotel vs. GSFC 115(Gujarat State Financial
Corporation), the Supreme Court decided the contract
under two heads – First category of contracts is that of
Statutory Contracts which are entered into the exercise of
a statutory duty. Therefore, they have got a colour of
statutory duty though the duty is under a contract as well.
Thus, where a statutory body established to advance
loans enters into a contract for the purpose of giving
loans it is not only entering into a contract but also is
discharging its statutory duty. Therefore, a breach of that
contract is also a breach of its statutory duty. Hence,
mandamus may be issued to enforce that duty. But other
contracts are independent contracts and their breach does
not entail breach of any statutory duty. Therefore, writ of
mandamus does not lie for enforcement of such contracts.
2. The duty must be absolute duty i.e., it should not be
discretionary duty. When the authority has discretion, in
exercising the duty that discretion used to be exercised by
the authority and the court cannot exercise the discretion
on behalf of that authority. The court may issue a writ of
mandamus ordering the authority to exercise the
discretion but it will not order the authority to exercise
the discretion in one way or other. Thus, where the
authority has discretion to decide the matter but it will
not tell the authority as to in whose favour the decision
should be.
114
[1971] 27 STC 591 (KAR)
115
AIR 1983 SC 848

65
 3. There must be specific demand and refusal. In many
cases, the duty of the authority arises only when there is a
specific demand from the person and therefore, unless
there is no demand the duty does not arise Further, the
breach of duty arises when the demand is refused. Unless
there is a refusal there is no breach of duty. Therefore,
writ of mandamus does not lie unless there is a demand
and refusal. But the refusal need not be expressed refusal.
Unreasonable delay in complying with the demand itself
is a refusal.
Naubat Rai vs. Union of India116: the petition was
illegally dismissed from military. The Court refused to
issue mandamus for his reinstatement because he did not
at any point of time apply to the authority for
reinstatement.
In Venugopal vs. Commissioner, Vijayawada
Municipality117: the petitioner had filed a suit against the
respondent. This was treated as a demand and refusal by
the court and the court granted mandamus.
4. There must be a clear right to enforce the duty.
Before, applying for writ of mandamus, the petitioner
must show some right to enforce the duty.
SP Manocha vs State of M.P118.: Court refused to issue
mandamus to the college to admit the petitioner because
the petitioner could not show a clear right to be admitted
to the college.
5. The right to enforce the duty should subsist till the
date of petition. If the right has been lawfully terminated
before filing the petition the writ does not lie.
6. The right to enforce the duty should belong to the
petitioner. A shareholder eg., cannot enforce the right of
company unless he can show that the infringement of the
corporation’s right has resulted in the infringement of his
own right.

116
AIR 1953 P H 137
117
1964 AIR 33
118
AIR 1973 MP 84

66
Writ of Mandamus compared with Injunction

Though mandamus is a public law remedy and injunction is a

private law remedy, there are many things common to both.
1. Both may be issued to compel an authority to do or prevent
an authority from doing an act.
2. Both are not ordinary legal remedies. Injunction is an
equitable relief while mandamus is an extra-ordinary
remedy.
3. In both cases relief is not granted if there is an alternative
remedy.

Mandamus has certain advantages over injunction.

1. Mandamus being a constitutional remedy, is better than
injunction which is an ordinary remedy.
2. Mandamus being a constitutional remedy cannot be barred
by a statutory provision. Injunction can be.
3. Sec. 80 CPC is not applicable to mandamus. It is applicable
to injunction, though in cases of urgency the court has a
power to dispense with the same.
4. Mandamus is comparatively speedier remedy than
injunction.
On the other hand, injunction has some advantages over
mandamus.
1. Injunction is a remedy which is available at local courts.
Mandamus may be issued only by High Courts or the
Supreme Court.
2. In case of injunction compensation may also be sought,
compensation cannot be issued with mandamus.
3. In a suit for injunction oral evidence may be lead which
gives the plaintiff a better chance to prove his case. In case
of mandamus evidence is lead through affidavits only.

67
 3. WRIT OF CERTIORARI AND WRIT OF PROHIBITION
Both the writs are similar in the sense that they can be issued on
the similar grounds. But they are different in the sense that the
point of time at which they can be granted will be different.
These writs lie, where the action of the authority is without
jurisdiction.
Prohibition can be issued to prohibit the authorities from
proceeding in the matter without jurisdiction while certiorari
can be issued to quash the act of the authority done without
jurisdiction. The following are the grounds for the issue of these
writs:
I. Lack of Jurisdiction: Lack of jurisdiction refers to the
jurisdiction where the authority has no jurisdictional
power at all to take action. This situation may arise if:
a) the authority is improperly constituted
b) the authority exercises jurisdiction in a case in
which he has no jurisdiction at all by committing
an error in its decision or jurisdictional facts.
c) the authority is incompetent to take action in
respect of a locality, party, or subject matter.
d) the law which is given the jurisdiction is itself
unconstitutional.
e) the preliminary essentials have been disregarded.
E.g. Omission to serve notice as required by law.
II. Excess of Jurisdiction: In this case the authority may
have jurisdiction but it exceeds the permitted limits. In J.
K. Choudhari vs. Datta Gupta119 the governing body
which had then power of dismissal in case of teachers,
dismissed the principal. Court held that this is an excess
of jurisdiction.
III. Abuse of Jurisdiction: Even where the authority has a
jurisdiction, if it does not exercise properly, it amounts to
abuse of jurisdiction. Exercising the jurisdiction for mala
fide purposes, for the improper purpose on an extraneous
consideration or irrelevant consideration, by ignoring

119
1958 AIR 722

68
 related considerations etc. amounts to abuse of
jurisdiction.
IV. Violation of Natural Justice: There are two rules of
natural justice:
1. Rule against bias which is based on the maxim “Nemo
judex in causa sua” (No one can be a judge in his own
case).
2. Rule of fair hearing which is based on another maxim
“Audi alteram partem” i.e., here the other side.
V. Error apparent on the face of record: When the
authority has come to the conclusion by committing an
error which is apparent on the face of the order, the court
may show certiorari to quash that order.
VI. Fraud: If the order of the authority is obtained by fraud,
that order may be quashed by issue of certiorari.
Certiorarised Mandamus
In a case of writ of certiorari, often the courts are required to
issue mandamus also. For example, where the decision is in
violation of natural justice, the Court may issue a writ of
certiorari to quash the order and also issue mandamus ordering
the authority to hold fresh enquiry and give a decision by
following the norms of natural justice within the time allowed
by the court. Such orders are called certiorarised mandamus.

4. WRIT OF QUO WARRANTO

Quo Warranto means, by what authority. It is an order issued by
the Supreme Court or High Court by which any person who
occupies an independent public office is asked to show his
authority to occupy the Office. Following are the conditions for
issuing this writ:
I. The office must be a public office: An office is a public
office if it is created by the constitution or by a statute
and its duties are such that the public should be interested
in that.

69
 II. It must be substantive in nature. A substantive office is
one, which is permanent in character, and is not
terminable in character at the will of the superior.
Though public offices are held at the pleasure of the
president or governor there is a safeguard against the use
of power by the president or governor because if it is
permanent in character writ of quo warranto lies.
III. The person must have occupied the office. Just because
the person is appointed or elected to the office, the writ
does not take effect unless the officer has accepted the
appointment or election.
IV. There must be contravention of law: If the appointment
is in contravention of law, only then this writ lies. If there
is only, an irregularity, quo warranto does not lie.

PRIVATE LAW REVIEW

As seen above, judicial review of administrative actions is done in two
ways – public law review and private law review. Public law review is
done through writ jurisdiction of the higher judiciary, whereas private
law review is done through the ordinary jurisdiction of the subordinate
judiciary.
In case of public law review, the State is acting as State and has duties
towards the public at large. In case of private law review, the position
of the State is no better than that of an individual, and the same laws
are applicable to the State as a private individual, attaching same
rights and liabilities attachable to private individuals.
Thus, if the State enters into contract with an individual, Indian
Contract Act is applicable. Though art. 299 prescribes certain
procedure to make government contracts, the other aspects of the
contract have to be in accordance with the provisions of the Indian
Contract Act. If the government violates the contract the contract may
be enforced under the Contract Act in the same manner as it is
enforced against an individual.
Similarly, where a government servant commits a tort in the course of
his employment government incurs vicarious liability and is liable to

70
the aggrieved person under the law of torts in the same way as an
individual.
Though there is no difference between an individual and the State in
such proceedings, keeping in mind the peculiar position of the
government, there are certain special privileges available to the
government is suits against it. Longer periods of limitation in some
cases, privilege of notice under sec. 80 of the Code of Civil
Procedure, privilege to withhold documents, are a few instances. It
should be remembered that these special privileges are available to
government not for its protection, but for the protection of the people.
The most important statutory remedies available against state, as in
case of individuals, are injunction, declaration and damages.
Though, in India there is no distinction of statutory and equitable
remedies, and all remedies are statutory remedies, injunctions and
declarations are said to be equitable remedies, which means that the
origin of the statutory provision relating to them lies in the
judgements of Courts of equity in England rather than in the
judgements of Courts of law. The implication of saying so is that the
fundamental rule of equity ‘to seek equity one must do equity’ is
applicable to the grant of these remedies. Where the conduct of the
plaintiff in case of a suit for declaration or injunction and applicant in
case of an application for temporary injunction, is not clean, he is not
entitled to these remedies.
INJUNCTION
An injunction is an order of the court directed at a defendant or
respondent, to do or not to do a particular act. If the order is to do
some act the injunction is called mandatory injunction while if the
order is to abstain from doing an act it is called preventive injunction
or prohibitory injunction. In Courts terms permanent injunction or
perpetual injunction are more popular to refer to preventive
injunction.
An injunction may be refused, inter alia, when the conduct of the
plaintiff is such as to disentitle him of the assistance of the court [Sec.
41(1), Specific Relief Act.]; or when equally efficacious relief can be
obtained by any other usual mode of proceedings [Section 41(h)

71
SRA]. For example, an injunction will not be issued when damages
would be an adequate remedy to the aggrieved party, as in the case of
breach of conduct.
An injunction may be applied for as a final remedy or as an interim
form of relief, by way of an interlocutory application. In particular, an
interim injunction can be granted to prevent a public body from taking
action, pending the determination of the issue by the court.
Thus, we may classify injunctions as under:
1. Mandatory or Prohibitory injunction, which is a final remedy.
2. Temporary injunction which is an interlocutory remedy.

Mandatory Injunction
Where the Court issues and injunction to the defendant ordering him
thereby to do some act, the order is called mandatory injunction. Thus,
where the defendant who has constructed a structure on plaintiff’s
land illegally, the Court may issue a mandatory injunction in favour of
the plaintiff ordering the defendant to demolish the structure.
Though limitation to institute a suit for mandatory injunction is one
year, it is expected that the plaintiff has to approach the Court at the
earliest opportunity, i.e., as early as possible after he comes to know
of the infringement of his right by the defendant. In other words, the
plaintiffs cannot wait for the defendant to, for example, complete the
construction and then seek the demolition. He has to approach the
Court at the earliest opportunity and prevent wastage. This means that
if the suit is barred by limitation suit cannot be entertained, but even
where the suit is within the period of limitation if there is unnecessary
delay in instituting the suit, the Court may refuse injunction and
explore the possibility of compensation.
Prohibitory Injunction
A prohibitory injunction can be granted, under sec. 37(2) of the
Specific Relief Act, by a decree made after the hearing and upon the
merits of the suit. According to sec. 38(1), Specific Relief Act, a

72
prohibitory injunction may be granted to the plaintiff to prevent the
breach of an obligation existing in his favour whether expressly or by
implication.
Through a prohibitory injunction, the defendant is perpetually
enjoined from assertion of a right, or from the commission of an act,
which would be contrary to the rights of the plaintiff. Ordinarily, an
injunction is not issued to prevent breach of a contract because a
contract is usually not specifically enforceable and damages may be a
sufficient recompense for breach of a contract.
If, however, there exists no standard to ascertain damages caused by
the nonperformance of a contract, or where the act agreed to be done
is such that compensation in money for its non-performance would
not afford adequate relief, an injunction may be granted to prevent its
breach.
When the defendant threatens to invade, or is about to invade the
plaintiffs right to, or enjoyment of any property, the court may grant a
prohibitory injunction, inter alia, where there exists no standard for
ascertaining the actual damage likely to be caused by the invasion, or
where the invasion is such that irreparable loss is likely to be caused
to the plaintiff by the act of the defendant, or where the injunction is
necessary to prevent multiplicity of judicial proceedings. An
irreparable loss is one where compensation in money would not afford
adequate relief.
Temporary Injunction
When a suit for injunction is instituted by plaintiff against the
defendant, the Court will issue notice to the defendant, the defendant
will appear before the Court and file his written statement, the Court
will frame issues, the parties will lead evidence, and after hearing the
arguments on behalf of both the parties the Court will pronounce the
judgement. All this takes often years to happen. Till then if there is no
order of the Court requiring the defendant to maintain status quo, he
can proceed with the infringement, for example, construction of the
building on plaintiff’s land, and even complete the construction before
the Court had an opportunity to pronounce an order of prohibitory
injunction against him. This will defeat the very purpose of the suit.

73
Therefore, in a suit for injunction, the plaintiff may file an application
for temporary injunction. A temporary injunction is provisional in
nature. It continues for a specific period or until further order of the
court; such an injunction does not conclude a right. Its object is to
maintain the status quo until the questions at issue are decided by the
court. It may be granted at any stage of the suit.
Temporary injunction may be granted ex parte, i.e., without hearing
the other side. To get an ex parte temporary injunction, the applicant
has to satisfy the Court about three things:
1. That he has a prima facie case.
2. That the balance of convenience lies in applicant’s favour.
3. That if the injunction is not issued, the applicant will suffer
irreparable loss.
Normally temporary injunction is prohibitory in nature, preventing the
opponent from doing some act. Temporary injunction is not
mandatory in nature, requiring the opponent to do an act. This is
because, once an act is done, the order is discharged, and thereby the
order becomes the final relief. However, in exceptional circumstances
mandatory temporary injunction may be issued. For example, a
construction made by the opponent in breach of a preventive order
may be ordered to be demolished. A student to whom the University
has refused to issue hall ticket may be ordered to be allowed to appear
for examination. The result of the examination may be withheld till
the final order of the Court and may be declared if the final order of
the Court is in favour of the candidate.
Writ of Mandamus Compared with Injunction
Though mandamus is a public law remedy and injunction is a private
law remedy, there are many things common to both.
1. Both may be issued to compel an authority to do or prevent an
authority from doing an act.
2. Both are not ordinary legal remedies. Injunction is an equitable
relief while mandamus is an extra-ordinary remedy.

74
3. In both cases relief is not granted if there is an alternative remedy.

Mandamus has certain advantages over injunction.

1. Mandamus being a constitutional remedy, is better than injunction
which is an ordinary remedy.
2. Mandamus being a constitutional remedy cannot be barred by a
statutory provision. Injunction can be.
3. Sec. 80 CPC is not applicable to mandamus. It is applicable to
injunction, though in cases of urgency the court has a power to
dispense with the same.
4. Mandamus is comparatively speedier remedy than injunction.

On the other hand, injunction has some advantages over mandamus.

1. Injunction is a remedy which is available at local courts. Mandamus
may be issued only by High Courts or the Supreme Court.
2. In case of injunction compensation may also be sought,
compensation cannot be issued with mandamus.
3. In a suit for injunction oral evidence may be lead which gives the
plaintiff a better chance to prove his case. In case of mandamus
evidence is lead through affidavits only.
DECLARATION
A declaration is an order of the court stating the legal position
between two parties, and can be sought to provide some clarification
on a disputed point of law. An order declaration is declaration of some
legal character of the plaintiff, such as that plaintiff is the owner of a
property, or that the plaintiff is a legally wedded wife of the plaintiff,
etc. In other words, it declares that the plaintiff has some right, right
of ownership, right to matrimonial home, etc.
A declaratory order has no coercive force as it does not require
anybody to do anything, and neglecting a declaration will not be a

75
contempt. A declaration differs from an ordinary judgement which
can be enforced through execution proceedings.
Therefore, Courts normally refuse to issue bare declarations. A
fundamental principle of law is that Courts do not pass orders which
are of no use to the party in whose favour the order is passed.
Therefore, along with a prayer for declaration, a consequential remedy
has to be sought. The the suit cannot be, normally, a suit for bare
injunction, but should be a suit for declaration and possession, or
declaration and injunction, etc. Where there is no consequential
remedy available to the plaintiff, bare declaration can be issued.
In England, although a bare declaration has no coercive force, a public
body is most unlikely to ignore the implications of any declaratory
relief granted by, the courts. The declaration is regarded in England as
a particularly flexible remedy as regards the challenging of executive
action. In theory it permits the citizen to question proposed executive
action, rather than wait for it to happen and attempt to have it
quashed.
Thus, a great attraction of declaration is that it is an all-purpose
remedy which can be used in an extraordinarily wide variety of cases.
Two main virtues of a declaratory action are to get relief before
damage is caused, or to escape from dilemma and uncertainty by a
clarification of the legal position.
The purpose of declaration, if the parties take it in the right spirit, is to
avoid future litigation by removing existing causes or controversies,
e.g., where a man is in possession of some property under a title about
which there is some legal doubt, he may obtain a declaration in his
favour to clear his title. Or, where there exists a dispute about the
status of two persons as husband and wife and the legitimacy of the
children, declaration would be an appropriate remedy to clarify the
legal position.
In Bai Shri Vaktuba v. Thakore120, the plantiff-husband filed a suit
for declaration that a two year old boy allegedly born to the defendant
wife was not his son. An objection was taken that the suit was

120
(1907) 9 BOMLR 547

76
premature as no maintenance and rights in the plaintiff's estate were
being claimed against the plaintiff and that the interest of the minor
should not be prejudiced by deciding a question which would arise in
future. The court did not accept the contention as the wife had been
making an open assertion that the boy was plaintiff's son. In the
opinion of the court, the infant's case could be sufficiently placed
before the court by a duly constituted guardian. To hold otherwise
would amount to holding that the plaintiff, openly threatened with the
serious claim, is condemned to inactivity for, it may be 20 or 30 years,
leaving it to the claimant to file his suit at such time as would most
assist him in taking the plaintiff at a disadvantage. Further, questions
of birth and paternity should be determined while the evidence is still
available.

DAMAGES
Where an individual has suffered any loss on account of an act of the
government or any servant of the government, he may claim
compensation or damages, as the case may be, against the
government.
Under sec. 40, Specific Relief Act, a plaintiff in a suit for a perpetual
or mandatory injunction can also claim damages either in addition to,
or in substitution of, such injunction. The court may, in its discretion,
award damages. Therefore, an injunction will not be issued when
damages would be an adequate remedy to the aggrieved party, as in
the case of a breach of contract.
The appropriate forum to recover damages is a civil Court of
competent jurisdiction. There are two important questions involved in
a suit for damages:
1. Is the plaintiff is entitled to damages?
2. If yes, what is the quantum of damages?
To decide both these questions, the Court, in majority of cases, needs
evidence. Therefore, the decision as to damages cannot be, ordinarily,
given in Writ proceedings.

77
However, in the recent past, in order to avoid hardships to the
petitioners and multiplicity of proceedings, courts are, in cases of
constitutional torts, awarding damages to the petitioners. A
constitutional tort is a tort which also involves violation of
fundamental right. This involvement of the fundamental right gives
jurisdiction to the Supreme Court under art. 32 or a High Court under
art. 226.
Nilabati Behera vs. State of Orissa 121is a classic example of cases
of such nature. Petitioner’s son was arrested and kept in police
custody. After two days his dead body was found on railway tracks.
Version of the police was that he tried to escape from the police
custody and was chased by the police to recapture him. In an attempt
to escape, he tried to cross railway lines without noticing the
approaching train, and died in the accident. Petitioner’s version was
that her son was tortured in police custody and due to the intolerable
torture, he died in police custody. To avoid liability, the police threw
his body on railway tracks to show as if there was a railway accident.
Supreme Court ordered inquiry by the District and Sessions judge into
the matter. The inquiry report submitted by the District and Sessions
unequivocally disclosed that the petitioner’s version was true. The
Court awarded damages to the petitioner and held that damages may
be awarded in petitions under art. 32 or art. 226 if the violation
complained of is of fundamental right under art. 21 if the facts are not
disputed or there is incontrovertible evidence to prove the violation.

121
1993 AIR 1960

78
LIMITATION OF JUDICIAL REVIEW OF
ADMINISTRATIVE ACTIONS
Judicial review of administrative action is perhaps the most important
development in the field of public law in the second half of this century.
In India, the doctrine of judicial review is the basic feature of Indian
Constitution. Judicial review is the most potent weapon in the hands of
the judiciary for the maintenance of the rule of law. Judicial review is
the touchstone of the Constitution. The Supreme Court and High Courts
are the ultimate interpreters of the Constitution. It is, therefore, their
duty to find out the extent and limits of the power of coordinate
branches, viz. executive and legislature and to see that they do not
transgress their limits. This is indeed a delicate task assigned to the
judiciary by the Constitution. Judicial review is thus essence of the rule
of law.

The power of judicial review is an integral part of Indian Constitutional

system and without it, there will be no government laws and the rule of
law would become a teasing illusion and a promise of unreality. The
judicial review, therefore, is a basic and essential feature of the
Constitution and it cannot be abrogated without affecting the basic
structure of the Constitution. In judicial review, the court is not
concerned with the merits or correctness of the decision, but with the
manner in which the decision is taken or order is made. A court of law
is not exercising appellate power and it cannot substitute its opinion for
the opinion of the authority deciding the matter.

It is a cardinal principle of Indian Constitution that no one howsoever

highly placed and no authority lofty can claim to be the sole judge of

79
its power under the Constitution. The rule of law requires that the
exercise power by the legislature or buy the judiciary or by the
government or by any other authority must be conditioned by the
Constitution. Judicial review is thus the touchstone and repository of
the supreme law of the land. In recent times, judicial review of
administrative action has become extensive and expansive. The
traditional limitations have vanished and the sphere of judicial scrutiny
is being expanded. Under the old theory, the courts used to exercise
power only in cases of absence or excess or abuse of power. As the
State activities have become pervasive and giant public corporations
have come in existence, the stake of public exchequer justifies larger
public audit and judicial control.

JUSTIFICATION OF JUDICIAL REVIEW

When court review administrative action, they will generally frame
their enquiry on one of the grounds of review. These grounds then
enable the court to decide whether or not there was illegality or
irregularity in taking the action and then hand down an appropriate
remedy. However, these grounds are merely indications of the more
general concept which underlies the rationale of judicial review is
legality. The basis behind the judiciary’s power to control actions of
the executive has historically been rooted in the doctrine of ultra
vires. This means that the executive can only act legitimately where
their conduct is lawful, which must be authorised by an empowering
provision.
Before considering the proper role of courts in reviewing
administrative action, it should firstly be established why and how
courts are empowered to intervene. In a model of separation of
powers, each branch of government has their own constitutional and
institutional function. However, there are times when those strict
boundaries will be infringed. One such case is when the courts review

80
the acts of the administrative branch.122 However, these infringements
are parts of the concept of the separation of powers and fulfil to role
of check and balances against power.
Public authorities cannot act as they please. Their actions must be
lawful and legitimate and they may only exercise the powers given to
them expressly or impliedly by Parliament or by Constitution. The
basis for judicial review is that the courts have the power to evaluate
conduct of the executive which falls outside of their mandate.123 The
reason for this is that all public power is subject to a form of judicial
review. In general sense, ‘judicial review’ refers to judicial control of
public decision-making in accordance with rules and principles of
administrative law.124 Judicial review involves a process whereby
courts can identify and cure illegalities and irregularities committed
by the administration.
The underlying object of judicial review is to ensure that the authority
does not abuse its power and the individual receives just and fair
treatment and not to ensure that the authority reaches a conclusion
which is correct in the eye of law.125
As observed by the Supreme Court in Minerva Mills Ltd. v. Union of
India,126 the Constitution has created an independent judiciary which
is vested with the power of judicial review to determine the legality of
administrative action and the validity of legislation. It is the solemn
duty of the judiciary under the Constitution to keep different organs of
the State within the limits of the power conferred upon them by the

122
‘The powers of all public authorities are subordinated to the law... they are all subject to legal
limitations; there is no such thing as absolute or unfettered administrative power... The primary
purpose of administrative law, therefore, is to keep the powers of government within their legal
bounds, so as to protect the citizen against their abuse.’ Wade and Forsyth, Administrative Law, p 5
(Oxford University Press, UK, 10th edn., 2010)
123
‘The British system of administrative law, which is followed throughout the English-speaking
world, has some salient characteristics... the outstanding characteristic of the Anglo-American
system is that the ordinary courts, and not special administrative courts, decide cases involving the
validity of governmental action.’ Wade and Forsyth, Administrative Law, p 10 (Oxford University
Press, UK, 10th edn., 2010)
124
Peter Cane, Administrative Law, p 28 (Oxford University Press, UK, 1 th edn. 2004)
125
Chief Constable v. Evans, (1982) 3 All ER 141; L. Chandra Kumar v. Union of India, AIR
1997 SC 1125
126
AIR 1980 SC 1789

81
Constitution by exercising power of judicial review as sentinel on the
qui vive. Thus, judicial review aims to protect citizens from abuse or
misuse of power by any branch of the State.
Judicial quest in administrative matters is to strike the just balance
between the administrative discretion to decide matters as per
government policy and the need of fairness. Any unfair action must be
set right by administrative review.127
The doctrine of judicial review is the basic feature of our Constitution.
Judicial review is the most potent weapon in the hands of the judiciary
for the maintenance of the rule of law. Judicial review is the
touchstone of the Constitution and without it there will be no
government of laws and the rule of law would become a teasing
illusion and a promise of unreality. In recent times, judicial review of
administrative action has become extensive and expansive.

Facilitation of Review: The Traffic Light Theories

The purpose with which review is employed is an essentially important
aspect of how it is used as a safeguard against the abuse of public
power. The traffic light theory is especially useful in determining the
role that judicial review plays. The theory is a way of describing
approaches to the control of public and administrative power by the
courts and the intention with which the courts exert jurisdiction. The
theory uses the example of two stages of a traffic light, the red-light
theory and the green light theory.
The red-light theory indicates courts as watchdogs whose primary
function is to curb the misuse of administrative power. It is based on
the assumption that every power tends to corrupt and absolute power
tends to corrupt absolutely. Its object is to keep government agencies
and administrative authorities within the bounds of law through judicial
control. This may often lead to judicial activism. The red light theory
has at its centre the rule of law. This means that courts are the primary
weapon of the citizen against the state and the control of the executive.

127
Tata Cellular v. Union of India, AIR 1996 SC 11,13

82
The green light theory, on the other hand, views courts as facilitators
to administrative justice. Rather than merely curbing executive power,
they encourage good governance and facilitate better operations in the
administrative sphere. In this way, green light theory favours the
‘administrative state’ and identifies administrative law as a vehicle for
positive social change. The focus of green light theory must then also
be the reform and change of the legal system itself and naturally the
theory focuses on the alternatives to courts, especially the construction
of so-called administrative courts. Green light theory also places far
less emphasis on judges and courts.

Both the theories have their own merits and pitfalls. In most of the legal
system, therefore, there is combination of two theories. In other words,
reality lies somewhere between the pure ‘red’ and ‘green’ light models,
in and ‘Amber light theory’. As observed in R. v. Lanchashire County
Council,128 Sir John Donaldson observed that, a new relationship has
emerged between the courts and those who desire their authority from
the public law. It is one of partnership based on a common aim like,
maintenance of highest standards of public administration.129

Criticism of Review: Limits and Limitations

Judicial review has certain inherent limitations. It is suited more for
adjudication of disputes than for performing administrative functions.
It is for the executive to administer the law and the function of the

128
(1986) 2 All ER 945
129
C.K.Takwani, Lectures on Administrative Law, p 8 (Eastern Book Company, Lucknow, 4 th edn.
2008)

83
judiciary is to ensure that the Government carries out its duty in
accordance with the provisions of the Constitution.130

The duty of the court is to confine itself to the question of legality. It

has to consider whether a decision-making authority exceeded its
powers, committed an error of law, violated rules of natural justice and
reached a decision which no reasonable man would have reached or
otherwise abused its powers. Though the court is not expected to act as
a court of appeal, nevertheless it can examine whether the “decision-
making process” was reasonable, rational, not arbitrary or not violative
of Article 14 of the Constitution. The parameters of judicial review
must be clearly defined and never exceeded. If the authority has
faultered in its wisdom, the court cannot act as super auditor.131

Unless the order passed by an administrative authority is unlawful or

unconstitutional, power of judicial review cannot be exercised. An
order of administrative may be right or wrong. It is the administrator’s
right to trial and error and so long as it is bonafide and within the limits
of the authority, no interference is called for. In short, power of review
is supervisory in nature. Unless this restriction is observed, the court,
under guise of prevention abuse of power by the administrative
authority, will itself be guilty of usurping power.132

Finally there are many types of criticisms against judicial review.

Firstly, review is described as being peripheral in three different senses;
the first of which is that it does not consider matters which are not

130
S.R.Bommai v. Union of India, AIR 1994 SC 1918
131
Ibid.
132
Ibid.

84
‘justiciable’ or not of a nature that is able to be decided by a court of
law.133 Secondly, there is no conclusive evidence to show that the
outcomes of adverse judicial review judgments cause administrators to
change their decision-making methods in any way. Thirdly, review
does not necessarily grant applicants the kind the kind of relief they are
seeking. The applicants generally seek a favorable substantive decision,
not merely the not merely the same adverse decision remade in
accordance with procedural requirements.

The second criticism is that review is negative and retrospective. This

means that rather than aiming progressively at ensuring better future
administrative decision-making, review focuses on past
maladministrative and seeks to cure defects that have already
occurred.134

Thirdly, review is criticised as being slow, expensive, time-consuming

and deeply mysterious to the layperson.

The last criticism is that the legitimacy of judicial review, whether it is

undemocratic? This criticism can be analysing by two ways, firstly the
process of review does not enhance participation of the public or the
problem of non-participation and secondly that judicial review involves
usurpation by the judiciary of the function of the executive.

The conclusive point about the criticism is that, although they are true
of judicial review, they are only problematic when review is required
to fulfil a different function then the one it was created to. For example,
despite the fact that it is true that review is backward looking and a

133
Fuller “The Forms and Limits of Adjudication” p 353. 92 Harvard LR, (1978-1979)
134
Peter Cane, Administrative Law, p 378 (4th edn. 2004)

85
negative check, there should be other positive and progressive means
of promoting good governance. That way, judicial review would
remain a curative power of the courts and would only be employed as
a final means to correct glaring legal errors.

86
SUGGESTIONS
Judicial Review is developed on the ideological foundations of
Constitutional Supremacy. However, its inappropriate use and recent
versions such as Judicial Interpretation has leaded its failure. This
concept was evolved to protect the basic natural and civil rights of the
citizens from the tyranny of Legislature and limit the parliamentary
sovereignty. The recent striking down of the various legislations and
new trend of making laws by Supreme Court has left many debates
endless.
To make it more efficient Indian judicial system needs certain reforms
at all levels, these reforms are needed to be applied at the grass root
level and as well at the higher levels, few of the suggestions are:
• Improve District Courts
There must be a bottom-up approach for the reformation of the
judiciary in India. The biggest concern is with the district courts
where lakhs of people come into touch with the system of
administration of justice. Many administrative improvements
and ad hoc modifications at the Supreme Court and high courts
will not affect the structure until the concerns of those courts
are resolved, and the ordinary litigant will have to endure the
slings and arrows of cruel fortune. A high-level team must tour
each district court to ascertain if the services and amenities are
missing. It would shock many to learn that, for many years,
several court halls and registration rooms have not been
whitewashed and there is a breakdown of windows, tables,
racks and almirahs. There are innumerable pending cases in the
lower courts. These must be tackled to have a better structure.
More number of judges must be appointed to the district courts
than the high courts. This will help to deal with the pending
cases.
• Increase judicial capacity
The first thing the government can do is to increase the number
of magistrates. This method is not a simple one. It requires
action at every level. The number of judges needs to be

87
 increased including the Supreme Court, the High Court, and the
lower courts. To at least double but preferably triple the number
of judges. India needs a variety of amendments, filling up all
the existing vacancies. It is the most critical step towards
solving India’s serious lack of judicial ability. Indian judiciary
needs a streamlined recruitment process also.
Special attention must be paid towards the appointment of
District Court judges and their transfer. We need to provide
more vacancies for judges, especially at the lower levels of the
judiciary. District judges with legal degrees and postgraduate
degrees come to the service. People and women with
outstanding intelligence are quite frequent. We accumulate
experience as judges over the years and then their appointment
as high court judges are postponed because of the district
judiciary’s corruption. Relatively unimportant jurisdictions are
granted to the district court. They are also viewed with less
deference by Bar owners. Very few district judges have made it
to the Supreme Court except for maybe a few well-known and
extraordinary instances. Gates to the above platform are often
opened by considerations other than competence. They are
neglected based on religion or status. Very qualified judges are
superseded by these factors. Lower judiciary requires a
structured procurement mechanism that is handled by full-time
supervisors rather than judges. That is, our court needs a
committed Human Resources Director. Vacancy rates in the
lower courts are about 25 per cent, and in high courts, about 40
per cent. Indian courts are therefore only operating at just 75
per cent of their already extremely poor capacity. And so, the
new openings must be filled out immediately. This will help to
reform the judicial capacity of the system.
• Court management
The Indian judiciary needs a dedicated branch of the registrar,
administration, and management. India today dreams to become
a completely digitized society. We were, to a large extent,
productive. But oddly enough, the Indian judiciary is left

88
 behind. This would help save a great deal of time to and from
paperwork. A computerized program should be in place which
minimizes human discretion.
Courts need a separate list of court/administrative personnel to
better streamline the legal process. Today this sort of automated
procedure is used for many government programs such as
passport issuance. But courts, which are much more loaded and
pendent than other public services, continue to operate without
a sensible administrative infrastructure. For example, also in
higher courts, judges spend precious time arranging trials and
times and appearances before the court.
India needs to create a judicial service to provide the resources
required to ensure the smooth running of courts. In the UK, the
service has a qualified workforce that works to support the
court system, ranging from recruiting procedures, internal
infrastructure management, and caseload delivery systems.
India requires a specific framework, preferably at the state
level, to consider and implement the judicial system’s resource
needs, staffed by administrators and helmed by retired
magistrates.
• Case management
Case management is a systematic method for monitoring
resources and incidents in a dispute as it moves through the
court system, from inception to settlement. Our politicians tend
to have the idea that it is not possible to dedicate attention to
case management because of the overwhelming number of
outstanding litigations. However, this is not valid. During a
lecture given at the Delhi Judicial Academy around 15 years
ago, a U.S. federal judge who practiced case management told
the judges that he had started with about 3,000 cases in his
jurisdiction and reduced this number to about 300 in three
years.

89
 India is famed for issuing adjournments and encouraging
parties to manipulate judicial delays. This can be addressed by
modifying legal rules to restrict the number of circumstances
that adjournments are granted. Justice allows the court to
provide plenty of time for thorough trials to include
adjournments in emergency cases. In the Indian scenario, we
achieve neither justice nor productivity.
Modifying the evidence and the procedures of the court and
reducing the number of delays, continuations and adjournments
permitted by the court can help in management.
To impose fines or sanctions on the party which delays and
demands continuance and adjournment. Penalties and fines on
parties failing to file the required papers or evidence on time.
To ensure adherence, the timeline for the completion of the case
requires a clear set of penalties, especially for the party
deviating from the timeline. The data or records of each judge
for the disposal of cases should be made public and ideally
incorporated in decisions to raise judges to a higher bench.
• Faster trials
There are innumerable pending cases in India. The cardinal
issue with the current judiciary is that the trials for such cases
are so slow that it might take ages for them to be resolved. The
judges must have a faster trail process in India. A successful
start will be to declare the creation of a new court in each
district, naming thousands of new magistrates. The Law
Commission has consistently recommended hearing cases,
avoiding postponements and arriving at speedy verdicts. That is
only possible if the case-load per judge is sufficient. It will be a
big move forward to create an Indian Judiciary Service and
create a wide pool of qualified, committed judges that will
increase the pool of talent available for promotion to the higher
court. A further goal is improving the system of selecting
judges and keeping their work to account. The executive and
the legislature will play a part in the process.

90
 Judicial delays must be cut down. Citizens should have easy
access to the courts. This includes successive Chief Justice,
judges, governments (central and state), prosecutors, registry
workers, scholars, and academics — working together to ensure
that litigants have better access to justice.
The answer to dealing with the enormous backlog of cases is
not just increasing the number of judges or filling vacancies,
though both would help. Innovative approaches such as
developing new courts of appeal, exploring IT technologies that
can simplify workflows as reported by India’s Chief Justice,
constructing improved facilities that enable access to
courtrooms are some ways forward to chip away from the
current backlog. A mission to that end must be set up under the
leadership of the Chief Justice. This mission will ensure that the
Indian judiciary is known not only for the eloquence of its
substantive judgments but also for its ability to deliver justice
quickly, independently and in a way that keeps the public’s
faith intact. Much as Chief Justice Kania had foreseen when, in
1950, the court first opened its doors to the public.
• Merit appointment
By the term merit appointment, we mean that the appointment
of judges must be based on their qualification and their ability.
The Indian judiciary, in contrast, tends to appoint the judges
based on caste, race and religion. It is a shame that a system
that appoints judges on these merits, and as is seen to do so, is
eluding us, with two approaches being tried — executive-led
and judicial collegium-led. That is because criteria are not
explicitly set out. The perfect procedure should be a board of
appointments, composed of the Chief Justice, two senior judges
and the executive members. That will ensure checks and
balances, as well as speed up the entire cycle by providing a
skin in the game to the government, requiring it to be kept
responsible for the decisions taken. It will also uphold judicial
primacy and be in line with the need for judicial freedom.

91
 The system must also consider women in the appointment. It is
so heart-breaking to see that despite so many women in law
school, very few join the litigation field. In any profession, the
few who have to face the prejudices are mostly women. A
common corollary is a minimal appearance at the table. When
one moves up the current ladder the difference decreases. Just
10.89 per cent of high court judges as of 23 March 2018 were
women. Today the number in the Supreme Court is 9.09 per
cent. When we go up the ladder of the judiciary the number of
women fall sharply. The pyramid has to go on for the
betterment of the judiciary structure in the country.
• Better investigation
India lacks an investigation policy. A lot of innocents who are
falsely accused get punished due to the lack of investigation.
They suffer from mental abuse and harassment, there are
several instances where this factor has been proven.
• Infrastructure
Since the colonial period, the physical architecture of Indian
courts has not improved much. Both in overall scale and the
number of courtrooms, courts need to expand, but they still
need to enlarge to meet the additional personnel needed in the
back office and registrar, as well as physically handle the
number of lawyers and parties or the regular court footfall.
Specific items, such as the number of bathrooms, parking
spaces, waiting rooms, etc., did not increase to keep up with the
population or a load of incidents. Even the courtroom at lower
levels lacks basic infrastructure. This has to be looked upon for
the betterment of the system. To deal with the rise in the
number of people and cases represented, Indian courts must
physically increase in size.

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CONCLUSION
Judicial review of administration is, in a sense, the heart of
administrative law. It is certainly the most appropriate method of
inquiring into the legal competence of a public authority. It’s the most
effective remedy against administrative excesses available. It is a
positive feeling among the people that if the administration carries out
any function or acts at the discretion of the power given to it, either by
legislative norms or following the provisions of the Indian constitution.
Unless, because of that discretionary power, it is a failure to exercise
discretion or misuse of discretionary power to satisfy its gain or any
private gain, the only choice before the public is to go to court under
Article 32, Article 136, or Article 226 of the Indian Constitution. The
main purpose of judicial regulation is to ensure compliance with the
laws enacted by the government with the rule of law. Judicial regulation
has certain drawbacks inherent in this. It is better suited to dispute
resolution than to administrative functions. It is the executive who
administers the law and the judicial system function to ensure that the
government fulfils its duty following the provisions of India’s
constitution.
The aspect of an official decision or an administrative act that may be
scrutinized by the judicial process is the competence of the public
authority. The important aspect of the study of administrative law is the
judicial control of administrative action. The tremendous increase in
the powers of the administrative authorities in the modern times. Due
to the increased powers of the administration judicial control has
become an important area of administrative law, because courts have
proved more effective and useful than the legislative or the
administrative in the matter.
The doctrine of legitimate expectation in the latest recruit to a long list
of concepts fashioned by the courts to check the abuse of the exercise
of administrative powers. This doctrine is discussed keeping in view its
impact on the flexibility of administrative action.
The Public accountability doctrine has developed in India through case
law with special emphasis of administrative powers as public trust.

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Doctrine of proportionality is fully established as a constitutional law
concept but its application in administrative law is still being debated.
This doctrine discusses various claims and counter claims.

94
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