ROLE OF JUDICAL ACTIVISM IN CHECKING THE

ARBITRARINESS OF THE ADMINISTRATIVE

AUTHORITIES

B. VIGNESH (CHR2208)

I YEAR LL.M.

DEPARTMENT OF CONSTITUTIONAL LAW AND HUMAN RIGHTS

TABLE OF CONTENTS

1.INTRODUCTION

1.1.STATEMENT OF THE PROBLEM

1.2.RESEARCH QUESTIONS

1.3.OBJECTIVES OF THE STUDY

1.4.RESEARCH METHODOLOGY

1.5.CHAPTERIZATION

2.BACKGROUND OF THE STUDY

2.1.JUDICIAL REVIEW V. JUDICIAL CONTROL

2.2.JUDICIAL REVIEW ON ADMINISTRATIVE ACTION

2.3.JUDICIAL CONTROL ON ADMINISTRATIVE ACTION

2.4.EXCLUSION OF JUDICIAL REVIEW AS A GROUND OF ULTRAVIRES

3.ROLE OF JUDICIAL ACTIVISM IN INDIA

4.NECESSITY OF ACTIVIST ROLE OF JUDICIARY TO CONTROL
ADMINISTRATIVE DISCRETION IN INDIA
 4.1.LIMITATIONS OF JUDICIAL CONTROL OVER ADMINISTRATION

4.2.NEED FOR ACTIVIST JUDICIARY

5.EFFECTIVENESS OF JUDICIAL ACTIVISM IN CONTROLLING THE ABUSE OF

ADMINSTRATIVE AUTHORITIES
6.CONCLUSION AND RECOMMENDATIONS
7.REFERNCES
1.INTRODUCTION

Judicial activism is necessary for the protection of rule of law in the civilized society. The
Administrative authorities are provided with the function of enforcing and administering laws
of the state. In the exercise of such function various powers have been provided to them. If
such powers are not regulated properly it would lead to Despotism in which people will be
deprived of their personal and political liberty. In order to protect this, the judiciary plays an
important role. This role can be effectively played by the judiciary if it employs various activist
mechanisms as there is a vacuum to be filled and there is a social want as to uphold the rights
of the people. The Indian Constitution establishes an independent and impartial judiciary in
order to prevent the abuse of power by administrative authorities. The judiciary by means of
judicial review and judicial control is maintaining the supremacy of the Constitution. Since the
Constitution is supreme in India, the act of judiciary is to ascertain the validity in par with the
constitution. The Judiciary employs various doctrines like Doctrine of ultravires, Doctrine of
Legitimate Expectation, Doctrine of public accountability, and Doctrine of Proportionality to
ascertain the validity.

Under the Indian Constitution, the State is under the prime responsibility to ensure justice,
liberty, equality and fraternity in the country. State is under the obligation to protect the
individuals’ fundamental rights and implement the Directive Principles of State Policy. In order
to restrain the State from escaping its responsibilities, the Indian Constitution has conferred
inherent powers, of reviewing the State’s action, on the courts. In this context, the Indian
judiciary has been considered as the guardian and protector of the Indian Constitution.
Considering its constitutional duty, the Indian judiciary has played an active role, whenever
required, in protecting the individuals’ fundamental rights against the State’s unjust,
unreasonable and unfair actions/inactions. Black’s Law Dictionary defines judicial activism as:
“a philosophy of judicial decision-making whereby judges allow their personal views about
public policy, among other factors, to guide their decisions, usually with the suggestion that
adherents of this philosophy tend to find constitutional violations and are willing to ignore
precedent”.
1.1.STATEMENT OF THE PROBLEM

The Constitution establishes three organs of the Government and specifies its function. It is the
work of the each organ to maintain within its sphere. But our Constitution also envisages
checks and balances which makes one organ to be accountable to another. In the view of such
balances Administrative law comes into picture to prevent the Administrative authority from
abusing its power. There was a steady increase of governmental intervention into the day to
day affairs of the public due to the transformation of Laissez Faire state to welfare state. The
Administrative law prescribes limits, nature, ways of exercise of the power. It also provides for
procedures and remedies. This process of maintaining Rule of law is done by two processes
namely, Judicial Review and Judicial Control. However these legal propositions are not
sufficient in controlling the abuse and thus there is a need for judicial activism for such acts.

1.2.RESEARCH QUESTIONS

(i) Whether the activist role of judiciary is necessary to control the administrative discretion in
India?

(ii)Whether the judicial activism is effective in controlling abuse of administrative authorities?

1.3.OBJECTIVES OF THE STUDY

➢ To understand the historical trends of administrative law for controlling abuse by

administrative authorities
➢ To find out the lacunae in those practices
➢ To evaluate the current trends of judicial review in this area
➢ To understand the relevance of judicial activism in controlling the administrative abuse

1.4.RESEARCH METHODOLOGY

The methodology adapted in this research is doctrinal in nature. The research has been done
extensively with the aid of different materials available both online and offline. The main tools
of research are the analysis of the judicial pronouncements, legislations and literatures. The
sources referred in this paper are both primary and secondary sources. Primary sources include
the Constitution of India, Constitution of other countries, the Judicial Precedents, Constituent
Assembly Debates and Reports. Whereas secondary sources include books of various authors,
journals and commentaries.
1.5.CHAPTERIZATION

Background of the study enquires about the evolution and principles of judicial review of
administrative action and tools used by the judiciary in preventing the abuse.
Role of Judicial Activism in India- this chapter enquires into the evolution of judicial activism
and its contribution to Indian legal system.
Necessity of activist role of judiciary to control administrative discretion in India deals with
the defects in the earlier system and the principles that newly emerged to prevent the misuse
of authorities.
Effectiveness of Judicial Activism in controlling the abuse of administrative authorities
evaluates the doctrine with the help of decided cases.
2.BACKGROUND OF THE STUDY
2.1.JUDICIAL REVIEW V. JUDICIAL CONTROL

It is necessary to distinguish ‘ Judicial review’ from that of ‘ Judicial Control’. The term judicial
review has a restrictive connotation as compared to the term judicial control. Judicial Review
is ‘Supervisory’ rather than corrective in nature. Judicial review is denoted by the writ system
which are provided under articles 32 and 226 of the Indian Constitution. ‘Judicial Control ‘ on
the other hand is a broader term. It denotes a much broader concept and includes judicial review
within itself. Judicial control comprises of all methods through which a person can seek relief
against the Administration through the medium of the courts , such as appeal , writs ,
declaration , injunction , damages, statutory remedies against Administrative Authorities.

2.2.JUDICIAL REVIEW ON ADMINISTRATIVE ACTION

Judicial review on Administrative action means the review of administrative action by the
courts to ensure its legality. Judicial review of Administrative action according to Smith is
inevitably sporadic and peripheral1. This undertakes the scrutiny of administrative action on
the touchstone of Doctrine of Ultra vires 2. Judicial review is the basic structure of the
Constitution3. The Judiciary is independent with vast powers to adjudicate the disputes , entail
fines and penalties, and foremost the interpretation of law. The court has the power to review
the work or actions of the other branches and levels of the government , concerning the courts
power to invalidate the legislative and executive actions as being unconstitutional. In L.
Chandra Kumar v. Union of India 4,Hon’ble Supreme Court stated that “ Definition of Judicial

1
De Smith , Judicial review on Administrative Action ,pp-201-205, (4th ed. 1980).
2
See State of M.P. v. M.V.Vyvasaya Co. Ltd. , Tata cellular v. UOI (1994)6SCC 651, UOI v. B.C.Chaturvedi
(1995)6SCC750.
3
Keshavandha Bharathi v. State of Kerala AIR 1973 Sc 1961, State of Madras v. V.G. Row AIR 1952 SC 196,
Mahbir auto store v. Indian oil corpn. AIR 1990 SC 1031 , Shreelekha Vidyarathi v. State of U.P. AIR 1991 Sc
531, Indira Nehru Gandhi v. Raj Narain (1975) Supp SCC 1.
4
AIR 1997 SC 1125.
review in the American context is , subject to a few modifications , equally applicable to the
concept as it is understood in the Indian Constitutional Law. Broadly speaking , judicial review
in India comprises of three aspects : judicial review of legislative action , judicial review on
judicial decisions and judicial review on Administrative actions.”

The courts in India are given extraordinary powers to control and review the Administrative
actions. The courts are playing a creative action in order to protect the relations of the growth
and development of administrative law. The scope of Judicial review and the domain of the
courts are handful , where it looks for the specific issues to give shape to the principles by
which administrative functioning can be regulated 5.Judicial quest of 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 the Judicial
Review 6. The judicial review on Administrative actions concerns mainly with two aspects
namely (a) Whether the authority has exceeded its power? (b) Whether it has abused its power?
. The judicial review efficiently exists because it is very flexible , when a statute does not
confer a review or appeal, judicial review’s inherent flexibility provides the citizen with the
remedy where one might otherwise not exist 7.

(i)DOCTRINE OF LEGITIMATE EXPECTATION

The doctrine of legitimate expectation belongs to the domain of public law. It is proposed to
give relief to the people when they are not able to justify their claims on the basis of law. As
they have suffered a civil consequence because their legitimate expectation had been violated 8.
This doctrine is a part of the principle of natural justice and no one can be deprived of this
legitimate expectation without following the principle of natural justice. The doctrine of
legitimate expectation is an example of judicial creativity. It is not extra legal and extra
Constitutional because it is based on the principle set out under Article 14 of the Indian
Constitution. The Article 14 gives protection not only in case of arbitrary ‘class legislation’ but
also in case of arbitrary ‘ state action’ 9. In India the first reference to the doctrine was made in
State of Kerala v. K.G. Madhavan Pillai 10. The scope of the doctrine provides the sufficient

5
(2002)( 35 SCL. 182.
6
Tata Cellular v. Union of India , AIR 1996 SC 11 & 13.
7
R v. Brighton Justices , Exparte Robinson (1973) 1 WLR 69.
8
See Clerk, R, In Pursuit of Fair Justice , AIR 1966 (1) 11.
9
Maneka Gandhi v. Union of India ,AIR 1978 SC 478.
10
AIR 1989 SC 49 ; see also Navjyoti Coop. Group Housing Society v. Union of India, SC and WS Welfare Assn.
v. State of Karnataka (1991) 2 SCC 604, Union of India v. Hindustan Development Corp. (1993) 3 SCC 499.
Locus Standi to the applicant for judicial review. This doctrine has attained atmost importance
as it takes palce beside such principles as rules of natural justice , rule of law, non- arbitrariness
, reasonableness , fairness , promissory estoppels, fiduciary duty and perhaps , proportionality
to check the abuse of the exercise of administrative power11. Thus this doctrine plays a key for
providing power of the courts to review the validity of the administrative action.

(ii)DOCTRINE OF PUBLIC ACCOUNTABILITY

Doctrine of public accountability is of new origin in the facet of administrative law. The basic
purpose of emergence of this doctrine is to check the misuse of power by administrative
authorities and to provide speedy relief to the victims of such abuse. This principle is based on
the premise that the power in the hands of the administrative authorities is a public trust , which
is to be exercised , in the best interest of the people. The privy council in A.G. of Hong kong v.
Reid12 has widened the scope of the principle of jurisprudence stating that bribery is an evil
practice which threatens the foundations of any civilized society and that any benefit obtained
by a fiduciary through the breach of duty belongs in equity to the beneficiary 13.

In State of Bihar v. Subash Singh 14, the court applied the doctrine of public accountability held
that the Head of Department is ultimately responsible and accountable unless there are special
circumstances absolving his accountability 15. The scope of public accountability has further
been widened by the developing of the principle “ polluter must pay “ in case of environmental
pollution16 and that every administrative authority shall be accountable for the proper and
efficient discharge of its statutory duty 17.

(iii)DOCTRINE OF PROPORTIONALITY

Proportionality means that the action should not be more drastic than it ought to be for attaining
the desired result. Proportionality is the course of action which could have been reasonably
followed and should not be excessive or severe. It is concerned with the way in which the
administrative authorities exercise their power . It is the cardinal principle of the criminal
jurisprudence that the punishment imposed should not be disproportionate to the gravity of the

11
Chanchal Goyal (Dr) v. State of Rajasthan , (2003) 3 SCC 485.
12
(1993) 3 WLR 1143.
13
See also A.G. of India v. Amritlal Prajivandas (1994) 5 SCC 54.
14
(1997) 4 SCC 430.
15
See also M.C . Mehta v. Union of India (1987) 1 SCC 746.
16
Indian council for Enviro-Legal Action V. Union of India , (1996) 8 SCC 212.
17
Ratlam Municipal Corpn v. Vardhi Chand , AIR 1980 SC 1622.
offence proved. In State of Orissa v. Vidya Bhushan Mahapatro18, the Court held that if the
High Court is satisfied that some but not all the findings of the tribunal were unassailable , then
it had no jurisdiction to direct the disciplinary authority to review the penalty . Rule of
Proportionality is fully applicable in the constitutional adjudication where the court has to
decide on the reasonableness of a restriction on the exercise of the fundamental rights and its
application in administrative law is still in an evolving stage.

2.3.JUDICIAL CONTROL ON ADMINISTRATIVE ACTION

DOCTRINE OF ULTRA VIRES:

According to the doctrine of ultra vires when the act of the administrative authority is beyond
the scope of the enabling act or the parent act then such an act would be ultra vires and thus
void19.

Grounds of invalidation:

(i)parent act ultra vires the constitution 20.

(ii)delegated legislation ultra vires the provisions of the Constitution 21.

(iii)delegated legislation is ultra vires of the parent act 22.

(iv)delegated legislation is in conflict with the procedures in the parent act23.

(v)delegated legislation made by an authority exercising its power malafidely.

(vi)delegated legislation is unreasonable and arbitrary24.

18
1963 supp (1) SCR 648 .
19
Mohd. Yasim v. Town Area Committee , Jalalabad , AIR 1952 SC 115
20
See Babu Ram v. State of Punjab AIR 1979 SC 1475, Agriculture market committee v. Shalimar Chemical
Works , AIR 1997 SC 2502.
21
See Narendra kumar v. Union of India 1960 SCR (2) 375; Air India Etc. Etc v. Nergesh Meerza & ors. Etc. Etc,
1982 SCR (1) 438.
22
I.T.O. v. M.G. Punnore , AIR 1970 SC 385; Delhi Transport Undertaking v. B.B.L. Hajeary , (1972) 2 SCC
744.
23
See Banwarilal v. State of Bihar, AIR 1961 SC 849; see also Radha Krishnan v. State of M.P., AIR 1952 Nagpur
467.
24
See Maneka Gandhi v. Union of India , AIR 1978 SC 597; Air India v. Nargesh Meerza, AIR 1981 SC 1829 ,
Central inland Transport Corporation v. B.N. Ganguly , AIR 1986 SC 1571; Meenakshi v. University of Delhi ,
AIR 1989 SC 1568.
(vii) retrospective effect of the delegated legislation 25.

2.4.EXCLUSION OF JUDICIAL REVIEW AS A GROUND OF ULTRAVIRES

When a clause in parent act or delegated legislation provides for the exclusion of the power of
the court to review such delegated legislation , then it is considered as a ground for invalidating
such an act because it violates the basic structure of the constitution. The Supreme Court in
various cases 26 has held in spite of such exclusion clause , the delegated legislation can be
reviewed by the courts. Thus in spite of the exclusion clause the delegated legislation can be
challenged on the ground of ultra vires and courts can declare it invalid if it is ultra vires. In
spite of such exclusion , the validity of the rule is always open to challenge on the ground that
it is unauthorized27. In short, in spite of such exclusion clause , the delegated legislation may
be held to be invalid on the ground that it is unauthorized. This is done in order to protect the
Independence of Judiciary . Because ,The independence of judiciary is to be constantly guarded
against the unexpected events and changing social , political, and economic conditions 28,it is
too fragile to be left unguarded 29.

3.ROLE OF JUDICIAL ACTIVISM IN INDIA

The term ‘judicial activist’ was first used by Arthur Schlesinger in an article published in
Fortune in 1947. Schlesinger targeted Justices Douglas and Black as being especially activist.
But he offered no clear definition.Further, this term was used for the first time in any judicial
opinion by Judge Joseph C Hutcheson in 1959 in the matter of Theriot v Mercer 30.
The activism of the Supreme Court of India during the1950s and the1960s was confined to a
few cases on right to property. On personal liberty, the Court was extremely positivist. Soon
after the Constitution came into force in1950 in AK Gopalan’s case31, the Supreme Court gave
a narrow and restrictive interpretation of article 21 of the Constitution. It was held that – ‘the

25
State of M.P v. Tikam Das , AIR 1975 SC 1429 ; Income tax Officer v. Alleppy M.C. Ponnose , AIR 1970 SC
385; Regional Transport Officer v. Associated Transport , AIR 1980 SC 561 .
26
See Chief Commissioner of Ajmer v. Radhey Shyam , AIR 1957 SC 304; State of Kerala v. Abdullah & Co. ,
AIR 1965 SC 1585.
27
State of Kerala v. Abdullah & Co., AIR 1976 SC 263.
28
See Shimon Shetreet , Justice in Israel : The Study of the Israeli Judiciary ( 4 th ed. , 1994)
29
See Granville Austin , The Indian Constitution: Cornerstone of a nation 26,164.
30
Corey Reyburn Yung, ‘Flexing Judicial Muscle: An Empirical Study of Judicial Activism in the
Federal Courts’ (2011) Northwestern University Review.
31
AIR 1950 SC 27.
procedure established by law means procedure established by a law made by the State’ and the
court refused to infuse in that procedure the principles of natural justice. Twenty eight years
after this judgement, in 1978 the Supreme Court in Maneka Gandhi’s case32 pronounced that
the procedure contemplated by article 21 must be ‘right, just and fair’ and not arbitrary; it must
pass the test of reasonableness and the procedure should be in conformity with the principles
of natural justice and unless it was so, it would be no procedure at all and requirement of article
21 would not be satisfied. The most significant aspect of this case was that the Court laid down
a seminal principle of constitutional interpretation. There cannot be a mere textual construction
of the words of the Constitution. Those words are pregnant with meaning that unfolds when
situations arise33. For example, the Constitution mentions the right to freedom of speech and
expression but does not mention the right to freedom of the press. The Supreme Court has,
however, held that the right to freedom of speech includes the right to freedom of the press34
and the right to receive information.
Since India is a developing country, one third of its population is illiterate, poor and ignorant
about their rights. It is impossible for them to assert their rights in the court of law. Therefore,
to give true meaning of the fundamental rights of these people, the Supreme Court in Madhav
Haskot’s case35, held that providing free legal service to the poor and needy is an essential
element of the ‘reasonable, fair and just procedure’. Again, in Hussainara Khatoon v State of
Bihar36, while considering the plight of the under trials
in jails, speedy trial was held to be an integral and essential part of the ‘right to life and
liberty’ contained in article 21 of the Constitution of India. This case is marked as first
case of judicial activism in the history of Indian Supreme Court, because here the court
granted relief not on the petition of the aggrieved person but on the petition of a third
person. This is the first case where traditional rule of locus standi is relaxed without
recognising it in express words.
The traditional rule of locus standi was that only aggrieved person, whose right has been
violated can approach the court for the redressal. This rule was relaxed in S P Gupta v President
of India37, where Justice Bhagwati said that: It must now be regarded as well-settled law where
a person who has suffered a legal wrong or a legal injury or whose legal right or legally

32
AIR 1978 SC 597.
33
SP Sathe, Judicial Activism in India (2nd edn, OUP 2002) 111.
34
RomeshThappar v State of Madras AIR 1950 SC 124.
35
AIR 1978 SC 1548.
36
AIR 1979 SC 1369.
37
AIR 1982 SC 149.
protected interest is violated, is unable to approach the court on account of some disability or
it is not practicable for him to move the court for some other sufficient reasons, such as his
socially or economically disadvantaged position, some other person can invoke the assistance
of the court for the purpose of providing judicial redress to the person wronged or injured, so
that the legal wrong or injury caused to such person does not go unredressed and justice is done
to him. The liberalization of the rule of locus standi came out of the following considerations:
[1] to enable the court to reach the poor and the disadvantaged section of society who are denied
their rights and entitlements, [2] to enable individuals or groups of people to raise matters of
common concern arising from dishonest or inefficient governance, and [3] to increase public
participation in the process of constitutional adjudication. This sort of litigation came to be
known as Public Interest Litigation [PIL].[PIL has proved to be a very potent weapon in the
hands of the judiciary to protect democratic principle and values. The wide reach of PIL is best
demonstrated by reference to some areas in which courts have made particularly significant
pronouncements. These are illustrative of the proposition that how court by employing various
tools has become more active in comparison to yesteryears and recognized rights which are not
so obvious by the plain reading of the Constitution.

4.NECESSITY OF ACTIVIST ROLE OF JUDICIARY TO CONTROL

ADMINISTRATIVE DISCRETION IN INDIA

4.1.LIMITATIONS OF JUDICIAL CONTROL OVER ADMINISTRATION

The effectiveness of judicial control over administration is limited by many factors. One of the
most important factor is that the courts cannot interfere in the administrative activities on their
own accord even if such activities are arbitrary. They act only when their intervention is
sought. Judicial intervention is restrictive in nature and limited in its scope. Some of these
limitations are:

a) Unmanageable volume of work: the judiciary is not able to cope up with the volume of
work. In a year the courts are able to deal with only a fraction of cases brought before it.
Thousands of cases have been pending in Supreme Court, High Courts and Lower Courts for
years together for want of time. There is an increase in the cases of litigation without a
commensurate expansion of judicial mechanism. The old adage of 'justice delayed is justice
denied', still holds good. This excessive delay in the delivery of justice discourages many to
approach the court. The feeling of helplessness results in denial of justice to many.
b) Postmortem nature of judicial control: In most of the cases the judicial intervention comes
only after enough damage is done by the administrative actions. Even if the courts set right the
wrong done, there is no mechanism to redress the trouble the citizen has undergone in the
process.

c) Prohibitive Costs: the judicial process is costly and only rich can afford it. There is some
truth in the criticism of pro-rich bias of judicial system in India. As a result, only rich are able
to seek the protection of courts from the administrative abuses. The poor are, in most cases, the
helpless victims of the administrative arbitrariness and judicial inaction. As V.R. Krishna Iyer
pointed 'the portals of justice are not accessible to the poor'.

d) Cumbersome procedure: Many legal procedures are beyond the comprehension of

common man. The procedural tyranny frightens many from approaching the courts. Even
though the procedures have a positive dimension of ensuring fair play, too much of it negatives
the whole process.

e) Statutory limitations: the courts may be statutorily prevented from exercising jurisdiction
in certain spheres. There are several administrative acts, which cannot be reviewed by courts.
For instance, ninth schedule of Indian constitution.

f) Specialised nature of administrative actions: The highly technical nature of some

administrative actions act as a further limitation on judicial control. The judges, who are only
legal experts, may not be able to sufficiently appreciate the technical implications of
administrative actions. As a result, their judgments may not be authentic.

g) Lack of awareness: In developing societies, most of the people who are poor and illiterate
are not aware of judicial remedies and the role of the courts. As a result they may not even
approach the court to redress their grievances. The courts, which can intervene only when it is
sought, may be helpless in this situation. The general deprivation of people also results in
deprivation of justice to them.

h) Erosion of autonomy of judiciary: There is executive interference in the working of

judiciary. The quality of judiciary mostly depends on the quality of the judges. The Law
Commission made many recommendations to ensure the judicial standards of the bench. The
suggestion to create Judicial Commission with responsibility for judicial appointments
deserves serious consideration. In recent years, there are many allegations of corruption against
judges. This undermines the prestige and the effectiveness of the judiciary.

Many steps have been initiated to overcome some of the limitations mentioned above. In the
succeeding paragraphs, we shall discuss some of these measures, in particular, Public Interest
Litigation, Legal Aid and Nyaya Panchayats.

4.2.NEED FOR ACTIVIST JUDICIARY

A long-time observer of the administrative law scene may be forgiven for marvelling at the
degree to which courts are now prepared to question the exercise of administrative discretion.
Some of the factors which have occasioned this development are the perhaps excessive
expansion of government, the growth of public interest groups and legal aid, and the increasing
willingness of the population to question governmental action. The fact that society at this time
does not perceive itself to be threatened by war or economic calamity has made it less tolerant
of administrative excesses. Another factor is the apparent indifference of the legislative and
executive arms of the government to the issue. All of these considerations
have combined to encourage the development of a reactive judiciary and a resurgence of
individualism.
It follows that of the past are now far more open to question. It is true that the principle of
collateral jurisdictional questions has suffered some eclipse of late, particularly in the area of
labour law. Nevertheless, one now finds greater judicial scepticism and activism in many other
spheres in which courts traditionally have been loath to interfere. That the Crown and its
instrumentalities are no less subject to the law than the ordinary subject is a legal principle that
in its application appears to have come of age. The discretionary authority exercised by
Executive have become far more susceptible to successful attack. And the forms of relief are
not necessarily confined to traditional judicial review. Indirect avenues of attack by way of
actions in tort and compensatory damages are increasingly being tested, albeit not as yet with
any large measure of success. Finally, the mechanisms devised by government to assist in the
exercise of discretion, particularly the internal guideline or policy directive, have come in for
greater judicial scrutiny.
5.EFFECTIVENESS OF JUDICIAL ACTIVISM IN CONTROLLING THE ABUSE OF
ADMINSTRATIVE AUTHORITIES
We have all come to understand the common law as a regulatory system. The common law
courts used the law of tort, contract, and property to regulate the economy. The resulting
doctrines set forth the terms under which contracts would be enforced; the circumstances under
which one person would be liable for injury done to another; and the methods for conveying
or interfering with rights in property. This system - the common law system of the eighteenth
and nineteenth centuries - was a period of genuine judicial activism. Substantial authority for
operating the economy was vested in the courts, largely under prevailing theories of laissez-
faire individualism. This system was of course known to, and accepted by, the Framers of the
Constitution. The management of the economy by relatively decentralized courts proved to be
an effective safeguard against capture by factional interests seeking to redistribute wealth or
opportunities in their favour. All of this has of course changed dramatically in the last century
or so. For a variety of reasons, the common law system has been displaced by a vast
administrative apparatus. Nowadays, the decisions formerly made by the common law courts
have been delegated to state and above all federal bureaucracies. The common law of torts has
been replaced by federal law governing such matters as pollution and discrimination. New sorts
of rights have been created, and the responsibility for their protection has been delegated to
federal agencies. Administrative law - and I speak now of substantive administrative law - has
for the most part displaced
the common law system.
In these circumstances, it should perhaps be unsurprising that the courts have sometimes
stepped back in - that they have in a sense reasserted powers that were theirs when the republic
was founded. That reassertion of power has manifested itself in various efforts to police and
discipline the administrative process. Let me attempt to list, by way of introduction, some of
the ways in which the courts have carried out that function.
1. The requirement of reasoned explanation. Agencies must give detailed explanations for their
decisions. Conclusory statements are insufficient, and departures from past practices must be
persuasively justified.
2. The requirement of adequate consideration. Agencies must demonstrate that they have given
adequate consideration to all arguments raised by the parties. Alternatives must be investigated.
3. The requirement of consistency. Like cases must be treated alike; inconsistent treatment may
result in reversal or remand for explanation.
4. The prohibition on arbitrariness. Decisions that appear "arbitrary" are reversed. This
principle may, but usually does not, include a rather strict judicial look at the merits. Judicial
activism in the field of administrative law has usually consisted of one or more of these devices
which, in concert, make up the so-called "hard look" doctrine. The hard look doctrine can of
course serve a great variety of substantive purposes. Most crudely, it can be a device for the
achievement of straightforwardly "political" ends - either to prevent regulation, or to promote
it. The hard look doctrine is sometimes a means of ensuring that agencies do in fact impose
statutorily required regulatory controls on private industry, but such cases are comparatively
rare. More frequently, hard look review is used as a method of testing regulatory initiatives -
by requiring agencies to show that the benefits of regulation justify its costs, or that a significant
problem is involved. In this form, hard look review is a means of promoting private ordering.
When used to test agency inaction, or agency failure to regulate sufficiently, such review
operates as a means of determining whether agencies have disregarded the values chartered in
regulatory statutes. It is no coincidence that review of this sort grew up shortly after widespread
attention had been given to instances of apparent "capture" of agencies by regulated industries.
Responding to this perception, courts began to police regulatory agencies to ensure that
statutory enactments had not been perverted or undone in the implementation process.
Judicial activism in administrative law thus appears in two different contexts. Some courts,
notably the Supreme Court have used the hard look approach to ensure that regulatory
controls are well-founded in the facts and in statutory policy. Thus applied, the hard look
doctrine serves as a means of promoting private ordering - and should in this sense be
congenial, institutional matters aside, to those disposed to a decentralized society. In this
respect, the hard look doctrine fits well with the traditional function of the reviewing courts,
which was the protection of private autonomy. In the latter category of cases, judicial activism
might be applaudedfor the same reason that the libertarian catalogue of private rights has
proved inadequate in all heavily industrialized nations. For courts to protect private ordering -
freedom to go about one's business without unauthorized regulatory intrusion - is all very well,
but it must be accompanied by a willingness to protect citizens from public law torts such as
racial discrimination, pollution, and the wide range of harms recognized in an affirmative state.
That protection usually takes the form of safeguarding not traditional private rights, but a
process of decision designed to ensure that the relevant public values will be properly identified
and implemented.
In Prakash Singh v. Union of India 38,the petitioners sought directions against the Union of
India and State Governments to constitute various Commissions and Boards laying down the
policies and ensuring that police perform their duties and functions free from any pressure and
also for separation of investigation work from that of law and order.

38
(2006) 8 S.C.C. 1.
Similarly, in Vineet Narain v. Union of India 39, the Supreme Court invoked Articles 32 and
142 of the Indian Constitution and issued directions to the government in order to bring
transparency and accountability in the Central Bureau of Investigation (CBI).
On May 11, 2016, the Hon’ble Supreme Court of India in Swaraj Abhiyan-(I) v. Union of India
& Ors.40, directed the Ministry of Agriculture in the Union of India to update and revise the
Drought Management Manual. The apex court also directed the Union government to set up a
National Disaster Mitigation Fund within three months.
Nevertheless, Finance Minister, Arun Jaitley expressed the difficulty to create a third fund
outside the National Disaster Response Fund and the State Disaster Response Fund, keeping
in view that the Appropriation Bill is being passed. He also raised concern about India’s
budget-making being subject to judicial review 41.
Recently, on 16 October 2015 the Constitution Bench of Supreme Court in Supreme Court
Advocates-on-Record-Association v. Union of India42, in a majority of 4:1 declared the
National Judicial Appointments Commission (NJAC) Act and the Constitutional Amendment
unconstitutional as violating judicial independence. The Court said that the existing collegium
system relating to appointment and transfer of judges would again become “operative.” Justice
Khehar said that the absolute independence of judiciary, from other organs of governance,
protects the rights of the people.
The Supreme Court’s rulings on National Eligibility-cum-Entrance Test (NEET) i.e., single
test for admissions in medical courses, reformation in Board for the Control of Cricket in India
(BCCI), filling up the judges’ post, etc. have been considered as the judicial intervention by
the government43.

6.CONCLUSION AND RECOMMENDATIONS

Thus, in the light of above discussion, it becomes clear that the court must, while exercising
the power of judicial review, exercise proper restraint and base their decisionson recognized
doctrines or principle of law. In fact, judicial activism and judicial restraintare two sides of the
same coin. The courts are entrusted with the duty of implementing the constitutional safeguards

39
(1998) 1 S.C.C. 226.
40
In the Supreme Court of India, Civil Original Jurisdiction, Writ Petition (CIVIL) NO. 857 of 2015, decided on
May 11, 2016, available at http://supremecourtofindia.nic.in/FileServer/2016-05-11_1462945782.pdf.
41
Five cases of judicial activism that has put govt. in a spot, Business Standard, BS Web Team, Mumbai May 17,
2016, available at http://www.businessstandard. com/article/current-affairs/five-cases-of-judicial-activism-that-
hasput- govt-in-a-spot-116051700587_1.html.
42
In the Supreme Court of India, Civil Original Jurisdiction, Writ Petition (Civil) No. 13 of 2015.
43
Ibid.
that protect individual’s rights, but they cannot push back, the limits of the Constitution to
accommodate the challenged violation. All it means that judges are expected to be self-
disciplined in the discharge of their judicial functions. Thus, in the words of Justice Katju, ‘in
democracy, the remedy of malfunctioning of legislature and executive must come from the
people, not the judiciary’. We must add a caveat here that although malfunctioning must be
addressed by people but under the shield of judicial restraint illegality should not be allowed
to go unattended by the Court.
However, it is submitted that NJAC decision should not be read as if the judiciary has crossed
its Laxmanrekha. The Supreme Court is also welcoming the full-fledged debate on the existing
collegiums system and wants it to be updated. Indian Constitution has given
the special status to the Supreme Court and High Courts. Indian higher judiciary has power to
review any legislative, executive and administrative action of the State. The Higher Courts in
India entertain the petitions which are being filed by the public spirited persons in the public
interest. Again, one should not forget that it is all because of the judicial activism that the
indigent persons, members belonging to socially and educationally backward classes, victims
of human trafficking or victims of beggar, transgender, etc. have somehow been provided with
the adequate legal assistance in the process of the enforcement of their fundamental rights.
Furthermore, Article 142 of the Indian Constitution gives the Supreme Court a power to pass
suitable decree or order for doing complete justice in any pending matter.

7.REFERNCES

➢ The Constitution of India 1950.

➢ Dr. J. N. Pandey, 2012: “The Constitutional Law of India”, 49th Edition: 2012.
➢ C.K. Takwani, 2014: “Lectures and Administrative Law”, Fifth Edition: 2012.
➢ Administrative Law, IP. Massey, Eastern Book Company, 2011.
➢ Principles of Administrative law, MP Jain, Lexis Nexis, 2017.
➢ Wade and Forsth, Administrative law (2009).
➢ Carr, Cecil Thomas, Concealing English Administrative law, Columbia University
Press, (2006).
➢ D.D. Basu, Commentary on the Constitution of India,Volume I, II and III, 8 th
Edition2007 Wadhwa, India(p.1281)
➢ D.D. Basu, Constitution of India,8th Edition 2009, Lexis Nexis, India(p.105)
➢ H.M. Seervai, Constitutional Law of India,4th Edition, I, II and III, 2004, Universal
Publications, India.(p.452-456)
➢ M.P. Jain, India Constitutional Law, 6th Edition, Lexis Nexis, India(p.1245)
➢ P.M. Bakshi The Constitution of India, 11th Edition, 2011, Universal Law Publishing
Company, India(p.235)
➢ V.N. Shukla, Constitution Law of India, 11th Edition,2008 Eastern Book Company
India.(p.113)
➢ Granville Austin, The Indian Constitution, 24th impression 2014, Oxford University
Press.(p.229)