ABSTRACT-

Judicial review is the power of courts. It helps the court to decide the validity of the executive and legislative actions of government. The doctrine of judicial review has been borrowed from Britain. Judicial review of administrative actions has been developed by judges on case to case basis. The aim of judicial review in administrative action is to restrict the immunity from judicial review to cases related to international treaties and etc. Judicial review has 4 types i.e.

1. Legislative review- here court reviews the constitutional validity of law passed by legislative
2. Judicial review- court reviews the decision of lower courts
3. Constitutional review- court reviews the constitutionality of constitutional amendments
4. Administrative actions review- here court reviews the constitutionality of administrative actions

In this paper we have enlighten type four i.e. Judicial Review on Administrative Actions.

INTRODUCTION-

Supreme Court is the Apex Court in the hierarchical judicial system of India. It is the final interpreter of law and the ultimate court of appeal in all civil, criminal and constitutional matter. Judicial review is integral part of the Constitution as well as a basic structure of the constitution. Even by an amendment of the Constitutioncant abolish or struck down the judicial review.²Judicial review is the soul of the system because without it democracy and the rule of law can’t be maintained in any democratic society.³

The Supreme Court has jurisdiction of judicial review under Article 32 and Article 136. Supreme Court has power to issue directions, writs or orders for the enforcement of fundamental right under Article 32(2). The nature and scope of Judicial review is to review the decision making process of Administrative authority. Judicial review depends on the facts of each case.⁴ Supreme Court may grant special leave appeal to any judgement, decree, determination, sentence or order passed by any tribunal or court under Article 136 of the constitution. The important mode of judicial review of administrative action is that court has the power to grant special leave to appeal against the decision of administrative tribunals and other agencies.

GROUNDS OF JUDICIAL REVIEW-

Judicial review of any administrative actions can be exercised on 4 grounds-

• Illegality- it can be said that the authority is acted illegally, if the administrative authority lacks jurisdiction or fails to exercise jurisdiction or abuse jurisdiction or exceed
• Lack of jurisdiction- court may review an administrative action if the authority exercised without its
• Excess of jurisdiction- when an administrative authority continues to exercise its power despite of exclusion of jurisdiction and entertain matter outside jurisdiction then court may review its action on the ground of excess of
• Abuse of jurisdiction- if an authority exercise its power in bad faith or malice way or make an error of the records which may result in misrepresentation of law, court may review its action.
• Failure to exercise jurisdiction- illegality,sub delegation of power without authority, or where it declines jurisdiction etc. may consider as failure to exercise jurisdiction and in such cases court may review its actions.

1. Irrationality- in case of “Associated Provincial Picture House Ltd. v. Wednesbury Corporation” it was determined that irrationality is a ground of judicial review and latter it known as “Wednesbury test”. The grounds of irrationality are-

• If it is without the authority of law
• If it is without any evidence
• If it is irrelevant
• If the decision of authority is arbitrary or unreasonable
• If the decision is done in bad faith

The principle of irrationality shares space with the rule of law, reasonableness and non- arbitrariness. If the action of the administrative authority violates any of these principles, it will directly infringe the Articles 14, 19 or 21 of the Constitution of India and court can quash such actions.⁵

2. Procedural impropriety- decision making procedure of administrative authority should be a fair procedure. Courts have stated that administrative authorities must follow the principle of natural Ridge V Baldwin⁶case is an example of procedural impropriety where it was held that the administrative functions are the discretionary power but the authorities has duty to act judicially.
3. Proportionality – The principle of proportionality implies that the court has to lookinto the advantages and disadvantages of the action of administrative authority. If the administrative action is disadvantageous and not in the public interest, such an action can be ground of judicial review. While reviewing an administrative action on the ground of proportionality, courts look into

• Whether the relative merits of different objectives or interest have been appropriately balanced or not?
• Whether, in any circumstances, the action under review was excessively restrictive or inflicted an unnecessary burden?

Administrative action is devoid of generality and is based on the subjective satisfaction of the officials and not the objective satisfaction. But this is a subjective satisfaction of the administrative authority should be based on the principle of natural justice. Judicial review is necessary to enforce discipline over the administrative action⁷. Though the administrative authority are bestowed with a wide discretionary power they must exercise their power in just, fair and reasonable manner. The main objective of administrative law is to create a welfare state and in no way in achieving this goal the citizens would be devoid of their rights by the action of administrative authority. There is a need that the administrative action should be in the favour of public interest.

The Supreme Court and the high court has power to keep a check and review the actions of administrative authority through various writs. The constitutional remedies available when the administrative authority exceeds their limit are- Under Article 32, the Supreme Court has the power to enforce the fundamental rights if the actions of the administrative authority are breaching it in any possible manner. The court has the power to issue writs as a remedial measures in a manner of Mandamus, Habeas Corpus, prohibition, quo warranto, and Certiorari. The High Court is empowered under Article 226 of the Indian constitution to enforce the fundamental rights and legal rights of the citizen. If the administrative action are infringing the rights of the power, the court has the power to interfere and take a strict action against the arbitrary exercise of administrative power. Judicial Review under Article 226 is directed towards the decision making process and not the decision per se.

The court is empowered under Article 300 to look into the matter of tortuous act against the government towards its servant⁸.

JUDGEMNTS FOCUSING ON JUDICIAL REVIEW OVER ADMINISTRATIVE ACTION

The scope of Judicial Review over administrative action can be understood from the following cases-

Minerva Mills Ltd. And Ors V Union of India and Ors⁹–Minerva Mill was a textile company which had its business set up in Karnataka. Central Government appointed a committee for making a detailed report analysing the functioning of the company. Relying on the committee report the government ordered National Textile Corporation to over the management of Minerva Mills. The nationalisation Act was inserted in the 9^th Schedule of 39^th Constitutional Amendment Act which means that it cannot be challenged before a court of law. 9^th Schedule is protected from the scope of Judicial Review. The issue was that the amendment could not be challenged as the 42^nd amendment act puts a bar on any challenge on the constitutional amendments in the court of law. The Supreme Court in this case has held that the creation of an independent judiciary by the constitution and the power of judicial review vested upon it helps to determine the legality of administrative action and validity of legislation. Judicial review provides time for ‘sober second thought’.

Barium Chemicals Ltd. V Company Law Board¹⁰– In this case an investigation order was passed by the Central Government against the petitioner company. Under Companies Act 1956, the government was empowered to issue such order if, ‘there are circumstances suggesting fraud on the part of management’. The Supreme Court held that it was condition precedent for the Central Government to state the circumstances which led to the impugned action so that the same could be examined by the court.

Pratap Singh V State of Punjab¹¹– In this case, the petitioner was a civil servant and he was granted a leave preparatory to retirement and initially the leave was granted. But later it was revoked and he was put under strict supervision, a departmental inquiry was instituted against him and he was removed from his service. The disciplinary proceedings against the petitioner was instituted at the whim of the Chief Minister to meet his personal vengeance and there was no legal ground to initiate proceedings against him, as alleged by the petitioner. The Supreme Court accepted the contention and held that the exercise of power to be mala fide and quashed the order. Where an authority is empowered with power, they have to act in a bona fide manner. There is no set guidelines on how to proof the mala fide intention it has to be ascertained depending upon the facts and circumstances of the case.

R.L. Arora V State of UP¹²–The State government was authorised under the Land Acquisition Act, 1894 to acquire land for a company if the government was satisfied that ‘such acquisition is needed for the construction of a work and that such work is likely to prove useful to the public’¹³. But contrary to this, the land was acquired and was used by private company for their construction purpose. The Supreme Court held that the sanction given by the government was irrelevant and extraneous consideration and it stands invalid.

The above discussed cases states that the administrative actions are subject to judicial review if the authorities acted in mala fide, arbitrary and unreasonable manner. The recourse to judicial review is always open for the aggrieved.

JUDICIAL INTERVENTION VIS-À-VIS ADMINISTRATIVE DECISION IN THE LIGHT OF PANDEMIC

The unprecedented global pandemic had a drastic effect on the country and life of the people. The two areas which grasped the focus was the medical crisis and the administrative action. The administration had become more flexible in its functioning when it comes to dealing with the COVID cases. The centre was accountable for its decision and policy making power as it would have affected the public at large.

The second wave was horrific and has cost lives of many people. Owing to this uncontrolled spread, the Centre has come with ‘Vaccination Policy’. The earlier vaccine policy was changed by the Central Government and the new policy was brought forth in which the government had decided to procure the vaccine for the State Government earlier. The earlier policy was the ‘Liberalized Vaccination policy’ which stated that there should be a prefixed quota for every state/UT based on their population between age group 18-44, of which 50 per cent would be available to the state /UT and 50 to the private hospitals. Also there is a lack of clarity with regard to intervention by the Central Government in the distribution process.

The Supreme Court had taken Suo Motu cognizance of the case In Re Distribution of Essential Supplies and Services during the Pandemic¹⁴wherein the court has passed an order on May 31, 2021. In Suo Motu cases, the court prima facie assumes that public interest is likely to suffer because of the action of the executive and the burden is on the executive to rebut the assumption. The bench emphasized on the need for uniform pricing policy and stated that dual pricing and procurement policy where the state has to procure the vaccine from the private manufacturer at a fixed price is prima facie discriminatory and the second was that the people under the age group 18-44 were excluded from the vaccination policy which was arbitrary and irrational. The court has also asked the centre- to furnish the court the history along with the authentic data of the vaccine procurement, secondly to produce before the court all the important documents which would state the reason behind the vaccine policy, and lastly explain how the budgetary allocation of Rs. 35,000 crores was utilized for vaccine procurement¹⁵. Additionally the court has also asked the centre to clarify why the budgetary allocation amount was not utilized for giving free vaccines for the category of 18- 44 years.

The court stated that the current policy is detrimental to the right to public health which is an integral part of Article 21 of the Indian Constitution. The Central Government should reconsider its vaccine policy of April and ensures that it withstand the scrutiny of Article 14 and Article 21. The court can exercise its jurisdiction to determine if the policy formulated by the administrative body conforms to the standard of reasonableness and protect the rights of all the person. ‘Judicial Review and soliciting constitutional justification for policies formulated by the executive is an essential functions, which the courts are entrusted to perform’¹⁶.

The revised vaccine policy came after the harsh criticism of the Supreme Court on June 7, 2021 where the new policy stated that the Union government will procure vaccine for the state – government as well and free vaccine scheme of the centre will be extended to age group 18-44 years.

CONCLUSION

Administrative law as one of the branch of public law aims to attain a welfare state following the concept of rule of law. In a welfare state the role of administration is crucial and complex. The welfare scheme and policy for the citizens are prepared and administered by the government. The administrative authority while exercising their powers has to ensure that they reconcile their action with the rights of citizens. They cannot exploit their powers which has been bestowed upon them on being an administrative authority. Administrative authority are accountable for their action. If they violates any rights of the people, the Judiciary will come to their rescue. The judicial review of administrative action is tantamount to maintain a balance between the separation of power and the abuse of power. Though there exist a separation of power where all the three organ of the government has to work independently.

But if this independent power is used arbitrarily then the Judiciary can intervene. Administrative authority has to consider the principle of natural justice while performing their functions. Natural Justice is a fundamental principle which states that the authorities should act in just and reasonable manner. If the unreasonableness and arbitrary action of the administrative authority contravenes the rights of individual or is arbitrary, the court has the power to interfere. In order to achieve a welfare state and to prevent abuse of power, Judiciary is playing an active role when it come grievances redressal through judicial review.

¹ 3^rd year, BA.LLB, KIIT School of Law.

²Keshavananda Bharti v. State of Kerala AIR 1973 SC 1461

³ Minerva Mills Ltd. v. Union of India (1980) 3 SCC 625

⁴SarojiniRamaswami v. Union of India (1992) 4 SCC 506

⁵Messey IP, Administrative Law, Judicial Review on Administrative Actions: Grounds, p 391, EBC 9^th Edition

⁶1963 AC 40

⁷Mohd Aqib Aslam, Judicial Review of Administrative Action an Overview,

⁸DeepaliAnand, ‘Judicial Review of Administrative Action’, Volume 2, PenAcclaims, Pg 6-7 [2018]

⁹1980 AIR 1789

¹⁰AIR 1967 SC 295

¹¹AIR 1964 SC 72

¹²AIR 1962 SC 764

¹³ C.K Takwani, Lectures on Administrative Law, pg 317 EBC 7^th Edition

¹⁴ LL 2021 SC 263

¹⁵Live Law, https://www.livelaw.in/columns/free-vaccines-for-all-a-powerful-impact-of-supreme-courts- judicial-review-175366 [last visited SEP 27, 2021].

¹⁶ Live Law, https://www.livelaw.in/top-stories/supreme-court-covid-vaccine-case-constitution-courts-not- silent-spectators-citizens-right-executive-policies-175102 [Last visited SEP 27, 2021]