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Introduction:
The most significant, fascinating- but complex segment of administrative Law is that
pertaining to judicial control of administrative action. The system of judicial review of
administrative action has been inherited from Britain. It is on this foundation that the
Indian courts have built the superstructure of control mechanism.

The two important aspects of administrative Law are:

a) the control-mechanism over the administration, and

b) the remedies and reliefs which a person can secure against it when his legal
right is infringed by any of its actions.

From both these points of view, courts play a much more meaningful role than does
either the Legislature or the administration itself. It is an accepted axiom that the real
kernel of democracy lies in the courts enjoying the ultimate authority to restrain the
exercise of absolute and arbitrary power. Without some kind of judicial power to
control administrative authorities, there is a danger that they may commit excesses
and degenerate into arbitrary bodies, and such a development would be inimical to a
democratic constitution and the concept of rule of Law. The whole Law of judicial
review of administrative action has been developed by judges on case-to-case basis.
Consequently, a thickest of technicality and inconsistency surrounds it.

Since court occupy a key position in the scheme of Indian Administrative Law, an
important question which needs to be discussed is, what are the techniques
available to the individual to bring his complaint or grievance against an
administrative action within the cognizance of the courts; and what tools subject to
what conditions, and on what basis, will the courts employ to afford relief to the
complainant? In what cases do the courts feel that redress to a complainant is called
for?

The techniques commonly used for the purpose are writs, appeals, reference to the
courts, injunctions, declarations, suits for damages for tortious actions of the
administration and civil servants, and for breach of contracts between the State and
the private persons, etc. Since the commencement of the constitution, the most
commonly used technique to bring an administrative action within the cognizance of
the courts has been the writ system.

Courts as final authority to determine legality of Administrative Action:

Since the commencement of the constitution, the most commonly used technique to
bring an administrative action within the cognizance of the courts has been to writ
system. Innumerable cases have taken place in this area and hundreds of cases
continue to be filed against the administration every year for seeking writs and it may
be no exaggeration to say that the writ process has over-shadowed all other
techniques of judicial review of administrative action.

Writ jurisdiction:

Articles32 and 226 of the Indian constitution make provisions for the system of writs
in the Country. Writs are issued by the Supreme Court and the High courts under the
provisions mentioned above respectively.

Jurisdiction of the Supreme Court:

1. Under Articles 32 and 136:

India has a hierarchical judicial system in which the Supreme Court of India is the
Apex Court. It is the final interpreter of Law and the ultimate court of appeal in all
civil, criminal and constitutional matters. It is also the final protection of peoples’
Fundamental Rights.

Judicial Review is thus not only an integral part of the constitution which cannot be
abolished or whittled down even by an amendment of the constitution. In any
democratic society Judicial Review is the soul of the system because without it
democracy and the rule of law cannot be maintained. Thus, extraordinary jurisdiction
of the court under Article 32 or 136 of the constitution cannot be taken away by
legislation or principle of election or estoppel or even by amending the constitution.

The Supreme Court is invested with the power of judicial review under Article 32.

Article 32 (1) guarantees the right to move the Supreme Court for the enforcement of
Fundamental Rights and Article 32 (2) invests the Supreme Court with the power to
issue directions, orders or writs for the enforcement of these rights.

Scope of Article 32: Article 32 provides a guaranteed, quick and summary remedy
for the enforcement of fundamental rights Any person complaining of infraction of
any of his Fundamental Rights by an administrative action can go straight to the
Supreme Court for vindication of his right, without being required to undergo the
dilatory proceedings from the lower to a higher Court as one has to do in any
ordinary litigation. The Supreme Court has thus, been constituted as the protector
and guarantor of Fundamental Rights.

Article 32 is itself a Fundamental Right and cannot, therefore, and diluted or whittled
down by legislation, and can be invoked even when a law declares a particular
administrative action as final.

Though the jurisdiction of the Supreme Court under Article 32 is confined to the
enforcement of Fundamental Rights yet if there is a clear abuse of process of the
Court petition is maintainable even if no violation of any Fundamental Right is
involved.

Case Law: - Express Newspapers Ltd. v. Union of India, AIR 1958 SC 578

Parliament enacted the Working Journalists Act, 1965 which provided for the
constitution of a Wage Board for fixing the rates of wages of the working journalists.
The Act made no specific provision requiring the Wage Board to give reasons for its
decision. This was challenged as unconstitutional on the plea that absence of an
obligation to give reasons rendered the petitioner’s right to approach the Supreme
Court nugatory because in the absence of reasons, the court would not be able to
investigate the validity of the order made by the board. Rejecting the contention, the
court held that the Act would have been invalid had it prohibited the wage board from
giving reasons for its decision. But as there was no such provision in the Act, and as
it left it to the board’s discretion to give reason for its decision or not, Article 32 was
not infringed in any manner what so ever.

A notable aspect of Article 32 is that it can be invoked only when there is an

administrative action in conflict with a Fundamental Rights of the Petitioner. It cannot
be invoked if no question of enforcing a Fundamental Right arises.

The question whether a particular administrative action infringes a fundamental right

or not and, therefore, whether a petition under Article 32 to challenge it is
maintainable or not, does at times raise complex issues. The classic case on the
point is Ujjam Bai v. state of Uttar Pradesh AIR 1962 SC 1621. A petition was filed in
the Supreme Court under Article 32 on the ground that a sales tax officer by
misconstruing a provision in a taxing statute had imposed sales tax on the petitioner
and thereby affected his Fundamental Right under Article 19(1) (g). The Supreme
Court held that since the order of assessment was made by the officer concerned
within his jurisdiction, a mere misconstruction of a statutory provision by him would
not justify a petition under Article 32, even though a Fundamental Right may be
involved. The court stated that under Article 32, it would quash an order of a quasi-
judicial body affecting a Fundamental Right if it acts under an ultra vires Law or
without jurisdiction, or if it wrongly assumes jurisdiction by committing an error on a
collateral fact, or if it fails to follow the principles of natural justice or to observe the
mandatory procedural provisions prescribed in the relevant statute. But a mere error
of Law committed by a quasi-judicial body cannot be cured under Article 32. This
ruling has come in for a good deal of criticism as it dilutes the efficacy of Article 32.
The Ujjam Bai ruling will not apply if the function is not quasi-judicial but executive.
An executive order is amenable to Article 32 jurisdiction of the Supreme Court, and it
is immaterial whether error of Law or error of jurisdiction is involved.

This view was expressed by the Apex court in Gulam Abbas V. State of Uttar
Pradesh, AIR 1981 SC 2198.

Article 136: This provision is in the nature of a residuary reserve power of judicial
review in the area of public law. It lays down that the Supreme Court may, in its
discretion, grant special leave to appeal from any judgment, decree, determination,
sentence or order in any cause or matter passed or made by any court or tribunal.
Thus, Article 136 does not confer a right of appeal on any party, but it confers a
discretionary power on the Supreme Court to interfere in suitable cases to advance
the cause of justice. Even in cases where special leave is granted, the discretionary
power vested in the court continues to remain with the court even at the stage when
appeal comes for hearing. Power under Article 136 of the constitution, on the one
hand, is an exceptional power to be exercised sparingly, with caution and care and
to remedy extraordinary situations of gross failure of justice, on the other hand it is
an overriding power whereunder the court may generously step in to impart justice
and remedy injustice.

Since the court has power to grant special leave to appeal against the decisions of
administrative tribunals and other agencies, it is now regarded as an important mode
of judicial review of administrative adjudicatory actions.

Article 136 also refers to tribunals, a term which necessarily refers to a statutory
body having the power to affect the rights of the people and the duty to act judicially.
A “tribunal” for the purpose of Article 136 must have some trappings of a court of law
which include the following:

I. That the proceedings before it must stand on an application in the nature of a

 plaint;
II. That it possesses the powers of a civil court in matters compelling the
attendance of witnesses, discovery and inspection;
III. That it allows cross-examination and legal representation.

IV. That it decides on the basis of evidence and according to law; and

V. That its members are qualified to be judges.

Normally in exercise of its powers under Article 136, the Supreme Court does not re-
examine the questions of fact unless the decision of the authority is patently
perverse and manifestly unjust. In Variety Emporium V. Mohammad Ibrahim Naina,
(1985) ISCC 251, though the Supreme Court reiterated that concurrent finding of
fact by courts below shall not be highly interfered yet added that this does not mean
that injustice must be perpetrated because it has been committed by the lower
courts. Therefore, if the concurrent decision is manifestly unjust it is not only right but
the duty of Supreme Court to do justice. In the same manner the Court would not
grant leave to appeal if other remedies of appeal and revision are available. But it is
not a rule without exception. “Finality clause” in a statute excluding judicial review
would not be a bar for the exercise of this jurisdiction by the Supreme Court. The
Court would not permit the plea of jurisdiction of the tribunal to be raised before it for
the first time, but where a question of law is involved the Court may allow it. In
Ujagar Singh V. state (Delhi Administration), popularly known as Vidya Jain Murder
case, the Supreme Court, rejecting the application of the special leave to appeal
under Article 136, observed that it is time to realize that the jurisdiction of the court to
grant special leave to appeal can be invoked in very exceptional circumstances.
These exceptional circumstances, for instance, may include the following situations:

(a) A question of law of general public importance; or

(b) A decision which shocks the conscience of the court.

These instances are the prime requisites for the grant of special leave.

Substantial question of law must be discernible from the pleadings. If pleadings are
contemptuous, irrelevant and incoherent and do not disclose any question of law,
much less a substantial question of law, SLP is liable to be dismissed in Limine.

Special Leave Petition may also be granted where against the impugned order no
appeal or revision lies.

Special Leave to appeal can be granted under Article 136 only against any judgment
or decree of any court or tribunal. If the authority is neither a court nor tribunal, no
leave to appeal can be granted.

In Manju Verma (Dr.) V. State of U.P. (2005) I SCC73, question before the court was
whether an order passed by the Chief Justice of the Allahabad High Court on

administrative side to transfer a case from Lucknow Bench to Allahabad Bench of

the High court is a decision of a “court or tribunal” The court held that the decision of
the Chief Justice at best can be said to be a decision of a “tribunal” The court
clarified that the expression “tribunal” as used under Article 136 does not mean
something as a “court” but includes, within its ambit, all adjudicating bodies,
provided they are constituted by the State and are invested with the judicial functions
except those established under any law relating to armed forces. Granting Special
Leave in the instant case, the Court observed that powers under Article 130 can be
exercised provided two conditions are present:

(i) The proposed appeal must be against a judicial or quasi-judicial order;

(ii)The decision must be of a court or tribunal.
In order to reach justice to the deprived and disempowered section of the society the
Apex Court in State of Karnataka V. A.B. Lugale 1995 Supp (4) SCC 469, held that
the power of judicial review under Article 32, 136, 226 can be exercised to
supplement changing social needs and values and felt necessities of the time having
regard to social inequalities, inequities and imbalances the law intended to remove.
However, the jurisdiction of the Court cannot be invoked lightly.

Keeping in view the congestion of cases before it, the Supreme Court itself has
suggested to the government to curtail its jurisdiction of Special Leave to appeal
under Article 136. But because Article 136 is also a Lawyer’s paradise, the more
always faced strong opposition from the Bar.

Jurisdiction of the High Court under Article 226 and 227:

Article 226:

Article 226 empowers the High courts to issue directions, orders or writs for the
enforcement of Fundamental Rights and for any other purpose also. Thus, the power
of judicial review of the High courts is wider than that of Supreme Court. The words
“for any other purpose” enable the High court to exercise their power of judicial
review for the enforcement of ordinary legal rights which are not Fundamental
Rights. The Jurisdiction of the High Court under Article 226 for the enforcement of
Fundamental Rights is mandatory whereas for the enforcement of ordinary legal
rights it is discretionary. The power of judicial review of the High Court under Article
226 is constitutional; therefore, no measure of finality given by the legislature to any
action or decision can take away this power. High Court is bound to follow the
technical procedure of the English Law in the matter of issuing a writ, hence a
petition will not be thrown out because the proper writ has not been prayed for. High
Court can issue a write to a person or authority having its location or residence within
the territorial jurisdiction of the court; or, if the cause of action either wholly or partly
arises within its territorial jurisdiction. Therefore, a High Court can issue a writ even
when the person or authority is located outside its territorial jurisdiction.

Power of High Court Supervisory under Article 226:

The power of the High court under Article 226 is discretionary and the power cannot
be exercised as a Court of Appeal. The Jurisdiction is supervisory in nature. It can
strike down an impugned rule and direct the authorities to reframe it but cannot itself
frame it. The power of judicial review under Article 226 is not directed against the
decision but is confined to the decision making process. High Court world interfere
into administrative decision if the same is mala fide, or made in contravention of
principles of natural justice, or prompted by extraneous considerations or is in
violation of any constitutional provisions, or is such that shocks the conscience of the
Court. High Court being a Court of plenary jurisdiction has inherent power to do
complete justice, between the parties similar to Supreme Courts’ power under Article
142 of the Constitution.

Article 227 of the constitution: -

Article 227 vests High Courts with the power of superintendence over all courts and
tribunals including the administrative agencies exercising adjudicatory powers. The
nature of this power is both administrative and judicial.

Article 227 though confers the right of superintendence over all courts and tribunals
throughout the territories in relation to which High court exercises jurisdiction but no
corresponding right is conferred upon a litigant to invoke the jurisdiction under this
Article as a matter of right. In fact, power of superintendence casts a duty upon a
High Court to keep the inferior courts and tribunals within the limits of their authority
and that they do not cross the limits, ensuring the performance of duty by such
courts and tribunals in accordance with the Law. Only wrong decision may not be the
ground for the exercise of jurisdiction under Article 227 unless the wrong is referable
to grave dereliction of duty and flagrant abuse of power by the subordinate courts
and tribunals resulting in grave injustice to any party.

Jurisdiction of the High Court under Article 227 is revisional and appellate, hence
limited and restrictive in nature. For this reason, it does not confer an unlimited
authority to correct all wrong order made within the jurisdiction of the courts and
tribunals below. Jurisdiction under Article 227, thus, may be exercised for want of
jurisdiction, errors of law, perverse findings, gross violation of the principles of
natural justice and where finding of fact is based on no evidence resulting in manifest
injustice.

In D.N. Banerji V. P.R. Mukherjee, Air 1953 SC 58, the Supreme Court observed that
Article 227 does not invest the High Courts with unlimited right to interfere with the
administrative adjudicatory process. This power is to be exercised to prevent grave
miscarriage of justice or flagrant violation of the Law.

The power of superintendence of the High Court under Article 227 is not confined to
administrative superintendence only, such power includes the power of judicial
review as well.

In Achutananda Baidya V. Prafulla Kumar Gayen, (1997) 5 SCC 76, the

Supreme Court held:

As regards administrative action the High Court can interfere in cases of erroneous
assumption of jurdiction or acting beyond its jurisdiction, refusal to exercise
jurisdiction, error of Law apparent on the face of the record, arbitrary or capricious
exercise of authority or discretion, a patent error of procedure, arriving at a finding
which is perverse or based on no material, or resulting in manifest injustice. As
regards subordinate court its findings of fact can be reviewed if based on no
evidence or upon manifest misreading of evidence or if its conclusions are perverse.

The jurisdiction under Articles 226 and 227 are separate and independent. The
power of judicial superintendence over inferior courts and tribunals which is intended
to keep them within bounds is not limited by technical rules which govern the
exercise of power under Articles 226. Thus, the power under Article 226 can be
exercised only on an application but power under Article 227 can be exercised either
on an application or suo motu. In the same proceeding the court can quash an order
under Article 227 and also issue further directions, like making further inquiries after
taking evidence, which is not available in the proceedings under Article 226. The
power under Article 227 may be exercised even in cases where no appeal or
revision lies to the High Court. However, where any alternative remedy is available to
the person, the Court may not exercise this power.

Judicial Review of Administrative Policy:

Norms of judicial review of administrative policy are more exacting and intrusive than
the legislative policy. In case of administrative policy there is more need of scrutiny
and balancing. Courts are very reluctant to strike down legislation unless there is a
clear violation of constitutional provisions. Court is not concerned with wisdom of the
legislature but only with its legislative competence, and Court will uphold the policy
irrespective of Court’s own views.

However, an administrative policy laid down by its rule making power or in exercise
of its executive powers can be reviewed if:

(i) It is unconstitutional;

(ii) It is beyond the powers of the parent Act or Regulation;

(iii) The delegate has acted beyond the power of delegation;

(iv) It is contrary to statutory policy or a larger policy.

Executive decisions cannot be termed as policy decisions and there is also no

presumption of its constitutionality. Courts will apply doctrine of Wednesbury
unreasonableness and doctrine of proportionality in judging the validity of an
administrative policy. The former says that a public authority acts unreasonably
when a decision it makes is “so absurd that no sensible person could ever dream
that it lay within the powers of the authority”. The later envisages that a public
authority ought to maintain a sense of proportion between his particular goals and
the means he employs to achieve those goals, so that his action impinges on the
individual rights to the minimum extent to preserve the public interest. This means
that administrative action ought to bear a reasonable relationship to the general
purpose for which the power has been conferred.
Compliance with the Court Orders:

In India the compliance jurisprudence is not so developed. There is no systematic

study about the impact and compliance with Court Orders. It is rightly said that the
real trouble of the litigant begins after the court has granted him a decree. Contempt
proceedings are too much for a poor litigant who has already suffered financially and
physically in a long drawn–out expensive litigation. However, at present, the law
does not provide any alternative. Therefore, the need for the development of a
system for judicial feedback on impact and compliance cannot be overemphasized.

For the satisfaction of a common man who has no strings to pull the Supreme Court
has clearly indicated that if the government does not obey its orders, in suitable
cases, the officer concerned may be imprisoned and the government property may
be attached. In Union of India V. Satish Chandra AIR 1980 SC 601, Krishna Iyer, J.
observed:

“We are in no mood to cordon willful procrastination nor suffer wanton stagnation in
administration as a ground of default in obeying court orders. Law does not respect
lazy bosses and “cheeky” evaders”.

Nevertheless, behaving in a pragmatic manner and taking into consideration the

paper-logged procedure and millions of babus and miles of red tape in governmental
functioning the court stressed that contempt power must be used sparingly if it is
convinced that there has been willful defiance or disobedience. Court has now
developed the concept of “continuous mandamus” to monitor compliance of its
directions. This is a writ of mandamus issued to a lower authority by the higher
authority in general public interest asking the officer or the authority to perform its
task expeditiously for an unstipulated period of time for preventing miscarriage of
justice.

Exhaustion of Remedies:

Ordinarily, availability of an adequate and efficacious alternative legal remedy is a

ground for the court to decline to exercise its writ jurisdiction. But this principle does
not apply to the enforcement of Fundamental Rights either under Articles 32 or 226.
The Supreme Court has stated in a number of cases that Article 32 being itself a
Fundamental Right, mere existence of an alternative remedy is not a good and
sufficient ground for it to throw out a petition for the enforcement of a Fundamental
Right. Once the Supreme Court is satisfied that the petitioner’s Fundamental Right is
infringed, it is not only its right, but its duty as well, to afford relief to him; the issue of
an appropriate writ in such a case under Article 32 is not a matter of court’s
discretion; it cannot refuse to give relief to him; and the petitioner need not establish
that he has no other adequate remedy, or that he has exhausted all such remedies
as the law provides without obtaining redress. Similarly, it has been held that an
alternative remedy is not a bar to move a writ petition in the High court to enforce a
Fundamental Right.

Where no Fundamental Right is involved:

Where no Fundamental Right is involved, it has been ruled that, normally speaking,
a High Court would not exercised its jurisdiction under Article 226 when an alternate,
adequate and efficacious legal remedy is available and the petitioner has not availed
of the same before coming to the High Court. Article 226 is silent on this point; it
does not say in so many words anything about this matter, but the courts have
themselves evolved this rule as a kind of self-imposed restriction on their writ
jurisdiction under Article 226. The rule has been justified on the ground that persons
should not be encouraged to circumvent the provisions made by a statute providing
for a mechanism and procedure to challenge administrative action taken thereunder.
The courts have also stressed the point that the remedy under Article 226 bring
discretionary, the High Court could refuse to grant a writ if it is satisfied that the
petitioner could have an adequate or suitable relief elsewhere.

In the case of Modern Industries V. SAIL AIR 210 SC 1625, the Supreme Court
observed that the interest on delayed payments to Small Scale and Ancillary
Industrial Undertakings Act, 1993 provides a statutory remedy of appeal against the
award. Since the buyer did not avail of the statutory remedy and instead challenged
the award before the High Court in extraordinary jurisdiction under Article 226 of the
constitution by-passing statutory remedy, was held to be not justified.

In the case of Kunga Nima Lepcha V. State of Sikkim AIR 210 SC 1671, the
Supreme Court observed that it has copious powers under Article 32 of the
constitution for the purpose of enforcing the rights enshrined in Part III of the
constitution. Over the years, the Supreme Court has creatively expanded its writ
jurisdiction to provide redress against the infringement of Fundamental Rights and
concurrently relied on Article 142 to do complete justice in the matters before it.
However, it was observed that the remedies evolved by way of writ jurisdiction are of
an extraordinary nature. They cannot be granted to provide redressal in situations as
a matter of due course where statutory remedies are available. It is quite evident that
the onus is on the petitioners to demonstrate a specific violation of any of the
Fundamental Right in order to seek relief under writ jurisdiction.

Alternative remedy no bar in certain situations:

Existence of an alternative remedy is not a constitutional bar to High Court’s

jurisdiction but is a self-imposed restriction. The alternative remedy would not
operate as a bar at least in three contingencies. These are:

(i) where the writ petition seeks enforcement of any Fundamental Right,

(ii) where there is violation of the principles of natural justice, and

(iii) where order or proceedings are wholly without jurisdiction or the vires of an
Act is challenged.

When discretionary jurisdiction under Article 226 is exercised:

Existence of an alternative remedy is one of the factors to be considered while

exercising its discretionary jurisdiction under Article 226.Where a party has initiated
an alternative remedy but has not pursued it, the High Court can call upon the party
to elect either the alternative remedy or the writ petition. If a party has withdrawn the
alternative remedy by the time the petition is heard, the same should not be thrown
out, if writ petition is otherwise maintainable. However, where a dispute relates to
enforcement of a right or obligation created under a statute and the statute provides
a remedy, the High court may not deviate from the general rule.

Similarly, where the dispute between parties is contractual and agreement contains
an arbitration clause, the writ petition would not be entertained.

Where a question of Law is raised which is of fundamental character the writ petition
should be entertained instead of leaving the matter to statutory appeal.
Where recourse to alternative remedy is onerous involving deposit of huge amount
and the demand is time-barred, interference by the High Court on merits is
necessary.

Conclusion:

Judicial review of administrative action is perhaps the most important development in

the field of public law in the second half of this century. Judicial review is a great
weapon in the hands of Law Courts. It comprises the power of a court to hold
unconstitutional and unenforceable any Law or order based upon such law or any
other action by a public authority which is inconsistent or in conflict with the basic
Law of the Land.
By judicial control is meant the power of the courts to examine the legality of the
officials’ act and thereby to safeguard the fundamental and other essential rights of
the persons. The underlying object of the 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
name of law. The role of judiciary in protecting the citizens against the excess of
officials has become all the more important with the increase in the powers and
discretion of the public officials in the modern Welfare States. But the courts cannot
interfere in the administrative activities of their own accord. They can intervene only
when they are invited to do so by any person who feels that his right has been
abrogated as a result of some action of the public official. Secondly, the courts
cannot interfere in each and every administrative act, as too much judicial action
may make the official too much conscious and every little of it may make them
negligent of the rights of the citizens. In the words of M. L. D. White: “At one
extreme, the vigour of judicial control may paralyse effective administration, at the
other the result may be offensive bureaucratic tyranny, exactly where the balance
may be best struck is a major problem of judicial– administrative relationship”.