Judicial Control Over Administrative Action Law Constitutional Administrative Essay

Published Date: 02 Nov 2017

Submitted To – Mr. Azeem Pathan

Date of Submission – 6th March 2013

Submitted By –

Anushree Modi

Roll No. – 69

Semester – VI

Section – A

Hidayatullah National Law University

Table of contents

Acknowledgements

03

Research Methodology

04

Objective

05

Introduction

06

Arbitrariness as a Ground of Judicial Control over Administrative Action

08

Arbitrariness in Law

08

Administrative Action

09

Judicial Review

09

Judicial Review of Administrative Action

11

Wednesbury Standard of Reasonableness

14

Conclusion

17

Bibliography

18

Acknowledgement

I would like to thank the University for providing me with the opportunity to complete this project. Moreover, I would like to thank my teacher, Mr. Azeem Pathan for providing me with the support which proved essential for the conclusion of the project.

I also whole heartedly would like to thank the library and computer lab staff as without their support and help, this project could not have seen the light of the day. I thank my friends and classmates for their valuable suggestions and precious guidance and all the other people who directly or indirectly helped me to complete this project. It is all these people who deserve the credit.

Research Methodology

The research methodology used in this project is analytical in nature as all the data and material has been collected primarily from internet.

Objectives

To explain what would be considered as arbitrariness in law.

To establish a connection between the wide concepts of administrative action and judicial review.

To show how arbitrariness has been used as a ground for judicial review for administrative action.

Introduction

The emergence of administrative law is the result of the growth of the activities that a government had to perform. Initially, states were the guardians of the law and survival was its prime motive. It was known as the police state. Due to the combination of industrial revolution and the beginning of the Marxist line of thinking, the state had to broaden its ambit and begin its welfare functions. The state’s functions became even more complicated and extensive during and after the world wars.

At this moment the state is responsible for not only survival, but also legislation, policy making, economic, social and cultural progress, growth and development, etc. Its functions are multi-dimensional and multi-faceted. In India, for example, how can a body of less than 600 people be expected to legislate, in detail, over matters concerning over 1 billion people?

The old concept of three major functions of the states, i.e. Executive, Judiciary and Legislative has now been negated. The doctrine of separation of powers is also no longer absolutely applicable.

There are whole new genres of functions cropping up, like quasi-judicial, delegated, ministerial, quasi-administrative, administrative, etc. these functions are not performed by the legislative, judiciary or the political executive. They are, more often than not, performed by the permanent executive, i.e. the bureaucrats.

Black’s Law Dictionary defines administrative law as: That branch of public law which deals with the various organs of the sovereign power considered as in motion, and prescribes in detail the manner of their activity, being concerned with such topics as the collection of the revenue, the regulation of the military and naval forces, citizenship and naturalization, sanitary measures, poor laws, coinage, police, the public safety and morals, etc. [1] 

The term arbitrary describes a course of action or a decision that is not based on reason or judgment but on personal will or discretion without regard to rules or standards. [2] 

Black’s Law Dictionary defines judicial review as "a court’s power to review the actions of other branches of government, especially the court’s power to invalidate legislative and executive actions as being unconstitutional" [3] .

It is necessary to distinguish between ‘judicial review’ and ‘judicial control’. The term judicial review has a restrictive connotation as compared to judicial control. It is supervisory, while judicial control is more corrective in nature. Judicial review is a subset of judicial control. Though, for the purposes of this particular topic, the terms have been used interchangeably.

Arbitrariness as a Ground of Judicial Control over Administrative Action

Arbitrariness in Law

In Article 14 of the Indian Constitution there is a mandate that the State shall not deny equality before law and equal protection of laws to any person within the territory of India. By incorporating in Article 14 the British doctrine of rule of law as propounded by Prof. Dicey and the "equal protection of law" clause of 14th Amendment of the U.S. Constitution, the framers of our Constitution had in their zeal infused extra vigor and vitality in the right to equality However, Parliament repeatedly tried to curtail the scope and vigor of Article 14 in order to carry out the welfare programs. [4] 

In 1974 the Supreme Court evolved the new doctrine that Article 14 is a guarantee against arbitrariness in E.P. Royappa v. State of Tamil Nadu. [5] Bhagwati, J. stated :

"Equality is a dynamic concept with many aspects and it cannot be 'cribbed, cabined and confined' within the traditional and doctrinaire limits. From the positivistic point of view equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies.... Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14...."

In Maneka Gandhi v. Union of India Bhagwati, J. went further and stated that:

"Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally and philosophically, is an essential element of equality or non-arbitrariness, pervades Article 14 like a brooding omnipresence."

Administrative Action

The field of administrative law is broadly identified as the law relating to the control of executive powers. In modern times the administrative process as a byproduct of intensive form of government cuts across the traditional forms of governmental powers and combines into one all the powers which were traditionally exercised by three different organs of the state. In Halsbery's Laws of England also it is stated that howsoever the term the Executive' or 'the Administration' is employed, there is no implication that the functions of the executive are confined exclusively to those of an executive or administrative character. The executive performs variegated functions, viz. to investigate, to prosecute, to prepare and to adopt schemes, to issue and cancel licences, etc. (administrative); to adjudicate on disputes, to impose fine and penalty, etc. (Judicial); to make rules, regulations and bye laws, to fix prices etc. (Legislative). Schwartz rightly states that rulemaking (quasi-legislative) and adjudication (quasi-judicial) have become the chief weapons in the administrative armoury.

It cannot be readily studied in water-tight compartments and needs a working knowledge of many principles, precedents and statutes. The functioning of the various ‘agencies and instrumentalities of the state’ should demonstrate a clear commitment to fairness, impartiality and proportionality while maintaining effective checks against arbitrariness and discrimination. [6] 

Judicial Review

The rule of law is the bedrock of democracy, and the primary responsibility for implementation of the rule of law lies with the judiciary. [7] 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. It is 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". [8] 

The initial years of the Supreme Court of India saw the adoption of an approach characterized by caution and circumspection. Being steeped in the British tradition of limited judicial review, the Court generally adopted a pro-legislature stance. This is evident from the rulings such as A.K. Gopalan v. State of Madras [9] , but however it did not take long for judges to break their shackles and this led to a series of right to property cases in which the judiciary was loggerhead with the parliament. The nation witnessed a series of events where a decision of the Supreme Court was followed by a legislation nullifying its effect, followed by another decision reaffirming the earlier position, and so on. The struggle between the two wings of government continued on other issues such as the power of amending the Constitution. [10] During this era, the Legislature sought to bring forth people-oriented socialist measures which when in conflict with fundamental rights were frustrated on the upholding of the fundamental rights of individuals by the Supreme Court. Between 1950 and 1975, the Indian Supreme Court had held a mere one hundred Union and State laws, in whole or in part, to be unconstitutional.

After the period of emergency the judiciary was on the receiving end for having delivered a series of judgments which were perceived by many as being violative of the basic human rights of Indian citizens [11] and changed the way it looked at the constitution. The Supreme Court said that any legislation is amenable to judicial review, be it momentous amendments to the Constitution or drawing up of schemes and bye-laws of municipal bodies which affect the life of a citizen [12] . Judicial review extends to every governmental or executive action - from high policy matters like the President's power to issue a proclamation on failure of constitutional machinery in the States like in S. R. Bommai v. Union of India [13] , to the highly discretionary exercise of the prerogative of pardon like in Kehar Singh and anr. v. Union of India and anr. [14] Â  or the right to go abroad as in Satwant Singh Sawhney v. D. Ramarathnam, Assistant Passport Officer [15] , case.

Judicial Review of Administrative Action

The power of the courts to examine legislative and administrative acts can be discussed under two conceptual categories. The first inquiry is that of examining the competence of a particular body to create laws, rules, regulations and guidelines among others. In constitutional adjudication, the higher courts are often called on to examine the ‘legislative competence’ of either the Parliament or State Legislatures by deciding whether a particular legislation was within their designated law-making powers, as per the scheme of the Seventh Schedule of the Constitution. In the domain of administrative law, the inquiry shifts to whether administrative bodies had the authority to create rules and regulations or to pass orders on a particular subject.

However, the much broader inquiry relates to the second form of ‘judicial review’ which involves the protection of fundamental rights. This empowers the higher judiciary to examine administrative acts as well as legislations and decide whether they are compatible with the fundamental rights guaranteed to all citizens under Part III of our Constitution. It is the Court’s role of protecting fundamental rights, which has lead to the evolution of some innovative remedies that have been created by harmoniously reading in long-established principles of administrative law.

In mediating the relationship between the state and its citizens, the Courts have given due weightage to principles such as proportionality, reasonableness and fairness. Furthermore, the principles of natural justice have also been recognised as dimensions of ‘personal liberty’ and thereby applied to a wide variety of administrative settings.

The administrative bodies are required to act in consonance with the legal regime and principles of natural justice in dealing in pursuance of their action.

For example, the rule of ‘audi alterem partem’, i.e. ‘no man should be condemned unheard’ had historically evolved in the context of criminal proceedings, wherein it was recognized that the accused should be given a fair hearing which would give an opportunity to contest charges and rebut the prosecution’s submissions. However, with the passage of time the ‘right to a fair hearing’ has also been allowed in the context of administrative proceedings where parties are likely to face adverse civil consequences. In State of Orissa v. Dr. Binapani Dei [16] , it was held that administrative orders which involve civil consequences have to be passed consistently with the rules of natural justice. Irrespective of the fact that any statute provides the option of a hearing or not, ordinarily such an opportunity must be given to the party unless the same is expressly excluded by the applicable statute. In fact, the various dimensions of ‘audi alterem partem’ such as the right to receive adequate notice of a proceeding that may result in adverse consequences, the opportunity to file responses in support of one’s positions and the right to be informed of all relevant materials have become essential features in most administrative processes. Through decisions such as Maneka Gandhi’s case (1978) and Central Inland Water Transport Corporation Ltd. V. Brojo Nath Ganguly [17] , the Supreme Court had taken the lead in strengthening the ‘right to a fair hearing’. Any exceptions to this norm need to be backed up by statutory provisions that clearly show a ‘compelling state interest’ which justifies the denial of a person’s right to be heard in an administrative proceeding.

In the course of tackling litigation against government departments and agencies, one frequently comes across cases where parties are aggrieved because there was an apprehension of bias with respect to the decision-makers. For example in service disputes, personnel at a lower level frequently apprehend bias on part of their superiors who exercise disciplinary or supervisory authority over them. In most of these cases, there may have actually been no intention on part of the decision-makers to target an individual or show undue prejudice. However, the mere fact of their supervisory status creates an apparent conflict of interest and it is better to have personnel from other departments and backgrounds to supervise disciplinary proceedings. It is extremely important for those who exercise supervisory authority in government departments to be familiar with the idea that ‘no man should be a judge in his own cause’. Hence, in the event that there are disputes and grievances arising out of routine administrative functions, the persons who are assigned to resolve them should not have any interest in the subject matter.

This may not be possible in all settings, but adherence to this principle should be the norm rather than the exception.

In many administrative decisions and orders, proper reasons are not adduced for a given course of action, for instance actions such as those relating to dismissals from service, the awarding of a contract of the selection of a bidder from among several competitors.

The absence of reasoned orders and the proper maintenance of records adds to the burden of courts who are later called on to examine such decisions. Sometimes, considerations of expediency may only permit the decision-makers to produce a brief record of reasons for choosing a particular course of action. However, the promotion of such practices is an effective check against arbitrariness and it makes it easier to resolve grievances that might arise in the future. In Siemens Engg. & Mfg. Co. of India Ltd. v. Union of India [18] , it was noted that a reasoned order is an essential requirement for the delivery of justice. I must emphasize here that judges and lawyers do not have a monopoly over the use of the principles of natural justice. These principles should be followed in all forms of governmental actions and diligent adherence to the same will hopefully reduce the scope for challenging them before the courts

It must be stressed here that while exercising ‘judicial review’, the courts do not exercise ordinary appellate powers. The intention is not to take away the powers and discretion that is properly vested with administrative authorities by law and to substitute the same with judicial determinations on specific facts. Judicial review is a protection and not an instrument for undue interference in executive functions. Any administrative action can only be set aside when it is arbitrary, irrational, unreasonable or perverse. In Delhi Development Authority v. M/s UEE Electricals Engg. Pvt. Ltd. [19] , the Supreme Court made the following observations:

"One can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground is "illegality", the second "irrationality", and the third "procedural impropriety". Courts are slow to interfere in matters relating to administrative functions unless decision is tainted by any vulnerability such as, lack of fairness in the procedure, illegality and irrationality. Whether action falls in any of the categories has to be established. Mere assertion in this regard would not be sufficient. The law is settled that in considering challenge to administrative decisions courts will not interfere as if they are sitting in appeal over the decision. He who seeks to invalidate or nullify any act or order must establish the charge of bad faith, an abuse or a misuse by the authority of its powers. It cannot be overlooked that burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility".

Wednesbury Standard of Reasonableness

Up to 1947 the law in England was that the courts could interfere only with judicial or quasi-judicial decisions and not with administrative decisions. This legal position changed after the famous decision of Lord Greene in Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., [20] which recognised that courts could indeed examine the process by which administrative decisions were arrived. The Wednesbury standard has often been misunderstood to mean that any administrative decision which is regarded by the Court as unreasonable can be struck down. However, the court’s primary concern should be with the fairness of the process by which an administrative decision is made and not necessarily with the substantive outcome of the same. A decision is unreasonable in the Wednesbury sense if:-

Firstly, it is based on wholly irrelevant material or on wholly irrelevant considerations,

Secondly, it has ignored relevant materials which should have been taken into consideration

Lastly it is so irrelevant that no reasonable man could ever have arrived at the same. This test made it clear that ordinarily an administrative action cannot be struck down merely because the judge disagrees with the final outcome of the administrative act. There must be a substantial degree of unreasonableness in the manner in which such an act took place.

However, the application of the Wednesbury standard has been haphazard and there are competing views on its proper application. The ‘doctrine of proportionality’ is another important basis for exercising judicial review. This entails that administrative measures must not be more drastic than what is necessary for attaining the desired result. The doctrine operates both in procedural and substantive matters. This principle contemplates scrutiny of whether the power that has been conferred on an executive agency is being exercised in proportion to the purpose for which it has been conferred. Thus, any administrative authority while exercising a discretionary power will have to necessarily establish that its decision is balanced and in proportion to the object of the power conferred. The doctrine of ‘legitimate expectations’ which has traditionally been used in litigation between private parties, has also been recognised in the public law setting. In the U.K., this concept made its appearance in Schmidt v. Secy. of State [21] , where it was held that an alien who had been granted permission to enter the U.K. for a limited period had a legitimate expectation for being allowed to stay for the permitted period. This doctrine is based on the premise that a person may have an expectation of being treated in certain way by an administrative authority even though he has no legally protected right to receive such treatment. In this respect, Wade has emphasized the importance of this doctrine in the following words:

"In many cases legal rights are affected, as where property is taken by compulsory purchase or someone is dismissed from a public office. But in other cases, the person affected may have no more than an interest, a liberty or an expectation … a ‘legitimate expectation’ which means reasonable expectation, can equally well be invoked in any of many situations where fairness and good administration justify the right to be heard."

However, it must be kept in mind that the legitimacy of a particular expectation and the related claim is a question of fact which can be decided in light of larger public policy related concerns. It is open to the government to frame and reframe its policies, which may result in denying certain individuals or a class of persons the benefits which they had been previously receiving.

Conclusion

Administrative law is a relatively new branch of law, spanning less than one and a half century. The need for its existence was denied in both United Kingdom and United States till the early forties.

In India, administrative law and its restrictions have been mainly created by the judiciary. There is no statute that governs the vast body of administrative law. So the judiciary has stepped up, and filled the loopholes in order to ensure that no individual’s right is infringed and that no authority oversteps.

Judicial control over administrative arbitrariness is the most important and the most effective form of control in India, to check the use of wide discretionary power given to the relevant authority.