Administrative Discretion and Judicial Review in India
The administrative authorities administer law enacted by legislature and perform executive functions. It also enact legislation when the legislative powers are dedicated to it by legislative and it also interpret the law and adjudicate dispute through administrative Tribunals. Without proper and effective control on individuals would be without remedy, even though injustice is done to them. A remedy available to individuals aggrieved by any action of administrative authority is judicial review by the way of prerogative remedies those are writs.
Discretionary powers in India
In public administration, administrative discretion refers to the flexible exercising of judgment and decision making allowed to public administrators. In India, the courts will interfere with the discretionary powers exercised by the administration in the following circumstances:
(1) Failure to exercise discretion; or
(2) Excess or abuse of discretion.
As a general rule it is accepted that courts have no powers to interfere with actions taken by the administrative authority powers. A.K Gopalan V/S State of Madras it was held that courts have no power to interfere with the order passed by the administrative authority in exercise of discretionary powers.
There are different types of discretionary powers conferred on the administration. They range from simple ministerial functions like maintenance of birth and death, register regulation of business activity etc.
The administration processes has discretionary powers and if complete and absolute freedom is given to it it will lead to arbitrary exercise of the powers. Administrative discretion can be controlled through judicial Review.
Judicial review is the basic feature of the Indian Constitution and therefore, cannot be abrogated even by an amendment of the Constitution. It is incorporated in
Articles 226 and 227 of the Constitution in so far as the High Courts are concerned. In regard to the Supreme Court Articles 32 and 136 of the Constitution embody the principle of judicial review. Article 32 is included in Part III as a fundamental right for enforcement of any of the fundamental rights conferred under Part III. The object of judicial review in that the authority does not abuse its powers and everyone receives just and fair treatment.
Minerva Mills Ltd vs Union of India
In this case it was observed that the constitution has created an independent judiciary which is vested with powers of judicial review to determine the legality of administrative action and validity of legislature.
Nature and scope of judicial review
The judicial review of administrative action is the most important development in the field of public law. In India, the doctrine of judicial review is the basic feature of the constitution. The power of judicial review is an integral part of the constitution. Without it there will be no government of laws and rule of law would become a distant dream. In judicial review the court is not concerned with the merits or correctness of the decision but with the manner in which decision is taken or order is made.
Article 32 and 226 of the constitution of India has designed for the enforcement of fundamental rights and for a judicial review of administrative actions, in the form of writs.
This is a writ in the nature of an order calling upon the person who has detained another to produce him before the court of law. In order to let the Court know what ground he has been confined in and to set him free if there is no legal justification for imprisonment. cold direct person or authority who has detained another person to bring the body of a prisoner to the court. So that court may decide validity, jurisdiction or justification of such detention.
Writ of Mandamus
It is an order issued by Court to public authority asking it to perform duties imposed upon it by constitution or another law.
Writ of mandamus is judicial remedy and nature of order from Superior Court and high court to any government Court cooperation or public authority to forebear from doing specific acts which you that body is obligated under law to do or to refrain from doing as the case may be.
Writ of Prohibition
This writ can be issued to judicial or Quasi judicial authority. When such authorities exceed to exercise jurisdiction not vested in it prohibition is remedy. In East India company V/S Collector of custom 1962, supreme Court observed this writ of prohibition is an order directing the inferior Tribunal forbidding it from continuing with a proceeding. Therein on the ground that proceeding is without or in excess of jurisdiction are contrary to the laws of land statutory or otherwise.
Writ of Certiorari
This writ is issued to an inferior Court or any other authority exercising judicial are Quasi judicial functions to investigate and decide legality and validity of order passed by it. Certiorari means to certify. it is required that judges of the inferior Court to certify record of any matter in that court and send it to the Superior Court for examination.
The object of self theory is to keep inferior courts and Quasi judicial authorities within the limits of their jurisdiction and if they act in excess of their jurisdiction their decision can be quashed by superior courts by issuing a writ.
an issuing writ person concerned is called upon to show the court by what authority he holds the office or Liberty. If the holder has no authority to hold office chick and outside from its enjoyment.
The object of co waranto is to control executive action in the manner of making appointment of public office against relevant statutory provision.
By the way of judicial control judiciary can be watched by administrative bodies.
But It is not intended to take away from administrative authorities the powers and discretion properly vested in them by law and to substitute courts as the bodies making the decisions. Judicial review is a protection and not a weapon.
Author: Pooja Pawar,
LLB from NBT law college Nashik