Judicial review of administrative action is the most important development in field of public law in second half of this century.
In India the doctrine of judicial review is the basic feature of our constitution. Judicial review is most helpful method in hand of judiciary for maintainance of rule of law. Judicial review is touchstone of constitution. The supreme Court and high Court are ultimate interpret of constitution. It is their duty to find out the extent and limit of power of coordinate branches that is executive and legislature. And also to see that they do not exceed their limit.
Judicial review is thus touchstone and essence of rule of law. The power of judicial review is an integral part of our constitutional system and without there will be no government of laws.
The judicial review is basic and essential features of constitution and it cannot be abrogated without affecting the basic structure of constitution.
In judicial review the court is not concerned with merits and correct ness of decisions but the manner in which the decision is taken or order is made.
The area where judicial power are limited to keep the executive and legislature within the scheme of division of powers between three organ of state.
The ultimate scope of judicial review depends upon the facts and circumstances of each case. The dimensions of judicial review must remain flexible.
Limitations of Judicial Review
Judicial review has certain inherit limitations. It is suited more for adjudication of disputes than for performing administration functions. It is for execution to administer the law and the function of judiciary is to ensure that government carries out its duty in accordance with provisions of constitution. The duty of courts is to confine itself to the question of legality. It also have to consider whether the decision making authority exceed its power, commitment of error of law, violated rule of natural justice, reached a decision which no reasonable man would have reachor otherwise abused its power.
The court is expected to act as court of appeal and it can examine whether the decision making process was reasonably, rational not arbitrary or not violative of Article 14 of constitution. The parameter of judicial review must be clearly defined and never exceeded. Unless the order passed by administrative authority is unlawful or unconstitutional power of judicial review cannot be exercise. An order of administration may be right or wrong.
There are two overriding considerations which are responsible to narrow the scope of judicial review
1) It is not expected of a judge to act as superboard or like a schoolmaster substitute its judgement for that of administrate.
2) Paucity of time It us pressure of judicial calendar which leads to affirmance of vast majority of agency decisions.
In this case the supreme Court held that the judicial power of review is exercise in executive functioning. One is the ambit of judicial intervention the other covers the scope of court ability to quash the administrative decisions on its own merits.
Discretionary power and judicial review
Discretionary power conferred on the administration are of different types. They may range from simple mistery function like maintaining of birth and death register to power affects the right of individuals that is acquisition of property, regulations of trade industry or business, investigate.
As the general rule it is accepted that courts have no power to interfere within the actions taken by administrative authority in exercise of Discretionary power.
Thus in almost all the democratic countries it is accepted that discretion conferred on administration. To keep the administration within the bounds the court have evolved certain principles and imposed some conditions and formulated certain tests and taking recorse to these principles they effectively control the abuse or arbitrary excercise of Discretionary power by administration.
In india where in written constitution the power of judicial review has been accepted as the heart and core of it and which is treated as basic and essential features of constitution and the safest possible safeguard against abuse of power by an administrator authority the judiciary cannot be deprive of said power.
The duty of the court is to confine itself the question of legality
1) Whether the decision making authority exceeds its power
2) Commit an error of law
3) Commit breach of rules of natural justice
4) Reached a decision where no reasonable tribunal would have reached for
5) Abuse its power
In india the courts will interfere with the Discretionary power excercise by administration in following circumstances
1) Failure of excercise discretion
2) Excess or abuse of discretion
An administrate authority must in exercise the power within the limits of statute and if exceeds those limits the action will be held ultravires. For example if an officer is empowered to grant a loan of rupees 10000 in his discretion for a particular purpose and if he gran the loan of 20000 then he exceeds his power or jurisdiction and the entire order is ultravires and void on that ground.
The administrative authority cannot take into account irrelevant consideration. Similarly if the authority fails to take into account the relevant consideration then also excercise of power would be bad. But it is very difficult to prove that the certain relevant factors have not been taken into consideration by the authorities unless detailed reasons are given in order itself from which it can be inferred.
Sometimes a pecuniary situation arise here the order is not wholly based on irrelevant consideration. It is based partly on relevant and existent considerations and partly on irrelevant and non considerations. There is no unity in judicial pronounce ment on this point but in some case it was held that the proceedings were not held to be bad. It is submit to proper approach be considered.
In simple words it act like watch dog on legislative and executive branch of government.
Author: Mohak Jain,
Ideal Institute of Management and Technology Karkardooma