Law and You > Administrative Law > Judicial Review of Administrative Action
In this article, we shall study the concepts of administrative discretion and judicial review. Due to the acceptance of the philosophy of ‘welfare state’ and complex socio-economic conditions, a phenomenon generally discernible in almost all democratic countries is a considerable increase in governmental functions. The administrative authorities have acquired vast discretionary powers and generally, the exercise of such powers is left to the subjective satisfaction of the administration without laying down any statutory guidelines or imposing conditions on it. If complete freedom of action is given to the administration, it would lead to the exercise of powers in an arbitrary manner seriously threatening individual liberty. It is, therefore, necessary to control ‘discretion’ in some measure, to restrain it from turning into unrestricted absolutism.
Administrative Discretion:
In simple words, discretion means choosing from amongst the various available alternatives without reference to any predetermined criterion, no matter how fanciful that choice may be. It is also a choice to act or not to act on those choices. The Executive uses discretion in order to act upon the authority vested in them statutorily. The limits on discretion are also the limits on the power that the executive can have in a democracy. Administrative discretion has probably been subjected to more criticism than any other task of governmental administration. In many instances, this critical attitude reveals what appears to be a total misconception of the character of administrative discretion and the unavoidable necessity for its use in the execution of governmental policies.
In Judicial Discretion, jurist Aharon Barak observed: “Judicial discretion … is … a legal condition in which the judge has the freedom to choose among a number of options…..Where judicial discretion exists, it is as though the law were saying: I have determined the contents of the legal norm up to this point. From here on, it is you, the judge, to determine the contents of the legal norm for I, the legal system, am not able to tell you which solution to choose. …… It is as though the path of the law came to a junction, and the judge must decide – with no clear and precise standard to guide him – which road to take.”
In Rooke’s Case, Justice Edward Coke wrote: “.. and notwithstanding the words of the commission give authority to the commissioners to do according to their discretions, yet their proceedings ought to be limited and bound with the rule of reason and law. For discretion is a science or understanding to discern between falsity and truth, between wrong and right, between shadows and substance, between equity and colourable glosses and pretences, and not to do according to their wills and private affections….”
In Susannah Sharp v Wakefield 1891 AC 173 case, Halsbury J. said: “Discretion means, when it is said that something is to be done within the discretion of the authorities, that that something is to be done according to the rules of reason and justice, not according to private opinion; according to law and not humour. It has to be not arbitrary, vague and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man, competent to the discharge of his office, ought to confine himself.”
Thus ‘Discretion’ means choosing from amongst the various available alternatives but with reference to the rules of reason and justice and not according to personal whims. Such exercise is not to be arbitrary, vague and fanciful, but legal and regular.
Excess or abuse of discretion:
Judicial review of administrative action can be called in the failure to exercise discretion. Excess or abuse of discretion can arise inter alia, from the following circumstances. These several forms of abuse of discretion “overlap to a great extent’ and run into one another” and the task of separating them analytically in particular fact, situations may be almost impossible.
Acting Without Jurisdiction:
If administrative authority has no power to do a particular act, any purported exercise of such power is naturally void and non-existent in the eyes of law.
In R. v. Minister of Transport, (1934) 1 KB 277 case, the Court held that a minister has no power to revoke a licence, an order of revocation passed by him is ultra vires and without jurisdiction.
In Newspaper Ltd. v. State Industrial Tribunal, AIR 1957 SC 532 case, the Court held that the government has the power to refer an industrial dispute to a tribunal for adjudication, it cannot so refer matter which is not an industrial dispute.
Exceeding Jurisdiction:
An administrative authority is required to exercise discretion within the limits of the statute. An action or decision going beyond what is authorized by law is ultra-vires. The rule requires the interpretation of the specific words conveying and describing the extent of the power. Any act which is ultra vires is void.
In A.G. v. Great Eastern Railway Co., (1880) 5 A.C. 473 at 478 Case, Lord Selbourne said: “ought to be reasonably and not unreasonably understood and applied, and whatsoever may fairly be regarded as incidental to or consequential upon those things which the legislature has authorized ought not (unless express prohibited) to be held, by judicial construction, to be ultra-vires”
In London Country Council v. Attorney General, (1902) A.C. 165 case, the Local Authority was empowered to operate tramways. The local authority also carried a bus service. An injunction was duly granted against carrying out of bus services.
In Attorney General v. Falham Corpn., (1921)1 Ch. D. 440 case, the local authority was empowered by the statute to run baths and wash houses. An action of opening a public laundry by the corporation was held to be ultra-vires.
In J.K. Chaudhary v. R.K. Datta, AIR 1958 SC 722 case, the governing body of a college dismissed the principal, but the university concerned directed to reinstate him. Under the relevant statute, the university could interfere with the decision of the governing body in the case of a “teacher” which term, as interpreted by the Supreme Court, did not include the Principal. The university, therefore, acted without jurisdiction.
In Calcutta Electricity Supply Corpn. v. Workers Union, AIR 1959 SC 1191 Case, the relevant regulation empowered the management to award a claim for medical aid of employees, the Court held that it will be exceeding in its jurisdiction in granting the said benefit to the family members of the employees.
Arbitrary Action:
Irrelevant Consideration:
Judicial review of administrative action can be called in case of arbitrary Action. It the exercise of discretionary power, if it is influenced by considerations that cannot lawfully be taken into account, or by the disregard of relevant considerations, a court will normally hold that the power has not been validly exercised. Thus, a discretionary power must be exercised on: relevant and not irrelevant or extraneous considerations. Similarly, a power granted for one purpose is exercised for a different purpose, then that power has not been validly exercised.
If the ground of challenge is that relevant considerations have not been taken into account, the court will normally try to assess the actual or potential importance of the factors that was over-looked.
In R.L. Arora v. State of U.P., AIR 1962 SC 764 (the first Arora case) case, under the provisions of the Land Acquisition Act, 1894, the State Government was authorized to acquire land for a company if the government was satisfied that such acquisition is needed for the construction of work and that such work is likely to prove useful to the public. In this case, the land was acquired for a private company for the construction of a factory for the manufacturing of textile machinery. The Supreme Court held that even though it was a matter of subjective satisfaction of the Govt. since the sanction was given by the Government on irrelevant and extraneous considerations, it was invalid.
In Hukam Chand v. Union of India, AIR 1976 SC 789 case, under the relevant rule, the Divisional Manager was empowered to disconnect any telephone on the occurrence of a ‘public emergency’. When the petitioner’s telephone was disconnected on the allegation that it was used for illegal forward trading (Satta), the Supreme Court held that it was an extraneous consideration and arbitrary exercise of power by the authority.
In State of M.P. v. Ramshankar, AIR 1983 SC 374 Case, the services of a teacher were terminated on the basis of the police report that in the past, he had taken part in RSS and Jan Sangh activities. It was held that earlier political affinities of a government servant provided no basis for the government to terminate his services in a democratic republic like India.
Relevant Consideration not Taken into Account:
The general principle is that a person or authority entrusted with a discretion must direct himself properly in law so that if in the statute there are to be found expressly or by implication matters which he ought to have regard to, he must have regard to them. Thus, if an authority fails to take into account relevant considerations, then too, the exercise of the powers would be bad, in law.
Professor H.W.R. Wade has explained the principle as: “The court will intervene only in two situations. The first is where the authority has acted on grounds which the statute never intended to allow…the second is where the authority has failed to take proper account of something that the statute expressly or impliedly requires it to consider.”
In Union of India v. Rajender Singh Kadyan, AIR 2000 SC 2513 case, the Supreme Court observed: “It is a well-known principle of Administrative Law that when relevant considerations have been taken note of and irrelevant considerations have been eschewed from consideration and that no relevant aspect has been ignored and the administrative action has nexus to the facts on record, the same cannot be attacked on merit…”
In case the statute does not prescribe any considerations but confers power in a general way, the court may still imply some relevant considerations for the exercise of power and quash an order because the concerned authority did not take these into account. However, it is very difficult to prove that certain relevant factors have not been taken into account, unless detailed reasons are given in the impugned order itself from which it can be inferred.
In Ashadevi v. Shivraj, AIR 1979 SC 447 case, the petitioner was detained with a view to preventing him from engaging in transporting smuggled goods. The order of detention was based on the detenue’s confessional statement made before the Customs Authorities. But the facts having bearing on the question whether his confession was voluntary or not were not placed before the detaining authority. It was held that since the authority did not consider vital facts relevant to the detention of the petitioner, the detention order was bad.
Judicial Review:
Judicial review of administrative action is a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by the executive. Under Article 13 of the Indian Constitution, the State or the Union shall not make such rules that take away or abridges the essential rights of the people. If any law made by the Parliament or the State Legislature contravenes the provisions of this Article, shall be void. Thus Article 13 provides for judicial review of the rules, Acts, and actions taken under such rules and Acts.
There is a general rule that courts have no power to interfere with the action taken by the administrative authorities in the proper exercise of their powers. Judicial review is not really concerned with the conclusions of that process and whether those were ‘right’, as long as the right procedures have been followed. The court will not substitute what it thinks is the ‘correct’ decision. But it is concerned with the manner in which a decision has been passed by the administrative authority. This may mean that the administrative authority will be able to make the same decision again, so long as it does so in a lawful way.
Examples of the types of decision which may fall within the range of judicial review include:
- Decisions of local authorities in the exercise of their duties to provide various welfare benefits and special education for children in need of such education;
- Certain decisions of the immigration authorities and the Immigration and Asylum Chamber;
- Decisions of regulatory bodies;
- Decisions relating to prisoner’s rights.
When discretion vested in an administrative authority is not exercised in a proper, reasonable and lawful manner, it becomes the duty of the courts to step in to correct the situation and remedy the consequent injustice.
In Bobby Art International v. Pal Singh hoon, AIR 1996 SC 1846, The appellant, Bobby Art International, a film production company, made a film in 1994 titled “Bandit Queen” which was based on a true story about a village girl who was raped and brutalized, and who subsequently became a member of a violent criminal gang as a means of revenging herself upon society. The film contained explicit scenes of rape and nudity. In July 1995, the Censor Board indicated that it would grant the film an “A” certificate (films considered suitable for exhibition restricted to adults only) in terms of the Cinematograph Act, 1952 (the Act) but only on the condition that certain scenes were deleted or modified. The Act stated that “a film shall not be certified for public exhibition if, in the opinion of the authority competent to grant the certificate, the film or any part of it is against the interests of, inter alia, decency”. In addition, in 1991 the Indian Government had issued guidelines in terms of the Act which stipulated that film certification must ensure that “artistic expression and creative freedom are not unduly curbed” and that “certification is responsive to social change”. Issue was placed before a tribunal. By a unanimous order of the Tribunal, an “A” certificate was granted to the film without requiring deletion or modification of any scenes. Om Pal Singh Hoon, a member of the specific community portrayed in the film, filed a petition before the Delhi High Court seeking the quashing of the “A” classification and a restraint on the exhibition of the film in India on the ground that the film portrayed his community in a depraved way and lowered his self-respect. The Delhi High Court on the first instance quashed the “A” classification and ordered the Censor Board “to consider the grant of an ‘A’ certificate to it. The filmmaker challenged the order in the Supreme Court. The Supreme Court of India set aside the decision of the Delhi High Court which had restrained the screening of the movie, holding that the screening of a film cannot be prohibited merely because it depicts obscene and graphic events. The Court held that the scenes featuring nudity and expletives served the purpose of telling the important story and that the producers’ right to freedom of expression could not be restricted simply because of the content of the scenes.