Judicial Review of Administrative Action Pattern of Failure

By Swati Duggal, Punjab Academy

Editor's Note:Judicial Review is the ability of the Supreme Courtroom or High Court to examine an executive or legislative human activity and to invalidate that act if it is contrary to constitutional principles. This power has been incorporated in the Constitution itself and cannot be done away with since it is a basic feature. The researcher has analysed the ground of judicial review. Though there is no clarity regarding the same through an analysis of case constabulary the researcher has attempted to make it at sure accepted ground for such a review to accept place. In Council of Civil Services Union v Minister of Civil Service the grounds of judicial review were stated to be jurisdictional error, irrationality, procedural venial, proportionality and legitimate expectation.

Jurisdictional errors are bailiwick to review in cases when there is a lack of jurisdiction, excess of jurisdiction or an abuse of jurisdiction. If an administrative activeness appears to be irrational and satisfies the Wednesbury Test that evolved after the case of Associated Provincial Moving picture House v. Wednesbury then it tin can exist reviewed. An activity that is non in compliance with procedures and which is not reasonable, goes beyond what is desirable can be reviewed. Lastly, if a sure police force leads to the nascency of a legitimate expectation in the mind of a person which is subsequently breached and then the activeness leading to such a breach can be reviewed. Relevant case laws have been used to shed light on how this concept has evolved and more specifically they as well provide clarity regarding in what circumstances such discretion can be exercised.  The inquiry paper finally goes on to acknowledge that such a power can be dangerous every bit no checks can be imposed upon it other than self imposed subject area.

Introduction

In contempo times, many authoritative decisions taken by the Government are being struck down either on avoidable grounds of illegality or procedural irregularity or some other grounds which could have been validly averted. 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 insofar as the High Courts are concerned. In regard to the Supreme Courtroom Manufactures 32 and 136 of the Constitution embody the principle of judicial review. Commodity 32 is included in Office Iii every bit a fundamental right for enforcement of whatsoever of the key rights conferred nether Part Three. More often than not, judicial review of whatever authoritative activity tin be exercised on iv grounds viz,

a)     Jurisdictional Error

b)     Irrationality

c)     Procedural impropriety

d)     Proportionality

due east)   Legitimate Expectation

These grounds of judicial review were developed by Lord Diplock in Council of Civil Service Union 5. Minster of Civil Service[i]. Though these grounds of judicial review are not exhaustive and cannot be put in watertight compartments yet these provide sufficient base of operations for the courts to exercise their review jurisdiction over administrative activity in the interest of efficiency, fairness and accountability.

Jurisdictional Error

The term "jurisdiction" means "power to decide". The jurisdiction of the administrative dominance depends upon facts the beingness of which is necessary to the initiation of proceedings & without which the act of the Court is a nullity. These are called "jurisdictional facts". This basis of judicial review is based on the principle that administrative authorities must correctly empathize the law and information technology limits earlier any action is taken. Court may quash an administrative activity on the ground of ultra vires in following situations.

Lack of Jurisdiction:

Information technology would be a case of "lack of jurisdiction" where the tribunal or dominance has no jurisdiction at all to pass an guild. Court may review an authoritative action on the ground that the say-so exercised jurisdiction which did not belong to information technology. This review ability may be exercised inter alia on following grounds:

i)       That the police force under which authoritative authority is constituted and exercising jurisdiction is itself unconstitutional.

ii)    That the dominance is not properly constituted as required past police force.

iii)  That the authority has wrongly decided a jurisdictional fact and thereby assumed jurisdiction which did non belong to information technology.

In Rafiq Khan vs. State of U.P [two]., Panchayat Raj Human action, 1947, did not empower the Sub- Bounded Magistrate to alter the order of conviction & sentence passed past a Panchayat Adalat. He could either quash the entire social club or cancel the jurisdiction of the Panchayat Adalat. The magistrate maintained the conviction of the defendant in respect of ane of the offences only & quashed the conviction in respect of other offences. The Allahabad Loftier Court quashed the conviction in respect of other offences by a writ of certiorari.

In R. vs. Minister of Transport [iii], the Government minister had no power to revoke a license. The order of the minister revoking the license, was thus, held to exist passed without jurisdiction & hence ultra vires.

Excess of Jurisdiction:

This covers a situation wherein though authority initially had the jurisdiction but exceeded information technology and hence its deportment become illegal. This may happen nether following situations:

i)                    Continue to exercise jurisdiction despite occurrence of an outcome ousting jurisdiction.

2)                  Entertaining matters outside its jurisdiction.

In R vs. Richmond upon Thames Council ex parte McCarthy & Stone Ltd [4]., the local planning authority implemented a scheme of charging 25 pound for breezy consultation betwixt corporation officers & holding developers. The House of Lords held that imposition of the charge was unlawful. Such a charge was neither incidental to the planning function of the local authority, nor could a accuse be levied on the public without statutory authority. The quango had misconstrued its powers & appropriately, acted ultra vires.

Abuse of Jurisdiction:

All administrative powers must be exercised fairly, in good religion for the purpose information technology is given, therefore, if powers are abused it will be a ground of judicial review. In the following situations abuse of power may arise:

• Improper purpose:

Administrative power cannot be used for the purpose it was not given. In Attorney General vs. Fulham Corporation [v], the authority was empowered nether the statute to establish washhouses for the non-commercial use of local residents. The Corporation decided to open a laundry on a commercial basis. The Corporation was held to accept acted ultra vires the statute.

• Fault apparent on the face of the record :

An mistake is said to be apparent on the confront of the tape if information technology can be ascertained merely by examining the record & without having to take recourse to other show. In Syed Yakoob vs. K.Due south. Radhakrishnan [half dozen], the Supreme Court explained, there would be a case of mistake of law credible on the face of the tape where the conclusion of law recorded past an junior tribunal is:

1. Based on an obvious misinterpretation of the relevant statutory provision,
2. In ignorance of it,
3. In disregard of it,
4. Expressly founded on reasons which are incorrect in police

• Not-consideration of relevant material:

In exercising discretion, a decision-maker must have regard to relevant matters & disregard irrelevant matters. In R vs. Somerset County Council, ex p Fewings [vii] the local authority decided to ban stag hunting on land owned by the quango & designated for recreational purposes. The Court of Appeal accepted that in some circumstances, stag hunting could legitimately be banned. Animal welfare & social considerations were relevant matters to take into business relationship.

• In bad faith:

Where a decision –maker has acted dishonestly past claiming to have acted for a particular motive when in reality the decision was taken with some other motive in mind, he may exist said to have acted in bad faith. In R vs. Derbyshire County Quango, ex p Times Supplements [viii], the local education authorities were under a duty to advertise vacancies in a manner probable to bring information technology to the observe of persons who are qualified to fill the post. Articles published in that newspaper were critical of the education authorisation. The quango decided to terminate advertising vacancies in The Times despite the fact that these publications were read by the greatest number of potential applicants. The papers sought judicial review. DC held that the quango's decisions had been made in bad faith. They had non been taken on educational grounds just were motivated by vindictiveness towards the newspaper.

• Fettering discretion:

An authority may deed ultra vires if, in the exercise of its powers, it adopts a policy which effectively ways that it is not truly exercising its discretion at all. In H Lavender & Sons Ltd vs. Minister of Housing & Local Government [ix], Lavender had applied for planning permission to extract sand & gravel from high grade agricultural land. The local planning authority refused permission & lavender applied to the Minister of Housing & Local Government. The appeal was dismissed; the Minister of Housing & Local Government being persuaded by the Minister of Agriculture that such land should be preserved for agronomical purposes. The conclusion was set aside. The government minister was entitled to have a policy merely, in reality the minister's determination had been based solely on another government minister's objection. The government minister, therefore, did not open hi mind to Lavender'south application & thereby fettered his discretion.

Irrationality (Wednesbury Test)

A general principle which has remained unchanged is that discretionary power conferred on an administrative dominance is required to be exercised reasonably. A person in whom is vested a discretion must exercise his discretion upon reasonable grounds. A decision of the administrative authority shall be considered every bit irrational if it is so outrageous in its disobedience to logic or accepted norms of moral standard that no sensible person, on the given facts and circumstances, could get in at such a conclusion. Irrationality as a footing of judicial review was developed by the Court in Associated Provincial Picture Business firm 5. Wednesbury [x], afterward came to exist known as "Wednesbury test" to make up one's mind 'irrationality' of administrative action. The local potency had the ability to grant licenses for the opening of cinemas field of study to such conditions as the authority 'thought fit' to impose. The authority, when granting a Sunday licence, imposed a status that no children under the historic period of 15 years should exist admitted.

The applicants argued that the imposition of the condition was unreasonable and ultra vires the corporation's powers. Stating that the Court should not substitute its view for that of the corporation the court observed: interference would not exist permissible unless it is found that the decision was illegal or suffered from procedural improprieties or was one which no sensible decision maker could, on the material before him and within the framework of law, accept arrived at it. The Court would consider whether relevant matters were non taken into business relationship or whether the action was non bona fide or whether the decision was absurd.

In Roberts vs. Hopwood[xi], the council, in adopting a policy of paying higher wages than the national average for its workers, was unreasonable, for the discretion of the council was limited by police. Information technology was non free to pursue a socialist policy at the expense of its rate payers.

In R 5 Broadmoor Special Hospital Authority ex parte S [xii], the Court of Appeal, dismissing an appeal from an application for judicial review, ruled that the infirmary'southward policy of conducting routine and random searches of patients without their consent was lawful. The applicants had claimed that the ability to search could non be implied into the Mental Health Human activity 1983, and that, if such power existed, it was irrational and its practice unlawfully fettered the hospital's discretion because it was not subject to any exception or medical grounds. The Court of Appeal upheld the finding of an unsaid power of search, ruling that it was consistent with a 'cocky-evident and pressing need' to enable the hospital to fulfill its primary function of treating patients and ensuring a safe and therapeutic environment for both patients and staff. Since the infirmary's policy was in the interests of all, it had to be permitted to override medical objections raised in individual cases.

A decision past an authority may also exist unreasonable if atmospheric condition are attached to the decisions which are difficult or impossible to perform. Where an authority makes a determination which is in role good, but in part bad the courtroom may either invalidate the unabridged determination or sever the bad part of the decision from the good.

The decision in Agricultural Horticultural and Forestry Industry Preparation Board five Aylesbury Mushrooms Ltd [xiii] illustrates the principle. There, the Training Lath was under a mandatory statutory duty to consult certain organizations and trades unions before reaching a decision. The Board failed to consult the Mushroom Growers Association. The court held that the decision was proficient, and could remain, in relation to those associations which had been consulted, but bad in relation to the Mushroom Growers Association, and that the Lath had a duty to reconsider their decision afterwards consultations with the Association. In applying this test courtroom would not apply 'strict scrutiny' and would not judge adequacy or sufficiency of the material unless fundamental rights are violated, and would non substitute its judgment with the judgment of the administrator unless the conclusion is perverse. If the activity of the administrative authority violates whatever of these principles court can quash such action as violative of Manufactures fourteen, 19 or 21 of the Constitution.

The Delhi High Court in Neha Jain vs. University of Delhi [xiv], holding that that counterfoil of examination & debarring the pupil for side by side exams as disproportionate punishment for adopting unfair ways in the examination, substituted cancellation of only one newspaper as sufficient punishment Since the bones requirement of article fourteen is fairness in action of the State, and non-arbitrariness in essence and substance, being the heart of fair play, judicial interference with policy decision is permissible:

• If the decision is shown to exist patently capricious, discriminatory or mala fide[xv].
• If it is found to be unreasonable or violative of any provision of the Constitution or any other Statute[sixteen].
• If it can exist said to suffer from whatever legal infirmity in the sense of its being wholly beyond the scope of the regulation-making power[xvii].
• If it is demonstrably capricious or arbitrary & not informed past any reason[xviii].

Irrationality applied to a decision which is so outrageous in its disobedience of logic that no sensible person who had applied his mind to the question to be decided would have arrived at it.

Procedural Impropriety

Failure to comply with procedures laid down by statute may invalidate a determination. Procedural Impropriety is to encompass ii areas: failure to observe rules laid down in statute; and a failure to discover the basic mutual law dominion of natural justice. In Bradbury v Enfield London Borough Quango [19], the Education Deed 1944 provided that, if a local education authority intends to establish new schools or cease to maintain existing schools, notice must be given to the minister, following which, public observe must exist given in order to permit interested parties to comment.  The Council breached the requirement of public find and the plaintiffs sought an injunction. The Council claimed that educational anarchy would occur if they were required to comply with the procedural requirements. That plea met with trivial sympathy in court.

In the Aylesbury Mushroom instance [xx], the courtroom ruled that the statutory requirements of consultation with organizations or associations which represented substantial numbers of people could not be avoided by consultation with the largest representative body of all agricultural horticultural and forestry industry, workers – the Nation Farmers' Union. The Board claimed that consultation with the Nation Farmers' Union involved consultation with all smaller representative bodies; a claim rejected past the court. For true consultation to take identify in accord with law in that location must be communication with the representative organizations and the opportunity given of responding thereto, without which 'at that place can be no consultation'. In Aylesbury Mushroom, the Mushroom Growers Association was non bound by the lodge, although the order remained effective equally against those who were consulted. It is a fundamental requirement of justice that, when a person's interests are affected by a judicial or authoritative conclusion, he or she has the opportunity both to know and to empathize any allegations made, and to make representations to the decision maker to run into the allegations. The principles of natural justice which are imposed by the courts incorporate ii elements:

• Audi alteram partem (hear both sides)
• Nemo judex in causasua (at that place should be an absence of bias with no person being a judge in their own cause).

The essence of justice lies in a fair hearing. The rule confronting bias is strict: it is non necessary to show that bodily bias existed; the merest appearance or possibility of bias will suffice. The suspicion of bias must, notwithstanding, be a reasonable one.

In Pinochet example [xxi], extradition proceedings against the old Chilean Head of State were challenged on the footing that 1 of the Law Lords, Lord Hoffmann, had links with Amnesty International, the charitable pressure group which works on behalf of political prisoners around the earth, which had been immune to present evidence to the court. It was accustomed that there was no actual bias on the part of Lord Hoffmann, but there were concerns that the public perception might be that a senior judge was biased. As a outcome, the proceedings were abandoned and reheard by a new bench of vii judges.

The courts have long been struggling with the distinction between 'judicial' and 'administrative' functions in an attempt to bring the ever- expanding administration of regime departments nether judicial control. Two lines of thought were apparent. The beginning emphasized the distinction between a torso which was exercising powers under restrictive rules and a body which was conferred with a wide measure of administrative discretionary ability. The second line of idea placed dandy weight on the absence of whatsoever true stardom between judicial and administrative functions, regarding the sometime equally but a specialized form of the latter.

Ridge 5 Baldwin [xxii]represents a archetype case which reveals judicial insistence on procedural fairness irrespective of the type of body determining a question.  Ridge, the Master Constable of Brighton, had been suspended from duty following charges of conspiracy to obstruct the course of justice. Despite Ridge having been cleared of any allegations against him, the Judge made comments which were critical of Ridge'south carry. After, Ridge was dismissed from the force.  Ridge was not invited to nourish the meeting at which the decision to dismiss him was reached, although he was subsequently give an opportunity to appear before the committee which confirmed its earlier conclusion. Ridge appealed to the Domicile Secretary, who dismissed his appeal. Ridge then sought a declaration that the dismissal was ultra vires, on the basis that the committee had violated the rules of natural justice. The decision in Ridge 5. Baldwin is also important considering it emphasizes the link between the right of a person to be heard and the right to know the case brought against them.

Proportionality

Proportionality means that the administrative action should not be more than drastic than it ought to be for obtaining desired result. Proportionality is sometimes explained by the expression 'taking a sledgehammer to crack a nut'. Thus this doctrine tries to balance means with ends. Proportionality shares infinite with 'reasonableness' and courts while exercising power of review sees, 'is information technology a course of action that could have been reasonably followed'. Courts in Republic of india have been following this doctrine for a long time but English Courts have started using this doctrine in administrative law after the passing of the Human Rights Human action, 1998. Thus if an action taken by the dominance is grossly asymmetric, the said determination is not allowed from judicial scrutiny. The sentence has to conform the offence & the offender. It should non exist vindictive or unduly harsh.

In Hind Construction Co. vs. Workmen [xxiii], some workers remained absent from duty treating a particular day as vacation. They were dismissed from service. The industrial tribunal set aside the activity. This courtroom held that the absence could accept been treated as leave without pay. The workmen might have been warned and fined. The Courtroom said that it was incommunicable to call up that whatsoever reasonable employer would have imposed the extreme punishment of dismissal on its entire permanent staff in this manner. The court explained that the penalty imposed the workmen was non only severe but out of proportion.

In Sardar singh vs. Spousal relationship of India [xxiv], a jawan, serving in the Indian Army was granted leave. While going to his dwelling house boondocks, he purchased 11 bottles of rum from the Army canteen, though he was entitled to bear merely 4 bottles. In the Court Martial proceedings instituted confronting him on that ground, he was sentenced to undergo R.I. for 3 months and was also dismissed from service. The Supreme Court prepare bated the penalization & held the action taken against the appellant as arbitrary & penalty as severe. The doctrine of Proportionality is an important principle. Information technology enables the Courts to check the possible abuse of discretionary power by the Executive. Though there is much mutual substance in the principles of Irrationality & Proportionality, the latter, nevertheless, requires the Court to judge whether the action taken was really needed too as whether it was within the range of courses of action that could reasonably be followed.

In Direction Grand. Tea Estates vs. Mazdoor Sangh [xxv], the workmen of the tea estates, alleged to have entered the estate armed with mortiferous weapons with a view to gherao the Manager & others in regard to their demand for bonus, caused damage to belongings of the manor & wrongfully confined the Managing director & others. Punishment of dismissal of concerned workmen dehors the allegation of allegation of extortion was held to be not disproportionate to the misconduct proved against them.

The Supreme Courtroom has always maintained that information technology would use the doctrine of Proportionality to test the validity of an authoritative action merely when the Primal Rights of the aggrieved person are disproportionately violated by the administrative authority.

Legitimate Expectations

A legitimate expectation will ascend in the heed of the complainant wherever he or she has been led to sympathise — past the words or actions of the decision maker – that certain procedures will be followed in reaching a decision. A Legitimate Expectation amounts to an expectation of receiving some do good or privilege to which the individual has no right. Legitimate Expectation means expectation having some reasonable basis. The doctrine of Legitimate Expectation has evolved to requite relief to the people when they are not able to justify their claims on the basis of law in the strict sense of the term they had suffered civil consequences because their legitimate expectation has been violated. 2 considerations apply to legitimate expectations. The first is where an individual or grouping has been led to believe that a certain procedure will apply. The second is where an individual or group relies upon a policy or guidelines which have previously governed an surface area of executive activeness.

In R v Liverpool Corporation ex parte Liverpool Taxi Fleet Operators Clan [xxvi], the corporation had given undertakings to the taxi drivers to the effect that their licenses would non be revoked without prior consultation. When the corporation acted in breach of this undertaking, the courtroom ruled that it had a duty to comply with its commitment to consultation.  A public torso may human action in a way which creates an expectation in the mind of a person or torso.

In R v Secretarial assistant of Country for Health ex parte U Tobacco International Inc. [xxvii], the company had opened a factory in 1985 with a govt. grant, for the production of oral snuff. The government made the grant available notwithstanding its sensation of the health risks of the product. In 1988, notwithstanding, the government — having received further advice from a committee — announced its intention to ban snuff. The company sought judicial review, relying on a legitimate expectation based on the government's activeness. The courtroom ruled, however, that, even though the applicant had a legitimate expectation, that expectation could not override the public involvement in banning a harmful substance.

In R.P. Singh vs. State of Bihar [xxviii], the Supreme Court explained that the expression "established practice" referred to a regular, consistent, predictable & sure conduct, process or activity of the decision-making dominance. The expectation should be legitimate i.e. logical, reasonable & valid. The doctrine of legitimate expectation would apply in cases where the conclusion taken by the dominance is constitute to be arbitrary, unreasonable & not taken in public involvement. Change in policy however, can defeat the legitimate expectation. In such a case, fifty-fifty by the mode of change of erstwhile policy, the Courts would not arbitrate with the conclusion.

In Jatinder Kumar vs. State of Haryana[xxix], the Courtroom held that the Government had a correct to review the decisions taken past the previous establishments & hence it could suspend the process of recruitment started by previous Government, because of allegations of irregularities & this could not be challenged on the ground of violation of legitimate expectation.

Determination

Judicial review is a powerful weapon to restrain unconstitutional exercise of power past the legislature and executive. The expanding horizon of judicial review has taken in its fold the concept of social and economic justice. While practise of powers by the legislature and executive is subject to judicial restraint, the only check on our own exercise of power is the self-imposed subject of judicial restraint. Mere possibility of another view cannot be a ground for interference. Therefore, courts will non interfere unless the determination suffers from illegality, irrationality, procedural impropriety and proportionality deficiency. Mere assertion of these ground is not sufficient, each ground must exist proved past prove on record. Asserting the power of judicial review, the court emphasized that the doctrine of immunity from judicial review is restricted to cases or class of cases which relate to deployment of troops and entering into international treaties etc. in policy matters and where subjective satisfaction of the authority is involved, court volition not interfere unless the conclusion is totally perverse and violates any provisions of the Constitution. If proper care is taken at the level of making administrative decisions, at that place volition be niggling scope for grievance and invoking courts' jurisdiction. This will not simply reduce the burden on courts but will also create a sense of security and satisfaction in people which is the essence of adept governance and foundation of a welfare State.

Formatted on 15th March 2019.

[i] (1985) AC 410

[2] AIR 1954 All iii

[iii] (1934) i KB 277

[iv] 868 [1992] 2 A.C. 48

[v] [1921] 1 CH. 440

[6] AIR 1964 SC 477

[vii] [1995] iii All ER 20

[8] (1991) COD 129

[ix] [1970] iii All ER 871

[x]^. (1948) 1 KB 223

[11] (1925) AC 578

[xii] (1998) COD 199

[xiii] [1972] 1 All ER 280

[xiv] AIR 2002 Delhi 403

[xv] A.P.B.C. Sangh vs. J.S.V. Fed., (2006) 6 SCC 718

[xvi] Grand.C. Sharma v. Raj, AIR 2002 SC 2877

[xvii] State of H.P. vs. Padma Dev, AIR 2002 SC 2477

[xviii] ibid

[xix] [1967] three All ER 434

[xx] Agricultural Horticultural and Forestry Industry Grooming Board v Aylesbury Mushrooms Ltd (1972)

[xxi] (1999) 48 I.C.L.Q.

[xxii] [1964] Air conditioning 40

[xxiii] AIR 1965 SC 917

[xxiv] AIR 1992 SC 417

[xxv] AIR 2004 SC 4647

[xxvi] [1972] 2 QB 299

[xxvii] [1992] QB 353

[xxviii] (2006) 8 SCC 381

[xxix] (2008) ii SCC 161

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Source: https://www.lawctopus.com/academike/grounds-judicial-review-123/

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