JUDICIAL REVIEW OF ADMINISTRATIVE ACTION

Unit 1
1.General Principles of Judicial review
Judicial review, the power of courts to review statutes and the governmental action
to determine whether they confirm to rules & principles laid down in constitution.
Judicial review is based on the idea that a constitution which dictates the nature,
functions and limits of a government - is the supreme law. Consequently, any
action by a government that violates the principles of its constitution is invalid.
The system of judicial review of administrative action has been inherited from
Britain. It is on this foundation that the Indian Courts have built a superstructure of
control mechanism. The whole law of judicial review of administrative action has
been developed by judges on case to case basis. Consequently, a thicket of
technicalities and inconsistencies surrounds it.
However, present trend of judicial decisions to widen the scope of judicial review
of administrative action and to restrict the immunity from judicial review to class
of cases whish relate to deployment of troops and entering into international
treaties, etc.1. That power corrupts a man and absolute power corrupts absolutely
which ultimately leads to tyranny, anarchy, and chaos has been sufficiently
established in course of evolution of human history, all round attempts have been
made to erect institutional limitations on its exercise. When Montesquieu gave his
Doctrine of Separation of power, he was obviously moved by his desire to put a
curb on absolute and uncontrollable power in anyone organ of the government. A
legislature, an executive and a judicial power comprehend the whole of what is
meant and understood by government. It is by balancing each of these two powers
against the other two that the efforts in human nature towards tyranny can alone be
checked and restrained and any freedom preserved in constitution.
Judicial review means review by courts of administrative actions with a view to
ensure their legality. Review is different from appeal. In appeal the appellate
authority can go into the merits of the decisions of the authority appealed against.
In judicial review, the court does not go into the merits of the administrative
action; court's function is restricted to ensuring that such authority does not act in
excess of its power. The court is not supposed to substitute its decision for that of
the administrative authority. In Judicial review of administrative action, the courts
merely enquire whether the administrative authority has acted according to the law.
Judicial Review of administrative action, according to de Smith, is 'inevitably
sporadic and peripheral'. It undertakes scrutiny of administrative action on the
touchstone of the Doctrine of ultravires. The administrative authorities are given
powers by the statutes and such powers have to be exercised within the limits
drawn upon them by the statutes. As long as an authority acts within the ambit of
the power given to it, no court should interfere. It is in this sense that such an
authority is said to have the liberty to act rightly as well as wrongly. It has been
held that a court exercising judicial review should not act as a court of appeal over
a tribunal as an administrative authority whose decision comes before it for
review3.
Judicial review is concerned with reviewing not the merits of a decision or an order
but with hoe the decision has been arrived at. The review court is concerned with
two questions:
A. Whether the authority has exceeded its power? And
B. Whether it has abused its power?

Judicial Review in India -

Unlike the U.S., the constitution of India explicitly establishes the
Doctrine of Judicial Review in several Articles, such as, 13, 32, 131-136,143,226
& 246. The doctrine of judicial review is firmly rooted in India, and has the
explicit sanction of the constitution. Article 13(2) even goes to the extent of saying
that "The State shall not make any law which take away or abridges the rights
conferred by this part (Part III containing the Fundamental Rights) and any law
made in contravention of this clause shall, to the extent of the contravention, be
void."9. The courts in India are thus under a constitutional duty to interpret the
constitution and declare the law as unconstitutional if found to be contrary to any
constitutional provision. The courts act as sentinel on the qui vive so far as the
Constitution is concerned.
Judicial Review has been justified from time to time in different cases. In
Kesvananda Bhartiss case, the Supreme Court has emphasized upon the
importance of Judicial Review13:
"As long as some Fundamental Rights exist and are a Part of the Constitution, the
power of judicial review has also to be exercised with a view to see that the
guarantee afforded by these Rights is not contravened... Judicial Review has thus
become an integral part of our Constitutional system..."
The scope of judicial review in India is somewhat circumscribed as compared to
that in the USA. In India, the fundamental rights are not so broadly worded as in
the USA, and limitations thereon have been stated in the constitution itself and this
task has not been left to the courts. The constitution makers adopted this strategy as
they felt that the courts might find it difficult to work out the limitations on the
fundamental rights and the same better be laid down in the constitution itself. The
constitution maker also felt that the judiciary should not be raised to the level of
the 'super-legislature'14.
There is no denying the fact that there have been occasions when judicial
pronouncements have not been palatable to the governments and the legislatures in
India. The exercise of the power of judicial review has at times generated
controversies and tensions between the courts, the executive and the legislature.
For example, the judicial pronouncements in the area of property relations,
legislative privileges and constitutional amendments have been controversial and
have even led to several constitutional amendments which were undertaken to
undo or dilute judicial rulings which the central government did not like.
The Law Minister in the Central Government once stated in Parliament that the
courts had, through their exercise of power of judicial review, retarded the process
of socio economic development of the country, and, therefore, he justified certain
restrictions on the powers of the courts to declare laws unconstitutional 15.But, in
spite of all these hurdles, the institution of judicial review has a vibrancy of its own
and has even been declared as the basic feature of the constitution.

Judicial Review: Object, Nature & Scope

The underlying object of judicial review is to ensure that the authority does not
abuse its power and the individual receives just and fair treatment and not to ensure
that the authority reaches a conclusion which is incorrect in the eye of law 16. As
observed by the Supreme Court in Minerva Mills ltd. v. UOI !7, the constitution has
created an independent judiciary which is vested with the power of judicial review
to determine the legality of administrative action and validity of legislation. It is
the solemn duty of the judiciary under the constitution to keep different organs of
the State within the limits of the power conferred upon them by the constitution by
exercising power of Judicial Review as sentinel on the qui vive. Thus, judicial
review aims to protect citizens from abuse or misuse of power by any branch of the
State.
Judicial quest in administrative matters is to strike the just balance between the
administrative discretion to decide matters as per government policy, and the need
of fairness, any unfair action must be set right by administrative review 18. Judicial
review of administrative action is perhaps the most important development in the
field of public law in the second half of this century. In India, the doctrine of
judicial review is the basic feature of our constitution. Judicial review is the most
potent weapon in the hands of the judiciary for the maintenance of the rule of law.
Judicial review is the touchstone of the Constitution. The Supreme Court and High
Courts are the ultimate interpreters of the constitution. It is, therefore, their duty to
find out the extent and limits of the power to co-ordinate branches, viz. executive
and legislature and to see that they do not transgress their limits. This is indeed a
delicate task assigned to the judiciary by the Constitution. Judicial Review is thus
the touchstone and essence of the rule of law19. The power of judicial review is an
integral part of our constitutional system and without it, there will be no
government of laws and the rule of law would become a teasing illusion and a
promise of unreality. The judicial review, therefore, is a basic and essential feature
of the constitution and it cannot be abrogated without affecting the basic structure
of the Constitution20. The areas where judicial power can operate are limited to
keep the executive and legislature within the schemes of division of powers
between three organs of the State. The ultimate scope of judicial review depends
upon the facts and circumstances of each case. The dimensions of judicial review
must remain flexible21. It is cardinal principle of our constitution that no one
howsoever highly placed and no authority lofty can claim to be the sole judge of its
power under the constitution. The rule of law requires that the exercise of power by
the legislature or by the judiciary or by the government or by any other authority
must be conditioned by the constitution. Judicial review is thus the repository of
the supreme law of the land. It is a vital principle of our constitution which cannot
be abrogated without affecting the basic structure of the Constitution22.
The judiciary plays a very important role as a protector of the constitutional values
that the founding fathers have given us. They try to undo the harm that is being
done by the legislature and the executive and try to provide every citizen what has
been promised by the constitution under the Directive Principles of State policy.
All this is possible thanks to the power of judicial review. All this is not achieved
in a day, it took more than half of a century where we are right now. If anyone
thinks that it has been a roller coaster ride without any hindrances, they are wrong.
Judiciary has been facing the brunt of many politicians, technocrats, academicians,
lawyers etc. Few of them being genuine concern, and among these criticisms one is
the aspect of corruption and power of criminal contempt.
"Judicial review of administrative action is feasible and the same has its
application to its fullest in even departmental proceedings where it is found that the
recorded findings are based on no evidence or the findings are totally perverse or
legally untenable." This is a fundamental requirement of law that the doctrine of
Natural Justice be complied with and the same has, as a matter of fact, turned out
to be an integral part of administrative jurisprudence of this course23.
The rule of law is the bedrock of democracy, and the primary responsibility for
implementation of the rule of law lies with the judiciary 24. 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. As Edmund Burke said: "all persons in positions of powers
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"25. India opted for a parliamentary form of
democracy, where every section is involved in policy-making, the decision taking,
so that every point of view is reflected and there is a fair representation of every
section of the people in every such body. In this kind of inclusive democracy, the
judiciary has a very important role to play. That is the concept of accountability in
any republican democracy, and this basic theme has to be remembered by
everybody exercising public power, irrespective of extra expressed expositions of
the constitution26.
The principle of judicial review became essential feature of written constitutions of
countries. Seervai in his book Constitutional Law in India noted that the principle
of judicial review is a familiar feature of the Constitutions of Canada, Australia
and India; though the Doctrine of Separation of Powers has no place in strict sense
in Indian Constitution, but the functions of different organs of the Government
could not usurp the functions of another27.
The power of judicial review has in itself the concept of Separation of Powers an
essential component of the rule of law, which is a basic feature of the Indian
Constitution. Every State action has to be tested on the anvil of rule of law and that
exercise is performed, when occasion arises by the reason of a doubt raised in that
behalf, by the courts. The power of judicial review is incorporated in Article 226 &
227 of the Constitution insofar as the High Courts are concerned. In regard to the
Supreme Court Article 32 & 136 of the Constitution, the judiciary in India has
come to control by judicial review every aspect of government and public
function28.

Sometimes, it is argued that the strength of the courts has weakened other parts of
the government. This legal debate raises the important and inevitable question that
how far this statement holds true about judicial review powers and capacities of the
Indian Judiciary. The Indian Constitution, like other written Constitutions, follows
the concept of 'Separation of powers' between the three sovereign organs of the
Constitution. The Doctrine of Separation of powers stated in its rigid form means
that each of the organ of the Constitution, namely, executive, legislature and
judiciary should operate in its own sphere and there should be no overlapping their
functioning. The Indian Constitution has not recognized the doctrine of separation
of powers in its absolute form but the functions of the different organs have been
clearly differentiated and consequently it can very well be said that our constitution
does not contemplate assumptions, by one organ of the functions that essentially
belong to another29. Though the Constitution has adopted the parliamentary form of
government, where the dividing line between the legislature and the executive
becomes thin, the theory of separation of powers is still valid 30. Even though the
Constitution of India does not accept strict separation of powers, it provides for an
independent judiciary with extensive jurisdiction over the acts of the legislature
and the executive31. Independence and integrity of the judiciary in a democratic
system of government is of the highest importance and interest not only to the
judges but also to the people at large who seek judicial redress against perceived
legal injury or executive excess. Judicial review is the basic structure, independent
judiciary is the cardinal feature, and an assurance of faith enshrined in the
Constitution. The need for independent and impartial judiciary is the command of
the constitution and call of the people.
Broadly speaking, judicial review in India comprises of three aspects: judicial
review of legislative action, judicial review of judicial decisions and judicial
review of administrative action. The judges of the superior courts have been
entrusted with the task of upholding the constitution and to this end, have been
conferred the power to interpret it. It is they who have to ensure that the balance of
power envisaged by the Constitution is maintained and that the legislature and the
executive do not, in the discharge of functions, transgress Constitutional
limitations32. Thus, judicial review is a highly complex and developing subject. It
has its roots long back and its scope and extent varies from case to case. It is
considered to be the basic feature of the Constitution. The court in its exercise of
its power of judicial review would zealously guard the human rights, fundamental
rights and the citizen's right to life and liberty as also many non-statutory powers
of governmental bodies as regards their control over property and assets of various
kinds, which could be expended on building, hospitals, roads and the like, or
overseas aid, or compensating victims of crime33.
In the landmark judgment of P.V.C.l. v. VOI 34, Jt. Shah observed: "The
legislature in this country has no power to ask the instrumentalities of the State to
disobey or disregard the decisions given by the courts. The legislature may remove
the defect, which is the cause for invalidating the law by the court by appropriate
legislation if it has power over the subject matter and component to do so under the
constitution. The primary duty of the judiciary is to uphold the constitution and the
laws without fear or favor, without being biased by the political ideology or
economic theory. Interpretation should be in consonance with the constitutional
provisions, which envisage a republic democracy. Survival of democracy depends
upon free and fair election. It is true that political parties fight elections, yet
elections would be farce if the voters were unaware of antecedents of candidates
contesting elections. Such elections would be neither free nor fair." These bold
words of Jt. Shah reflect the status, which the Indian Judiciary is holding in the
Constitutional set-up. The constitution-makers have reposed great confidence and
trust in Indian Judiciary by conferring on it such powers as have made it one of the
most powerful judiciary in the world. The Supreme Court has from time to time
indulged in genuine and needful judicial activism and judicial review. It gave birth
to the famous and most needed "Doctrine of Basic Structure".

Limitations of the power of Judicial Review

In India the rule of law was adopted, where general rules of accountability were
assumed. However, there is still scope for abusing power, and thus arises the need
to evolve specific and concrete mechanisms of accountability in addition to diffuse
and general ones such as elections, impeachment and public opinion. Judicial
Review evolved as such a specific and concrete method of checking the excess of
administrative bodies. It is now read to be a part of the basic structure of the
constitution41, and has been the crux of administrative law in India.
The scope has been limited with the help of various principles as imbibed from
common law42, to the common pool of which the Indian courts have added,
subtracted or modified such principles, as they thought fit in the Indian context 43.
Sometimes a culture of arbitrariness can be gauged within the judicial circles while
applying the principles of Judicial Review especially in recent times. A decision is
said to be arbitrary when it is depending on individual discretion, or determined by
a judge rather than by fixed rules, procedures or law. Such arbitrariness takes
myriad forms. It can be observed that judicial arbitrariness itself in four major
forms.
i) Courts substituting the decision it, with what it thinks fit.
ii) Courts misapplying the existing principles.
iii) Courts ignoring the existing principles and interfering on its own
considerations.
iv) Courts not interfering when it is supposed to.

1.) Courts substituting the decision it, with what it thinks fit - One of the
fundamental principles regarding judicial review is its restricted scope, when
compared to judicial appeal. While appeal empowers the court to look into the
merit of the case, based on which it gives its own decision, the scope of judicial
review is restricted to a supervisory jurisdiction, not an appellate jurisdiction.
Courts under review are to decide only about the decision-making process and not
the decision itself. Sadly, this golden rule is often ignored, especially by the High
Courts, andenshrined in the Constitution, something which is held to be
indispensable for many decisions.
there is a growing trend regarding the same in recent times. Jayabhai Jayanta Patel
v. Anilbhai Jayantibhai Patel and ors.44, is the most recent case exemplifying the
same. This case is concerned with an election dispute, where certain people were
prevented from casting a vote, resulting in the election of a certain President. This
was challenged before a presiding officer, but he upheld the election. The matter
was brought before the division bench of the Gujarat High Court. Here, the High
Court not only quashed the election decision, but went out of its scope of review
and held the other candidate standing to be the President. Fortunately, the Supreme
Court overruled this. The High Court, under review had no power to substitute the
decision with its own decision and elect the new President.
Another instance of the same nature can be found in Govt. of A.P. and others
v. Sridevi and others45. Here, the respondents had brought agricultural land and
wanted to convert it into housing land. For this a no objection certificate from
special officer-cum-competent authority was required and an application for the
same was made. However, the special officer dismissed the application, without
finally deciding about same. The respondents filed a writ in the High Court. The
High Court not only quashed the decision of special officer but also substituted its
decision, holding that since the land was outside the purview of the Urban Land
Ceiling Act, the respondents be given the no objection certificate. Again the SC
overruled the decision, reiterating the principles regarding the limited scope of
review46.
Another instance where the High Court substituted the quantum of punishment
with what it thought fit is Sachanlakshri and Another v. Vijay Kumar Raghuvir
Prasad Mehta and Another47. In this case, a school teacher was terminated when he
was found to have forged his service record from previous school. He appealed to
the Tribunal, which took a lenient view and awarded punishment of
stoppage of one increment. The school filed a writ petition in the High Court. The
High Court upheld the decision of the tribunal and held that the punishment is
disproportional so, instead of one increment, it ordered the stoppage of two
increments as punishment. Again, the Supreme Court overruled the High Courts
decision, because it erred in substituting the decision itself.
2.) Courts misapplying the existing principles - The principles of illegality,
irrationality, impropriety and proportionality are to be looked into while deciding
whether the courts have the power to interfere in a case or not. There are however
recent instances where the courts have blatantly overlooked them.
The Supreme Court completely overlooked the principle of proportionality in
Regional Manager, VPSRTC, Etawah and ors. v. Hotilal and Another48. In this
case, a bus conductor had allowed certain people to travel ticket less and was
caught through a superior check by the inspector. An inquiry was held against him
and his offence was proved, for which his service was terminated. He filed a writ
petition against the same in the High Court, which quashed the termination on the
ground of proportionality, stating that the resulting loss to State was a meager Rs.
16/- which could be imposed as penalty on the wrongdoer, instead of terminating
him. The SC on the other hand, while holding that the termination was proportional
to the offence, stated that High Court had no right of interfering without stating
reasons for the same (which is in fact laid down clearly). This is a prima facie case
of court not applying the principles when it should have applied.
Another case of not applying proportionality with regards to punishment was
Kailash Nath Gupta v. Enquiry Officer (R.K. Rai), Allahbad Bank and Ors. 49 .
Here, the employees service was terminated because he caused misappropriation if
the sum of Rs. 46000/-, that too because of certain misunderstanding on his part.
But otherwise the employee had a clear record for 28 years. High Court found the
termination to be proportional, a decision thankfully rectified by the Supreme
Court.
3.) Courts ignoring the existing principles and interfering on its own
considerations-A recent example in this regard would be Allahbad Development
Authority v. Sabia Khan and others5O. In this case, the legality of certain charges of
the Development Authority was challenged. Here High Court Innovatively decided
that it had a power to interfere because it was high time that the rampant corruption
in municipal authorities be checked. Such a consideration is completely out of
context and Supreme Court upheld the same while rebuking the HC for going
beyond its power of review.
Another such instance of courts devising grounds for interference would be the
case of Municipal Corporation, Faridabad v. Sri Niwas 5!. In this case, the
respondent was a tubewell operator and he claimed retrenchment for, he had
worked for 240 days in the past 12 months, as was mandatory. However, the
Municipal Corporation claimed that he had worked only for 136 days and had not
granted the retrenchment. He appealed to the Tribunal which dismissed his case,
holding that he had worked only for 184 days. He then appealed to the High Court.
The H.C. then quashed the decision of the Tribunal solely on the basis that the
Municipal Corporation did not produce the required muster rolls (which were not
produced by either of the parties) and hence an adverse inference was to be drawn
against the Corporation. It is submitted that the Courts interfere with the decision
of a Tribunal on the basis of an adverse inference. Such was also the opinion of
Supreme Court while overturning the High Court's decision.
4.) Courts not interfering when it is supposed to - The flip side of over interfering
and substituting the decision with its own decision, is when the courts refuse to
interfere when it is required under the limited scope of judicial review to interfere.
Such check through judicial review is vital so that the edifice of rule of law is not
shattered, and should not be given away, as is sadly noticed, increasingly. It can be
noticed here, that more than High Courts, the Supreme Court has many a time
failed to interfere when it should have.
In Delhi Development Authority and another v. VEE Electricals and Engg
(P) ltd.52, the respondent was firstly awarded a tender by the DDA. However, due
to a previous fight between the director of the respondent company and the
employees
of DDA, the DDA informed the Authorizing body that it wished to cancel the
tender. The body issued the show cause notice to the company, but before the
notice reached the respondents, the tender was awarded to the party. The High
Court awarded damages to the respondent company while not quashing the grant
of the new tender, which, it is submitted was within the scope of Judicial Review.
However, the Supreme Court upheld the decision of awarding it to the second
bidder, because it felt that there was no arbitrariness or malafide on the part of the
Authority. However, it is submitted that it completely overlooked the applicability
of the natural justice principle of audi alteram partem53.
Similarly in Krishna Mohan Shukla v. VOI and Others 54, while dealing with the
arbitrary nature of compensation awarded by the welfare commission to the Bhopal
Gas tragedy victims, the Supreme Court refused to entertain the petition, because it
said that the victim should have gone to the High Court first, and only then
approached the Supreme Court. Such self restraint, it is submitted, is neither
prescribed by principles of Judicial Review nor any specific statute and hence
should not be imposed while denying people their right55.
The following case study helps us arrive at the conclusion, as has been highlighted
by Prof. Upendra Baxi56 that the principles of Administrative Law, provide a scope
for boundless manipulability which can be and are used in the disadvantage of
various disregarded interests.
The existence of such judicial arbitrariness is dangerous for the very fabric of
administrative justice in the country. Firstly, it undermines the very legitimacy of
having judicial review over administrative bodies and results in tribulisation 57.
Secondly, such ambiguity and fluidity in current decisions encourages the same in
future decisions, basing it on them. Thirdly, it discourages people to come to the
court with specific grievances, and makes impotent the judicial weapon of review,
so essential for the survival of rule of law.
While devising solution for the same, some eminent scholars 58 have suggested the
codification of Administrative Law principles. But it is humbly submitted that such
a step is futile and also impossible. It is impossible and undesirable to codify a
body of law, which is evolutionary in its character and ever expanding its scope.
And also even if such codification is undertaken, it is the application of such
codified rules that creates the problem and would still be problematic, regardless of
the concrete or liquid form of the principles.
A constant vigil is the only weapon while fighting judicial arbitrariness which is
increasingly replacing administrative arbitrariness.
It is true that the courts have the wide powers of judicial review of constitutional
and statutory provisions. These powers, however, must be exercised with great
caution and self-control. The courts should not step out of the limits of their
legitimate powers of the judicial review. The parameters of judicial review of
Constitutional provisions and statutory provisions are totally different. In J.P.
Bansal v. State of Rajasthan59 , the Supreme Court observed: "it is true that this
court in interpreting the constitution enjoys the freedom which is not available in
interpreting a statute. It endangers continued public interest in the impartiality of
the judiciary, which is essential to the continuance of rule of law, if judges, under
guise of interpretation, provide their own preferred amendments to statutes which
experience of their operation has shown to have had consequences that members of
the court before whom the matters come considered to be injurious to public
interest where the words are clear, there is no obscurity, there is no ambiguity and
the intention of the legislature is clearly conveyed, there is no scope for the court to
innovate or to take upon itself the task of amending or altering the statutory
provisions. In that situation the judge should not proclaim that they are playing the
role of Law-maker merely for an exhibition of judicial velour. They have to
remember that there is a line, though thin, which separates adjudication from
legislation. That line should not be crossed or erased; this can be vouchsafed by an
alert recognition of the necessity not to cross it and instinctive, as well as trained
reluctance to do so."
In case the court forgets to appreciate this judicial wisdom, it would undermine
the constitutional mandate and will disturb the equilibrium between three
sovereign organs of the constitution. In State (Government of NCT of Delhi) v.
Prem Raj6O , the Supreme Court took a serious note of this disturbing exercise
when the High Court commuted the sentence by transgressing its limits. The Court
observed:
"The power of commutation exclusively vests with the appropriate government.
The appropriate government means the Central Government in cases where the
sentence or order relates to a matter to which the executive power of union
extends, and the State Government in other cases. Thus, the order of the High
Court is set aside."
Similarly, in Syed T.A. Haqshbandi v. State of J&K 6! , the Supreme Court
observed: "Judicial Review is permissible only to the extent of finding whether the
process in reaching the decision has been observed correctly and not the decision
itself, as such. Critical or independent analysis or appraisal of the materials by the
court exercising powers of judicial review unlike the case of an appellate court
would neither be permissible nor conducive to the interests of either the officer
concerned or the system and institutions. Grievances must be sufficiently
substantiated to have firm or concrete basis on properly established facts and
further proved to be well justified in law, for being countenanced by the court in
exercise of its powers of judicial review. Unless the exercise of power is shown to
violate any other provision of the Constitution of India or any of the statutory rules,
the same cannot be challenged by making it a justiciable issue before the court".
The courts are further required not to interfere in policy matters and political
questions unless it is absolutely essential to do so. Even then also the courts can
interfere on selective grounds only. In P.V.C.l. v. VOI 62 , the Supreme
Court observed: This court can not go into and examine the need of Prevention of
Terrorism Act. It is a matter of policy. Once legislation is passed, the government
has an obligation to exercise all available options to prevent terrorism within the
bounds of the Constitution. Moreover, mere possibility of abuse can not be counted
as a ground for denying the vesting of powers or for declaring a statute
unconstitutional".
The expansion of the horizon of the judicial review is seen both with reverence and
suspicion; reverence in as much as the judicial review is a creative element of
interpretation, which serves as an omnipresent (widespread) and potentially
omnipotent (having total power) check on the legislative and executive branches of
government. But at the same time there is a danger that they may trespass into the
powers given to the legislature and the executive. One may say that if there is any
limitation on judicial review other than constitutional and procedural that is a
product of judicial self restraint. As Jt. Dwivedi empathically observed, "Structural
socio-political value choices involve a complex and complicated political process.
This court is hardly fitted for performing that function. In the absence of any
explicit constitutional norms and for want of complete evidence, the Court's
structural value choices will be largely subjective. Our personal predilections will
unavoidably enter into the scale and give color to our judgment. Subjectivism is
calculated to undermine legal certainty, an essential element of rule of law63.
The above observations also reveal another assumption to support an attitude of
self-restraint, viz., and the element subjective ness in judicial decision on issues
having socio-political significance. When one looks at the decisions of the
Supreme Court on certain questions of fundamental issues of constitutional law
one can see that there is a sharp division among the judges of the apex court on
such basic questions of powers of the Parliament to amend the constitution, federal
relations, powers of the President etc. This aptly demonstrates the observation of
the judge.
This would mean that though there has been expansion of power of judicial review
one cannot also say that this cannot be overturned.
Judicial self-restrain in relation to legislative power manifests (clear & obvious)
itself in the form that there is a presumption of constitutionality when the validity
of the statute is challenged. In the words of Fazal Ali, "the presumption is always
in favor of the constitutionality of an enactment, and the burden is upon him who
attacks it to show that there has been a clear transgression of the constitutional
principles"64.
In applying the presumption of constitutionality the courts sometime apply an
interpretational device called 'reading down'. The essence of the device is that "if
certain provisions of law construed in one way would make them consistent with
the constitution, and another interpretation would render them unconstitutional, the
court would lean in favor of the former construction" 65. But all this depends on the
outlook and values of the judge66.
When it comes judicial review of administrative action through the presumption of
validity is not as strong in the case of administrative actions as in the case of
statutes, still, when the legislature expressly leaves a matter to the direction of an
administrative authority the courts have adopted an attitude of restraint. They have
said we can not question the legality of the exercise of discretionary power. Unless
& until it is an abuse of discretionary power (which includes mala fide exercise of
power, exercising the power of an improper motive, decisions based on irrelevant
considerations or in disregard of relevant consideration, and in some case
unreasonable exercise of power) and non-exercise of discretion (which come when
power is exercised without proper delegation and when it is acted under dictation).
The relevant considerations which should make the judicial choice in favor of
activism or restraint are the policy and scheme of the statute, the object of
conferring discretionary power, the nature and the scope of the discretion, and
finally, the nature of the rights and the interests affected by the decision. Any
impulsive move to activism without a serious consideration of these factors may
only be viewed as undesirable. Judicial activism, being an exception, not the
general rule, in relation to the control of discretionary power, needs strong reason
to justify it. In the absence of such strong support of reasons the interventionist
strategy may provoke the other branches of government may retaliate and impose
further limitations on the scope of judicial review.
The judicial review has certain inherent limitations. It is suited more for
adjudication of disputes than for performing administrative functions. It is for the
executive to administer the law and the function of the judiciary is to ensure that
the government carries out its duty in accordance with the provisions of the
constitution67.
The duty of the court is to confine itself to the question of legality. It has to
consider whether a decision making authority exceeded its power, committed an
error, violated rules of natural justice reached a decision which no reasonable man
would have reached otherwise abused its powers. Thought he court is not expected
to act as a court of appeal, nevertheless it can examine whether the decision-
making process, was reasonable, rational not arbitrary or not violative of Article 14
of the constitution. The parameters of judicial review must be clearly defined and
never exceeded. If the authority has faltered in its wisdom, the court can not act as
super auditor68.
Unless the order passed by an administrative authority is unlawful or
unconstitutional, power of judicial review can not be exercised. An order of
administration may be right or wrong. It is the administrator's right to trial and
error so long as it is bona fide and within the limits of the authority, no interference
is called for. In short, power of judicial review is supervisory in nature. Unless this
restriction is observed, the court, under the guise of preventing abuse of power by
the administrative authority, will itself be guilty of usurping power69.
Bernard Schwartz70 rightly observed : "If the scope of review is too broad ,
agencies are turned into little more than media for the transmission of cases to the
courts. That would destroy the values of agencies created to secure the benefit of
special knowledge acquired through continuous administration in complicated
fields. At the same time, the scope of judicial enquiry must not be so restricted that
it prevents full inquiry into the question of legality. If that question can not be
properly explored by the judge, the right to review becomes meaningless. It makes
judicial review of administrative orders a hopeless formality for the litigant.... It
reduces the judicial process in such cases to a mere feint".