The term 'judicial review' refers to the legal power vested in the Hon’ble Supreme Court and High Courts of the state, to review actions of both the legislative and executive arms of the government to determine their constitutionality. This legal remedy does not lie in cases where the court is required to rule on the merits of the decision. Courts, however, have to decide whether the decision was within the authority of the body which made it, and if the body followed the legal process which the authority prescribes. Almost all legal doctrines relating to the principles of the rule of law are devised to give effect to the principle of legality.
Constitutional Foundation
Unlike in England, where judicial review is largely case-law based, in India it is mainly codified. Articles 32 and 226 of the Constitution confer the power on the Supreme Court and High Courts, respectively, to issue several kinds of writs, including Habeas Corpus, Mandamus and Quo Warranto, to protect persons from unlawful arrest and detention and acts of illegal and unconstitutional executive and administrative action, and to curb and control such action. The scope of Article 226 is much wider and thus it enables the High Court to issue directions, orders or writs other than prerogative writs. Article 227 of the Constitution confers on a High Court the power of superintendence over lower courts in its jurisdiction. The power of a higher court on the action of a lower court is a power inferred by the Constitution itself, it flows from the Revisional Jurisdiction, and therefore rule of law rather than rule of practice. The Supreme Court, however, has taken the view that judicial review is a part of the basic structure of the Constitution, and, hence, is beyond amendment. Thus, in India, judicial review of administrative action is neither a matter of statute nor of common law but a part of the Constitution.
From Ultra Vires to the Threefold Classification
The doctrine of ultra vires is one of the earliest forms of judicial review. It holds that if a power is delegated to an authority by means of a statute, then that authority can only act within the limits of that statute. Acting beyond that would be invalid. In judicial review, "illegality" means that a decision-making authority should accurately interpret the law under that statute. Taking a decision beyond the authority of the law or acting in an arbitrary manner would warrant striking down that decision. A more recent classification of grounds of judicial review is available in the GCHQ case. As noted above, this case provides a threefold classification of judicial review. First, there is illegality. This means that a decision should be taken in conformity with the law. Second, there is irrationality. This means that a decision should not be taken in an arbitrary manner. Third, there is procedural impropriety. This means that a decision should be taken in conformity with the rules of natural justice.
Irrationality and the Wednesbury Standard
The Wednesbury test is named after a 1948 English case involving the Wednesbury Corporation. In this case the court indicated that a court would only set aside a discretionary decision if the decision was so unreasonable that no reasonable person could have made the decision. It is preferable that a court does not substitute its view of the correct decision. Rather a court should abide by the decision that Parliament has directed be made by a specified body. In Ranjit Thakur v. Union of India (1987) the Supreme Court struck down a court-martial decision because it was so disproportionate to the misconduct and that no reasonable person could have made the decision given the circumstances. The Court also relied on this decision to interpret the Wednesbury Test in Union of India v. G. Ganayutham (1997).
Procedural Fairness and Natural Justice
Natural justice extends beyond quasi-judicial functions. In A.K. Kraipak v. Union of India (1970), the Supreme Court noted that, for the purposes of extending natural justice to administrative functions, the difference between administrative and quasi-judicial functions is academic. As such, an administrative authority must ensure that an individual is afforded the opportunity to be heard prior to taking action that may affect the individual’s rights. Maneka Gandhi v. Union of India (1978), relied on and built upon the A.K. Kraipak case. In Maneka Gandhi, the Supreme Court ruled that the impounding of a passport constituted a procedurally fair process under Article 14 and 21 of the Constitution and that, therefore, the passport authority was obligated to provide the passport holder an opportunity to be heard prior to taking such action. It further ruled that, in administrative actions, if the determining principle or reason for the action is, lack of a determining principle, then such administrative action is arbitrary and, therefore, unconstitutional under Article 14. Such action would also fail the Wednesbury reasonable limits test.
Proportionality
In cases where an administrative action limits a fundamental right, the courts have moved away from using the Wednesbury test to evaluate such actions. The Supreme Court case Om Kumar v. Union of India (2001) acknowledged that the test of proportionality examines if a restriction placed on a fundamental right is justifiable and is the least restrictive means to achieve a legitimate aim. On the other hand, the Wednesbury test examines if a decision is so unreasonable that no decision maker would have arrived at such a conclusion. Currently, the test of proportionality is used to assess actions limiting a fundamental right, while the Wednesbury test is used to assess other forms of administrative action.
Judicial Review of Executive Discretion — and Its Limits
Courts balance between determining the legality of a decision and avoiding touching upon the merits of a decision when reviewing the legality of an executive decision. Wider latitude is granted to administrative authorities, and where policy decisions affecting trade and commerce devolve to administrative authorities, courts generally decline to examine the merits of the decision. In the case of Tata Cellular Limited v. Union of India (1994), the Supreme Court held that in reviewing an administrative decision, the court should look into the procedural fairness of the decision and not the substance of the decision, unless the decision is found to be arbitrary or irrational. In a review of the legality of a decision relating to the award of a license/permit, the court would not substitute its judgment for that of the administrative authority. The court is equally restrained in reviewing an administrative decision relating to the formulation of policy or economic regulation. Courts are not to judge the wisdom of a decision. The function of the courts is to determine whether a valid and reasonable decision has been made. Courts generally consider that the administrative authority had acted within its legal powers and had not acted irrationally. There are checks on even the most politically-charged presidential decree. In S.R. Bommai v. Union of India (1994), a nine-member bench of the Supreme Court held that the Court could review a case to determine if there were reasonable grounds for a president to have issued a proclamation to dissolve a state government under the provisions of Article 356 of the Constitution. The Court would also examine if relevant materials, if any, existed to support the president’s satisfaction. However, the Court would not review the sufficiency of that material or evaluate the president’s policy. Therefore, even where the Constitution requires a decision to be made by the president or governor based on his/her satisfaction, a court could review that decision to satisfy itself if the president or governor acted based on relevant materials.
Legitimate Expectation
Relating to the previous point, a court may review administrative action which contravenes an expectation held by a member of the public, where that expectation is the result of the consistency of the administration’s conduct or practice, or an express representation, and which action therefore, impacts on the administration’s legitimacy and procedural fairness. An expectation created in this way may be relied upon. In the absence of a compelling public interest, a court will require the administration to act consistently with the expectation by providing the affected person with the opportunity to be heard or by giving reasons for its action.
Conclusion
These considerations inform the contours and limits of administrative power in an Indian context. These boundaries remain fluid and change over time. Illegal acts of the administration are policed by the statute. Irrelevant and disproportionate acts of the administration are policed by reason. Acts of unfairness in the procedure and failures to accord legitimate expectations are policed by fairness. The courts will uphold these boundaries. Indian courts have consistently stated that the purpose of judicial review of administrative actions is to ensure that the administrative and executive actions are carried out in a legal and reasonable manner. This function of the court will not subserve the interest of the judiciary in usurping the function of the executive.