Administration is subject to judicial control exercised by the courts. Legislative and judicial control over administration are external controls. The legislative control is the control of the policy and expenditure of the executive branch. Judicial control is the control of administrative acts which ensures their legality and thus protects citizens whenever the official authority encroaches upon their constitutional or statutory rights.
The primary objective of judicial control is the protection of private rights, which is a task of grave importance. The judicial control over administrative acts stems from the doctrine of rule of law, which finds its classic exposition in the writings of A.V. Dicey.
According to this doctrine:
“No man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land...no man is above the law, but every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals. every official from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen. the general principles of constitution. are with us the result of judicial decisions determining the rights of private persons in particular cases brought before the courts”.
While the purpose of Legislative and Executive control of administration is principally to control the policy and expenditure of the government, the object of the judicial control is to ensure the legality of the officials' acts and thereby to safeguard the fundamental and other essential rights of the citizens. Lord Bryce has said that there is no better test of excellence of a government than the efficiency and independence of its judicial system. In modern times judiciary has assumed the role of a guardian of the citizens' private rights. With the increase in the powers and discretion of the public official this role of the judiciary has become more important.
The controls exercised by the courts are known as judicial remedies. Official liability before the courts and the judicial remedies for the citizens against official excesses or abuse of power, are the two faces of the same coin.
Judicial control suffers from the following limitations:
Forms of Judicial Control or Remedies
The more important forms which judicial control or remedies may take, are the following:
(a) Habeas Corpus
(e) Prohibition and
(f) Quo Warranto
Great variations in the pattern of judicial review exist between country and country as well as in respect of different types of administrative acts and decisions within the same country.
In Britain, judicial review does not extend to all administrative acts and is limited in three ways:
Though judicial review does not cover the whole field of administrative action, under the well-established principles of common law and equity, actions of an administrative authority are liable to be challenged in the courts on the ground of want of jurisdiction, excess of power or its abuse.
In the U.S.A., the Congress cannot statutorily exclude any administrative act from judicial review.
To do so would be unconstitutional. Therefore in principle, judicial review extends to the whole field of administrative action. In practice, the courts in the U.S.A. also have, by self-denial, limited their power to review in several ways. As these limitations have not been defined, the courts have reserved their direction to consider each case as it comes up.
Broadly speaking, the limitations affect in the following ways:
The scope of judicial review also varies from mere examination of the correctness and form of decision to the consideration of the matter de novo, according to circumstances and the subject-matter of the case. According to White the amount of judicial intervention tends to be least in cases in- volving public health and safety, and the greatest in cases concerned with public convenience or public amenities.
Under the Administrative Procedures Act, 1946, the reviewing court is empowered:
a: to compel administrative action unlawfully withheld or unreasonably delayed, and
b: to hold unlawful and set aside administrative action or decision found to be
In India the subject of judicial review has not yet been properly studied. Normally the courts do not interfere with purely administrative action, unless it is ultra vires in regard to its scope or form. They will review quasi-judicial decisions of administration on the ground of its being ultra vires or failure to follow the prescribed procedure. The availability of review in this country is restricted by certain provisions of Constitution as well as of statutes declaring finality of administrative decisions in particular matters. Under the present Constitution, enactments of our Parliament and State legislatures are subject to judicial review. Therefore all statutes which exclude judicial review are now unconstitutional. This question has yet to be authoritatively decided on.
Extraordinary remedies consist of the five writs of Habeas Corpus, Mandamus, Prohibition, Certiorari and Quo Warranto. In the U.S.A., in addition to these, there is also Injunction. The origin of these writs can be traced to the English constitutional history. These form part of the common law and are known as common law remedies. In England, these are known as prerogative writs issued in the name of the king as fountainhead of justice. These writs except for Habeas Corpus, are granted by the courts in their discretion and not as a matter of right and that too, only where there is no other adequate remedy.
Therefore, they are known as extraordinary remedies.
In the U.S.A. and India, there is no question of prerogative. In the U.S.A. these remedies are provided for partly by common law and partly by statute whereas in India, it is provided in the Indian Constitution.
According to Article 32 (2) of the Indian Constitution, the Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by Fundamental Right, Part III. Similarly, Article 226 empowers the High Courts to issue to any person or authority, including, in appropriate cases, any government within the territories in relation to which it exercises jurisdiction, directions, orders or writs, for the enforcement of any of the Fundamental Rights and for any other purpose.
Habeas Corpus literally means ‘you shall produce the body’. A writ of habeas corpus is in the nature of an order calling upon the person who has detained another to produce the latter before the court in order to let the court know on what ground he has been confined and to set him free if there is no legal justification for the imprisonment. By this writ, the court secures the body of a person who has been imprisoned to be brought before itself to obtain knowledge of the reason why he has been imprisoned and to set him free if there is no lawful justification for the imprisonment. The writ may be addressed to an official or a private person who has another person in his custody and disobedience to the writ is met with punishment for contempt of court. The writ of habeas corpus is a very powerful safeguard to the subject against arbitrary acts not only of private individuals but also of the executive.
The writ of habeas corpus is available for the enforcement of fundamental rights and where imprisonment or detention is ultra vires the statute. The writ is not issued to secure the release of a person who has been imprisoned by a court of law on a criminal charge or to interfere with a proceeding for contempt by a court of record or by Parliament.
Possible Occasions for Governor’s Discretion