Judicial Control - Indian Polity UPSC Notes | EduRev

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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:

  1. Courts of law cannot intervene on their own accord. They start intervening only when approached by an individual or group of individuals, with the plea that his or their rights have been infringed, or are likely to be infringed, due to some act of the government servants.
  2. The judicial control is a control after the event. One can have judicial recourse only after the damage has been done.
  3. Judiciary may be statutorily prevented from reviewing on the validity of rules and regulations falling within certain spheres. Many administrative activities have been kept beyond the jurisdiction of the judiciary in India. This is not so in the case of United States of America. In that country, the Congress cannot statutorily exclude any administrative act or decision because its own acts remain subject to judicial review.
  4. Judiciary may itself adopt a sort of self-denying ordinance, refusing, of its own accord, to interfere in certain areas.
  5. Recourse to judicial redress has become prohibitively expensive and vexatious, which would terrify an average citizen.

Forms of Judicial Control or Remedies 

The more important forms which judicial control or remedies may take, are the following:

  1. Judicial review of administrative acts and decisions.
  2. Statutory appeal against administrative acts and decisions to the courts.
  3. Suit against the government, central or local, by a private party, in torts or contract.
  4. Criminal suits by private parties against a pub-lic officer and civil suits against a public officer for damages, or on contracts made by him, and
  5. Extraordinary remedies of

(a) Habeas Corpus

(b) Mandamus

(c) Injunction

(d) Certiorari

(e) Prohibition and

(f) Quo Warranto 

Judicial Review

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:

  1. Many classes of administrative acts and decisions are excluded by statutes of Parliament from the scrutiny of the courts.
  2. Many others are excluded by rules evolved by the courts themselves by judicial self-limitation.
  3. Certain other matters are excluded by procedural difficulties.

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:

  1. Review will lie only if the party applying for it has legal standing. The party must be adversely affected by the decision complained against.
  2. A complainant cannot ordinarily resort to a court until he has exhausted all administrative remedies, such as an appeal to higher administrative tribunal etc.
  3. Negative orders are generally not reviewable e.g. the administrator's refusal to take action.
  4. Courts usually do not review certain types of decision particularly suited to administrative direction.
  5. Courts do not usually review administrative findings of fact supported by substantial evidence.
  6. The courts are reluctant to review administrative decisions relating to a legal right which is a privilege, e.g., where some gratuity or benefit from the government has been refused.
  7. They are also reluctant to review decisions relating to the necessary functions of government.
  8. A large degree of administrative finality is allowed in old and tested fields where accepted principles and procedures are already well-established.

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 

  1. arbitrary, capricious, involving abuse of discretion or not in accordance with law,
  2. contrary to constitutional right or privilege,
  3. in excess of statutory jurisdiction,
  4. without observance of procedure required by law,
  5. unsupported by substantial evidence, or
  6. unwarranted by facts to the extent that facts are subject to trial de novo by the reviewing court.

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

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

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

  • The selection of a Chief Minister prior to the formation of a Council of Ministers; ­ Dismissal of a Ministry; ­
  • Dissolution of the Legislative Assembly; ­ 
  • Asking information from the Chief Minister relating to legislative and administrative matters; ­ 
  • Refusing to assent to a Bill passed by the Legislature and returning it for reconsideration; ­ 
  • Asking the Chief Minister to submit for a consideration of the Council of Ministers any matter on which a decision has been taken by a Minister but which has not been considered by the Council; ­ 
  • Reserving a Bill passed by the State Legislature for the assent of the President; ­ Seeking instructions from the President before promulgating an ordinance dealing with certain matters; 
  • Advising the President to proclaim an emergency in his state; ­
  • Finally, if a question arises whether any matter is or is not within his discretion, the decision of the Governor in final.

 

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