Administration is subject to judicial control exercisedby 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 ofexcellence 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:
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 public officer and civil suits against a public officer for damages, or on contracts made by him, and
5. Extraordinary remedies of
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 selfdenial, 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 personwho 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.
Mandamus literally means a command. It demands some activity on the part of the body or person to whom it is addressed. It commands the person to whom it is addressed to perform some pubic or quasi-public legal duty which he has refused to perform and the performance of which cannot be enforced by any other adequate legal remedy. It is a discretionary remedy. In the matter of enforcement of fundamental rights, the question of alternative remedy does not weigh so much with the court since it is the duty of the Supreme Court or the High Court to enforce the fundamental rights.
In India, mandamus will lie against the Government itself for, Arts. 226 and 361 provide that appropriate proceedings may be brought against the Government concerned. The writ is also available against inferior courts or other judicial bodies when they have refused to exercise their jurisdiction and thus to perform their duty.
The chief uses of mandamus are compelling officials and bodies to carry out their legal duties, to compel delivery, production and inspection of documents, to compel restoration to a public office or franchise of which the holder has wrongfully been dispossessed, to ensure exercise of jurisdiction by inferior courts and quasi-judicial tribunals, etc.
Mandamus is not an appropriate remedy for the enforcement of contract rights of a personal or private nature, nor to compel performance of duty by one who does not hold a public or quasi-public station. The writ of mandamus may be alternative or peremptory. The former requires the respondent to perform the duty in question or show cause, while the latter absolutely commands the performance of the act in question.
Mandamus is granted to command the performance of ministerial duty in which the official concerned has no discretion. It is not to control the exercise of discretion.
It may ask officers charged with discretionary duties to act, but not to exercise their discretion in a particular way. Mandamus is not issued to compel legislative officials to perform their purely legislative functions.
Mandamus is not issued against the heads of the state but it lies against ministers, departmental heads and other officials. The writ is not granted if its being issued would prove unavailing nor is it granted to compel an officer to do something which is impossible for him or illegal.
The writ of prohibition has been defined as an extraordinary judicial writ, issuing out of a court of superior jurisdiction and directed to an inferior court for the purpose of preventing the inferior tribunal from usurping a jurisdiction with which it is not legally vested.
The differences between mandamus and prohibition are—
Prohibition cannot be issued against a club, trade union or political party. It may be granted not only on the application of parties concerned but also of a stranger. Though the Writ of Prohibition plays some part in connection with the control of administrative tribunal with quasi-judicial functions, it is of little significance as an instrument of control of administration by the courts.
Injunction is not expressly mentioned in the list of writs which the Indian Constitution empowers the Supreme and High Courts to issue. It is not on par with other writs in our country. The Indian courts have powers to issue injunctions and freely do so in appropriate circumstances.
Injunction is a judicial process, operating in personam, and requiring the person to whom it is directed to do or refrain from doing a particular thing. The injunction is not a common law but an equity writ in England and the U.S.A. It is granted by courts of equity or courts possessing equity jurisdiction.
Injunction is of two kinds, mandatory and preventive, resembling both mandamus and prohibition. Mandatory injunction resembles mandamus, for they both command the respondent to do a thing. But mandamus cannot be issued against private persons while injunction is primarily a process of private law and only rarely a remedy in administrative law. Mandamus is a remedy of common law while injunction is that of equity.
Both injunction and prohibition restrain legal proceedings. Injunction is directed to the litigant parties, while prohibition to the court itself. Injunction recognizes the jurisdiction of the court in which the proceedings are pending, prohibition strikes at such jurisdiction.
Certiorari means ‘to be certified’ or ‘to be made certain’. It is a writ issued by a superior to an inferior court of record or other tribunal or officer, exercising a judicial function, requiring the certification and return to the former of some cause already terminated, in cases where the procedure is not according to the course of the common law.
It is generally issued only after the judgement ofthe inferior court or tribunal whose proceedings are to be reviewed. The effect of certiorari is either to quash or affirm the proceedings of the lower court or tribunal. It lies only against substantial errors.
Though prohibition and certiorari are both issued against courts or tribunals exercising judicial or quasi-judicial powers, certiorari is issued to quash the order or decision of the tribunal while prohibition is issued to prohibit the tribunal from making the ultra vires order or decision.
It follows, therefore, that while prohibition is available during the pendency of the proceedings and before the order is made, certiorari can be issued only after the order has been made.
The Supreme Court, previously took the view that the writ of certiorari would not issue against purely administrative action. It would issue only if the authority has a duty to proceed judicially. This means that he has a duty to come to a decision after hearing the parties interested in the matter and without reference to any extraneous considerations.
But later decisions have obliterated the distinction between administrative and quasi-judicial bodies. The current view is that even if the governing statute does not require that before making an order affecting an individual, he must be heard, such a requirement would be implied by the court where the right of property or some other civil right of the individual is affected.
To omit to do this is to deny natural justice and in such cases, the court may quash the so-called administrative decision, by means of writ of certiorari, under Art. 226. Certiorari is important in the context of quasi-judicial functions of administrative officers and tribunals.
The mandamus and the certiorari are the typical remedies of administrative law. Certiorari will lie wherever any body or persons, having legal authority to determine the question of rights of subjects and having the duty to act judicially, act in excess of their legal authority.The writ will not lie against purely administrative action of the Government, or public officer, which is not at all quasi-judicial.
Quo warranto is a proceeding whereby the court enquires into the legality of the claim which a party asserts to a public office and to oust him from its enjoyment if the claim be not well founded.
The conditions necessary for the issue of a writ of quo warranto are as follows:
The fundamental basis of the proceeding of quo warranto is that the public has an interest to see that an unlawful claimant does not usurp a public office. It is a discretionary remedy which the court may grant or refuse according to the facts and circumstances of each case.
The writ may be refused where it is vexatious orwhere it would be futile in its result or where the petitioner is guilty of laches or where there is an alternative remedy for ousting the usurper.
Where the application challenges the validity of anappointment to a public office, it is maintainable at the instance of any person, whether any fundamental or other legal right of such person has been infringed or not.
Quo warranto is a very powerful instrument for safeguarding against the usurpation of public offices and it may be interesting to point out that in England the writ was once issued to question the validity of the office of a member of the Privy Council itself.
The proceedings in connection with quo warranto are civil action. The burden of proof to prove his title lies on the respondent. The plaintiff or the relator does not have to prove that the respondent has no title.
The respondent must show not only his title butalso continued existence of every qualification necessary for the office. The usual judgement in quo warranto proceedings is that of ouster, i.e., turning out of office. If the relator claims and proves his title to the office, he is declared installed, or a vacancy is declared.
Prior to the enactment of the present Constitution, the extraordinary writs, other than habeas corpus, could not be issued by the Indian High Courts and there were a lot of restrictions in the power to issue habeas corpus.
Under the new Constitution of India, the Supreme Court has been empowered to issue directions, orders or writs and its powers are therefore wider than before as it can issue directions and orders as well.
On the other hand, the purpose for which they can be issued is limited to the enforcement of the fundamental rights, though Parliament by law may confer on the Supreme Court powers to issue these directions, orders or writs for purposes other than the enforcement of the fundamental rights. So far the Parliament has not done this.
The powers of the High Courts in the matter are wider. They may issue these orders, directions or writs for the enforcement of fundamental rights as well as for any other purpose.
This seems to confer upon the Indian High Courtsunlimited power to do almost anything by their writs or orders, but in practice, the High Courts themselves are likely to place some appropriate limits on the amplitude of their powers. Courts other than the Supreme and the High Courts have not been empowered in India to issue the writs.