1 Judicial Control of Administrative Action in India and Writs One of the important field of the study of the administrative law is the „? Judicial Control of Administrative Action in India. Today the power of the administrative authorities become very strong and thus it resulted different complications and repercussions in the socio-economic field in India. Therefore, considering the day to day increasing power of the administrative bodies judicial control is become an important area of the administrative law as because the judicial department i. . Courts have proved to be the more effective and beneficiary branch than any other Parliamentary or Legislative or Administrative action for the purpose of the controlling the administrative action in India. In this regard Prof. Jain & Jain rightly quoted that, “the real kernel of democracy lies in the courts enjoying the ultimate authority to restrain all exercise of absolute and arbitrary power.
Without some kind of judicial power to control the administrative authorities, there is a danger that they may commit excess and degenerate into arbitrary authorities, and such a development would be inimical to a democratic Constitution and the concept of rule of law” . Administrative law also provides for control over administrative action by an outside agency strong enough to prevent injustice to the individual while leaving the administrative agencies adequate freedom to enable them to carry on effective administration. Administrative Action” is a very comprehensive term in which all the actions of administration are included. Administration is the meeting point of three types of government functions. The executive performs the residue of all these functions which are not vested in the two other branches of government i. e. the legislature and the judiciary. 1 Administration exercises a variety of powers. Administrative action may therefore, be legislative or judicial or neither, i. e. it could be discretionary non-judicial order or merely a ministerial act.
All these functions are exercised by the administration. Administrative process in this way cuts across the traditional classification of governmental powers and combines into one, all the powers which were traditionally exercised by three different organs of state i. e. the legislature, the judiciary and the Executive. Power of Judicial control of the Administrative action may be divided under two heads in India :- (I) Judicial Control of Administrative actions by Writs: Administrative actions may be controlled by the Courts by issuing different writs under different circumstances in India.
Courts through issuing different writs playing a vital role in the judicial control of administrative actions in India. Article 32(2) provides that the Supreme Court shall have power to issue directions or orders or 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 fundamental rights 2 and for the control of the administrative action in India. This right is available only against State as defined under Article 12 of the Constitution of India.
This Article provide only Original jurisdiction to the Supreme Court not the Appellate jurisdiction. Thus a person can go straight to the Supreme Court for the protection of his Fundamental rights; this jurisdiction of Supreme Court under Article 32 of the Constitution is considered as a part of the basic structure of the Constitution. Article 226 empowers the High Court to issue writs for the enforcement of the Fundamental Rights as well as for any other oppose. Article 226 provides that notwithstanding 1. Jayantilal Amrat Lal Vs F. N. Rana, A. I. R. 1964 S. C. 648, 55. . Bandhua Mukti Morcha V. Union of India, A. I. R. 1976 S. C. 803. 2 anything in Article 32, every High Court shall have power throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority including in appropriate cases any Government within those territories, directions, orders or which including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them for the endorsement of any of the Fundamental Rights guaranteed by part III of the Constitution and for any other purpose.
Both Article 32 and Article 226 provide five kinds of writs through which administrative action may be judicially controlled along with other actions. Article 226 under clause (4) made it quite clear that though both the Articles provides right of writs under the same heads, i. e. habeas corpus, mandamus, prohibition, quo warranto and certiorari, but the power conferred on a High Court by Article 226 shall not be in derogation of the power conferred on the Supreme Court by Clause (2) of Article 32.
Judicial Control over administrative action is exercised through the Constitutional extraordinary remedies and statutory ordinary remedies as well. Provisions for extraordinary remedies have been made under Article 32 and 226 of the Constitution. For controlling administrative action Supreme Court and High Court can issue the writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari. A short discussion is given hereunder:Habeas Corpus: Habeas Corpus means bring the body.
The writ of habeas Corpus is issued as an order calling upon the person who has detain another person to produce the detune before the Court to examine the legality of his detention. If the detune is produced before the Court and the Court finds the detention is illegal then it will order for the immediate release of the person detained illegally. The main objective of this writ is not to punish the person who has detained another person illegally but to secure immediate release of the person detained illegally whether in prison or private custody.
Mandamus: The writ of mandamus is, in form, a control or command issued by the Superior Court (the Supreme Court and High Court) to the Government, inferior court, tribunal, corporation, authority or any other person having public duty to perform asking such the Government, inferior court, tribunal, corporation, authority or any other person to perform the public duty or to refrain from doing illegal act.
Thus mandamus is defined as a command issued to direct any person, corporation, inferior court or government requiring them or him to do any particular thing which he or they should do as a duty of his or their office and is in the nature of public duty or to prevent them from doing any illegal act. The purpose of this writ is to compel the performance of public duties prescribed by the statute and to keep a control over the subordinate court, Tribunal, corporation and other officers or administration exercising public duty.
Certiorari: The writ of certiorari is the writ, which is issued by the Superior Court (i. e. Supreme Court or the High Court) to the inferior court or Tribunal or body exercising judicial or quasijudicial functions to remove the proceedings from such Court, Tribunal or body for examining the legality of the proceedings. If any order passed by the lower court or Tribunal or body exercising judicial or quasi-judicial functions is found to be illegal by the Superior court then the Superior court may quash or demolish it.
It also controls the judicial or quasi-judicial functions of the inferior court or Tribunal or body exercising judicial or quasi-judicial functions exceeding it jurisdiction. 3 The prime aim of the writ of certiorari is to keep judicial control over the inferior courts or Tribunal or bodies functioning judicially or quasi-judicially within the limit of the jurisdiction allocated to them by the law and to prevent them from acting in excess of their jurisdiction.
Prohibition : The writ of Prohibition is issued by a superior court to an inferior court or tribunal or body exercising judicial or quasi-judicial functions for preventing such inferior court or tribunal or body exercising judicial or quasi-judicial functions from uprising jurisdiction which is legally not vested to them or from acting in violation of the principles of natural justice or from acting under the unconstitutional law.
The object of the prohibition is to restrain the inferior courts or tribunals or bodies exercising judicial or quasi-judicial functions from exceeding their jurisdiction. To control and keep them under the limit of their jurisdiction. Prohibition is an order of Superior courts directed to an inferior courts which forbids the court to continue proceedings in excess of its jurisdiction or in contravention of the law of the land.
Quo Warranto: The word ‘Quo Warranto’ means „By what authority?. The writ of Quo Warranto is issued against a person who occupies or holds or usurps an independent sustentative office and asked him to show by what authority he claims it. The procedure of this writ confers jurisdiction on the court to call upon the person holding an independent substantive public office or franchise or liberty to show by what right or authority he holds the said office or franchise or liberty.
The unauthorized or illegal occupant of such office may be ousted by the judicial order and the person entitled to the office may be allowed to hold or occupy it. The object of this writ is to protect or control the right of the citizen through Courts from being deprived of public office to which he may have a right. By this writ the court protects the public from usurpers of the public office and control the administrative action in making appointment of the public office.
Through this writ the court protects a citizen from being deprived of a public office to which he is legally entitled to hold. (II) Judicial Control of Administrative action by other than Writs: Some important aspects other than Writs also provided to the Constitution of India for the judicial control the administrative action in India. (i) Special Leave to appeal: The power of judicial review conferred on the Supreme Court under Article 136 is special or extraordinary in nature. This power is in the nature of a residuary reserve power of judicial review.
Article 136 lays down that the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any Court or Tribunal, except any Court or Tribunal constituted by or under any law relating to the Armed Forces. Since the Supreme Court has been invested with a plenary jurisdiction to hear appeals against the decisions of Administrative Tribunals and other adjudicating agencies, it is now regarded as an important mode of judicial review of administrative adjudications.
But this jurisdiction is special and exercisable outside the purview of ordinary law. The Court entertains special leave only where the needs of justice demand its interference. 3 (ii) Supervisory Jurisdiction: The power of judicial review which has been conferred on all the High Courts under Article 227 is supervisory in nature. Article 227 provides that ever High Court shall have superintendence over all Courts and tribunals throughout the territories in relation to which it 3. Durga Shanker Mehta v. Raghuraj Singh, A. I. R. 1951 S. C. 20 (522). 4 exercises jurisdiction. This supervisory power is both judicial and administrative in nature. 4 The supervisory jurisdiction conferred on the High Courts under Article 227 is in addition to the power given under Article 226 to control inferior Courts or tribunals. The supervisory jurisdiction extends to keeping the subordinate tribunals within limits of that authority and ensuring that they obey the law. The power under the article can be exercised even in those cases in which no appeal or revision lie to the High Court5.
Though all the above mentioned writs and non-writs power are important weapons against state (Article 32) as well as against any detune, whether a private person or State (Article 226) for the judicial control of the administrative action in India but the main instinct for the judicial control of the administrative action by writs is the writ of ‘MANDAMUS’ and ‘QUOWARRANTO’ which are equally protective against the violation of judicial as well as administrative action, and among the other than writs power is the ‘SPECIAL LEAVE TO APPEAL’ which empowers to appeal from any judicial and administrative judgment in India. ***** Department of Law, B. U. Shashi Nath Mandal LL. M ( Part – II), 4. Ram Roop v. Bishwa Nath, AIR 1958 all. 459. 5. Jagir Singh Ranbir Singh, (1979) 1 SCC 560.