ICFAI LAW SCHOOL

ICFAI UNIVERSITY
DEHRADUN

JUDICIAL REVIEW OF ADMINISTRATIVE

ACTIONS

THIS DOCUMENT IS THE FULLFILLMENT OF THE

PROJECT
SUBMISSION OF COMPARATIVE AND
GLOBAL ADMINISTRATIVE LAW
LLM (2023-24)

Submitted to: Submitted

Mr. Santosh Kumar By:
( Prof. of Law) Jaya Vats
Roll no. –
23FLPCDDN0
1047

Contents

1
 INTRODUCTION ........................................................................................................
3

GROUNDS FOR JUDICIAL REVIEW ....................................................................

5

Illegality: ....................................................................................................................
5

Irrationality: ...............................................................................................................
6

Procedural Impropriety: .............................................................................................

7

Proportionality: ..........................................................................................................
9

CONTROLS ON ADMINISTRATIVE POWERS .................................................

10

Statutory control .......................................................................................................

10

Non-statutory control ...............................................................................................

10

CONCLUSION ...........................................................................................................
17

INTRODUCTION

Judicial review, the power of courts to review statutes and the governmental action to
determine whether they confirm to rules & principles laid down in constitution. Judicial
review is based on the idea that a constitution which dictates the nature, functions and
limits of a government – is the supreme law. Consequently, any action by a government
that violates the principles of its constitution is invalid. The system of judicial review of
administrative action has been inherited from Britain. It is on this foundation that the
Indian Courts have built a superstructure of control mechanism. The whole law of
judicial review of administrative action has been developed by judges on case to case
basis. Consequently, a thicket of technicalities and inconsistencies surrounds it.
However, present trend of judicial decisions to widen the scope of judicial review of
administrative action and to restrict the immunity from judicial review to class of cases
whish relate to deployment of troops and entering into international treaties, etc. 1 That
1 Indian Railway Construction Co. Ltd. v. Ajay Kumar, (2003)4 SCC 579

2
power corrupts a man and absolute power corrupts absolutely which ultimately leads to
tyranny, anarchy, and chaos has been sufficiently established in course of evolution of
human history, all round attempts have been made to erect institutional limitations on its
exercise. When Montesquieu gave his Doctrine of Separation of power, he was
obviously moved by his desire to put a curb on absolute and uncontrollable power in
anyone organ of the government. A legislature, an executive and a judicial power
comprehend the whole of what is meant and understood by government. It is by
balancing each of these two powers against the other two that the efforts in human
nature towards tyranny can alone be checked and restrained and any freedom preserved
in constitution.
Judicial review of administrative actions by court is done with a view to ensure their
legality. Review is different from appeal. In appeal the appellate authority can go into
the merits of the decisions of the authority appealed against. In judicial review, the court
does not go into the merits of the administrative action; court’s function is restricted to
ensuring that such authority does not act in excess of its power. The court is not
supposed to substitute its decision for that of the administrative authority. In Judicial
review of administrative action, the courts merely enquire whether the administrative
authority has acted according to the law. Judicial Review of administrative action,
according to de Smith, is ‘inevitably sporadic and peripheral’ 2. It undertakes scrutiny of
administrative action on the touchstone of the Doctrine of ultravires. The administrative
authorities are given powers by the statutes and such powers have to be exercised within
the limits drawn upon them by the statutes. As long as an authority acts within the ambit
of the power given to it, no court should interfere. It is in this sense that such an
authority is said to have the liberty to act rightly as well as wrongly. It has been held
that a court exercising judicial review should not act as a court of appeal over a tribunal
as an administrative authority whose decision comes before it for review. 3 The Supreme
Court reiterated this principle of judicial review in State of M.P. v. M.V. Vyavasaya Co.
Ltd4, as follows:
“It has been repeatedly held by this court that the power of the High Court
under article 226 of the Constitution is not akin to appellate power. While

2 de Smith, Judicial Review of Administrative Action ,4th Ed.,1980

3 State of U.P. v. Nand Kishore Shukla, (1996)3 SCC 750
4 Tata Cellular v. UOI (1994)6 SCC 651; UOI v. B.C.Chaturvedi (1995)6 SCC 750

3
 exercising this power, the court does not go into the merits of the decision
taken by the authorities concerned but only ensures that the decision is
arrived at in accordance with the procedure prescribed by law and in
accordance with the principles of natural justice wherever applicable. Further
where there are disputed question of fact, the High Court does not normally
go into or adjudicate upon the disputed question of fact.”
Judicial review is concerned with reviewing not the merits of a decision or an order
but with hoe the decision has been arrived at. The review court is concerned with
two questions:
• Whether the authority has exceeded its power? And
• Whether it has abused its power?

GROUNDS FOR JUDICIAL REVIEW

Judicial review is central in dealing with the malignancy in the exercise of
administrative power. Outsourcing of legislative and adjudicatory powers to the
administrative authorities as an imperative of modern system of governance has
brought the law of judicial review of administrative action in prime focus. Law
dealing with judicial review of administrative action is largely judge-induced and
judge-led; consequently thickets of technicalities and inconsistencies surround it.
Anyone who surveys the spectrum of judicial review finds that the fundamentals on
which courts base their decisions include Rule of law, administrative efficiency,
fairness and accountability. These fundamentals are necessary for making
administrative action ‘people-centric’. Courts have generally exhibited a sense of
self-restraint where judicially manageable standards do not exist for judicial
intervention.56 However, “self-restraint” is not the absence or lack of power of
judicial review. Courts have not hesitated, in exceptional situations, even to review
policy matters and subjective satisfaction of the executive.
Generally, judicial review of any administrative action can be exercised on four
grounds:
1. Illegality
2. Irrationality
3. Procedural Impropriety/ Fairness
5 Essar Oil Ltd. v. Halar Utkarsh Samiti, (2004)2 SCC 392; N.D. Jayal v. UOI, (2004)9 SCC
6 ; Hira Tikoo v. UT Chd, (2004)6 SCC 765; State of Karnataka v. Dr. Parveen Bhai Togadia,
(2004)4 SCC 684; E.V. Chinnaiah v. State of A.P., (2005)1 SCC 394

4
 4. Proportionality
These grounds of judicial review were developed by the Lord Diplock in Council of
Civil Services Union v. Minister of Civil Services7, Though these grounds of
judicial review are not exhaustive and cannot be put in water tight compartments
yet these provide sufficient base for the courts to exercise their review jurisdiction
over administrative action in the interest of efficiency, fairness and accountability.
1. Illegality: decision makers must understand the law that regulate them. If they
fail to follow the law properly, their decision, action or failure to act will be
illegal. Thus an action or decision may be illegal on the basis that the public
body has no power to take that action or decision, or has acted beyond its
powers. This arises,
for example when the legislation relating to a public body does not include the
necessary power nor have precise limits or when the power can be used. Public
bodies acting illegally in this way can be described as acting “ultra vires” (which
means beyond or outside their powers).
Sometime legislation allows the exercise of a wide and seemingly
unrestrained discretion by the public body, or provides that a duty should be
discharged in certain circumstances, but does not prescribe a particular
process for determining whether those circumstances arise in an individual
case. Here, illegality can occur where the action, failure to act or decision in
question in question violate the public law principles set down by the courts
for processes of this kind. These principles require public bodies to:
• take into account relevant information (and to assign the appropriate
amount of weight to such information), and to ignore irrelevant
information;
• Ask the right questions and to undertake sufficient enquiry, for
example by addressing the right issue and taking reasonable steps to
obtain the information on which a proper decision can be based.
• not to delegate a decision for which they are exclusively responsible,
and that therefore only they can make-allowing another person to
take a decision for them, means that they are giving their power
away and fail to be properly accountable.

7 (1984)3 All ER 935(HL); (9185) AC 374 (CCSU Rules)

5
 • Ensure that they have not fettered their discretion by for example
applying a very rigid policy as if it were legislation.
• Comply with the Human Rights At by acting compatibilities with the
convention, so far as it is possible for them to do so.
So, all the decisions or actions taken should be within the scope of the
relevant statutory (or occasionally non-statutory) legal powers. Many
administrative decisions require decision-makers to consider the scope of
their legal powers, as well as assessing the facts of each case. Many
decisions also require the exercise of discretion.
2. Irrationality: The courts may also intervene to quash a decision if they consider
it to be so demonstrably unreasonable as to constitute ‘irrationality’ or
‘perversity’ on the part of the decision maker. The benchmark decision on
this principle of judicial review was made as long ago as 1948 in the
Wednesbury case:
“If a decision on a competent matter is so unreasonable that no
reasonable authority could ever have come to it, then the courts can
interfere but to prove a case of that kind require something
overwhelming…” Lord greene Associated Provincial Picture Houses
Ltd. v. Wednesbury Corpn.8
This threshold is extremely difficult to meet, which is why the Wednesbury
ground is usually argued alongside other grounds, rather than on its own.
The onus is also on the claimant to establish irrationality or perversity. It is
important to note that this ground of review does not give judges much
opportunity to review the merits of administrative decisions as the ground
has a high threshold for judicial intervention which is rarely satisfied. The
ground is directed at extremes of administrative behavior. Lord Greene in
the Wednesbury case stated that for review to be successful on this ground
the administrative decision taken must be something so absurd that no
sensible person could ever dream that it laid within the powers of the
authority.
3. Procedural Impropriety: Decision makers must act fairly in reaching their
decisions. This principle applies solely to matters of procedure, as opposed to

8 [1948] 1KB 223 HL.

6
considering the substance of the decision reached. The case must be heard and
decided by the person to whom it is delegated and not by another. The process to
arrive at some decision must be followed as it is expressed in the statute. The
rule of natural justice must be applied by the deciding authority. The rules to be
followed are:
• “a man must not be judge in his own case” &
• “hear the other side”.
This is the duty of the authority to act fairly while taking the matter before it.
Fairness demands that a public body should never act so unfairly that it amounts
to an abuse of power. This means that:
• If there are express procedures laid down by legislation that it must
follow in order to reach a decision, it must follow them.
• It must not breach the rules of natural justice. One of the key issues here
is the rule against bias, which requires the public body to be impartial
and to be seen to be so, e.g., the public body must not allow decisions to
be made by people who have strongly held views which may cause them
to reach a decision based on prejudice, nor allow decisions to be made by
people who have a financial interest in the decision.
There must also be a ‘fair hearing’ before a decision is reached, although this
does not always literally mean an oral hearing. Basically, a person is entitled to
know the case against them, and must have the opportunity to put their case
properly. Any other requirements above and beyond this will depend on the
seriousness of the issue, e.g., if someone’s livelihood or liberty is at stake.
Examples of unfairness could include the following:
• Failing to tell the individual what the case was against them, or taking
into account evidence or factors which she or he was not aware of.
• Failing to allow the individual to put their case forward.
• Failing to give the individual the facilities for putting their case forward
properly.
• Refusing to hear evidence which might have led to a different decision.
• Denying access to relevant documents.
• Holding a hearing in the absence of the individual when they had a good
reason for not being able to attend.

7
 • Failing to notify the individual of the time and place of the hearing that
would lead to the decision being taken.
• Failing to consult those who the public body had a duty to consult or
those who had a “legitimate expectation” that they would be consulted
before the decision was made, perhaps because they had been consulted
in the past or because it would seem obvious that someone has an interest
in a matter and should be consulted.
Finally, fairness may also demand that the public body give reason for their
decision. Certain statutory procedure will require this, although there is no
specific requirement in law generally. However, more recent cases have
suggested that in certain circumstances reasons should be given, and this will
often depend on the nature of the decision and how important it is to an
individual. Reasons for a decision may be required when the decision maker is a
professional judge, the decision would otherwise appear aberrant (to diverge
from the normal type), or where the subject matter is particularly highly
regarded, such as a person’s liberty.
4. Proportionality: This principle provides that the means for achieving some
object ought to be sufficient but not exercise for the purpose of achieving that
object. Under this principle, the court will see that the legislature and
administrative authority maintain a proper balance between the adverse effects
which the legislation or the administrative order may have on the rights, liberties
or interests of persons keeping in mind the purpose for which they were intended
to serve.

8
CONTROLS ON ADMINISTRATIVE POWERS
Mainly there are two types of control on administrative powers, these are:
• Statutory control
• Non-statutory control
Statutory control
Statutory controls are given in statute (or rules or regulations made under the statute).
Any administrative action in violation of the same will be declared illegal by the courts
by applying the ultra vires doctrine.
Non-statutory control
• The wednesbury principle
• Rules of natural justice
• Doctrine of Proportionality
• Legitimate exception
(1) The wednesbury principle: It is clear that the principles of reasonableness and
proportionality cover a great deal of common ground 9. The Wednesbury
principle, lay down as early as 1947, continue to be of vital importance. Earlier,
the English Court could interfere only with the decision of judicial and quasi-
judicial authorities but not with administrative decisions. The decision in
Associated Provincial Picture Houses Ltd v.Wednesbury Corporation10 altered
this position. The court held that it can not interfere as an appellate authority
overriding the decisions of such authority but only as a judicial authority
concerned to see whether it has contravened the law by acting in excess of its
power. Lord Greene, who rendered the leading judgment, dealt with the law in
detail and enunciated
“principle of unreasonableness” and Indian Courts have followed these
‘Wednesbury principles of reasonableness’ in various decisions. Lord Greene
M.R. went on to describe various grounds of challenge which went into the
legality of public body’s action. Unreasonableness was used to describe actions
based on illegality, irrationality and the like. This Wednesbury test has been the
major tool used by the courts to control discretionary decisions.
These principles of Wednesbury unreasonableness underwent some modification
by the decision of Lord Diplock in the celebrated case of Council for Civil

9 Wade: Administrative Law, (1994), pg.403

10 (1947)2 All ER 680

9
 Services Union v. Minister of Civil Services 11, also known as GCHQ case.
Through his judgment, Lord Diplock widened the grounds of judicial review. He
mainly referred to these grounds upon which administrative action is subject to
control by judicial review. The first ground being ‘illegality’, the second
‘irrationality’ and the third ‘procedural impropriety’. He also mentioned that by
further development on a case to case basis, in due course, there may be other
grounds for challenge. He particularly emphasized the principles of
proportionality. Thus, in a way, Lord Diplock replaced the language of
‘reasonableness’ with that of ‘rationality’.
The principle of proportionality envisages that a public authority ought to
maintain a sense of proportion between his particular goals and the means he
employs to achieve those goals, so that his action impinges on the individual
12
rights to the minimum extent to preserve public interest . Thus implying that
administrative action ought to bear a reasonable relationship to the general
purpose for which the power has been conferred.
The principle of proportionality therefore implies that the court has to
necessarily go into the pros and cons of any administrative action called into
question. Unless, the impugned administrative action is advantageous and in the
public interest, such an action can not, be upheld. At the core of this principle is
the scrutiny of the administrative action to examine whether the power conferred
is exercised in proportion to the purpose for which it has been conferred. Thus,
any administrative authority while exercising a discretionary power will have to
necessarily establish that its decision is balanced and in proportion to the object
of the power conferred. This is so as administrative decisions can often have
profound implications on the day-to-day lives of our citizens, their rights,
liberties and legitimate pursuits.
(2) Rules of Natural justice:
The concept of natural justice is very important in the modern Administrative
Law for it provides a basis for judicial control of the procedure followed by
adjudicatory bodies, but it is vague, and has no fixed connotation. The concept
of natural justice is flexible as its content depends inter alia upon the nature and

11 (1985)AC 374
12 M.P. Jain & S.N. Jain, Principles of Administrative Law, 6th Ed., 2007

10
constitution of the body concerned, the function it is exercising the statute under
which it is acting.
Courts have always instated that the administrative agencies must follow a
minimum of fair procedure. This minimum fair procedure refers to the principles
of natural justice. So, with all its vagueness and flexibility, its two elements have
been generally accepted, viz.
• that the body in question should be free from bias, and
• that it should hear the person affected before it decides the matters. These
principles are the foundation on which the whole superstructure of
judicial control of administrative action is based.
• Rule against Bias: The first principle means that the adjudicator should
be disinterested and unbiased; that the prosecutor himself should not be a
judge; that the judge should be a neutral and disinterested person; that a
person should not be a judge in his own cause; that a person interested in
one of the parties to the dispute should not, even formally, take part, in
the adjudicatory proceeding. ‘Bias’ means an operative prejudice,
whether conscious or unconscious, in relation to a party or issue. Such
operative prejudice may be the result of a preconceived opinion or a
predisposition or a predetermination to decide a case in a particular
manner, so much so that it does not leave the mind open. In other words
‘Bias’ may be generally defined as partiality or preference which is not
founded on reason and is actuated by self interest – whether pecuniary or
personal.13
• Fair Hearing: This is the second long arm of natural justice which
protects the ‘little man’ from arbitrary administrative actions whenever
his right to person or property is jeopardized. Thus one of the objectives
of giving a hearing in application of the principles of natural justice is to
see that an illegal action or decision does not take place. Any wrong
order may adversely affect a person and it is essentially for this reason
that a reasonable opportunity may have to be granted before passing an
administrative order102. That no one should be condemned unheard is an
important maxim of civilized jurisprudence103. But the court will not

13 G.N. Nayak v. Goa University, (2002)2 SCC 290

11
 strike down an order merely because the order has been passed against
the petitioner in breach of natural justice. It would be justified in refusing
to do so if such striking down would result in restoration of another order
passed earlier in favor of the petitioner and against the opposite party in
violation of principle of natural justice or is otherwise not in accordance
with law.14
(3) Doctrine of Proportionality: With the growth of administrative law there was
needed to control the possible abuse of discretionary power by the
administration. For this purpose, courts have evolved various principles like
illegality, irrationality, procedural impropriety and proportionality. This is the
latest entrant in the administrative law.
Proportionality means that the administrative action should not be more drastic
than it ought to be for obtaining desired result. This implies that cannon should
not be used to shoot a sparrow. This doctrine tries to balance means with ends.
Proportionality shares space with ‘reasonableness’ and courts while exercising
power of review sees, ‘is it a course of action that could have been reasonably
followed’. Courts in India have been following this doctrine for a long time but
English Courts have started using this doctrine in administrative law after the
passing of the Human Rights Act, 1998.
‘Doctrine of Proportionality’ is a theory, which has great practical and social
significance in India. The said doctrine originated as far back as in the 19th
century in Russia & was later adopted by Germany, France and other European
countries. By Proportionality, it is meant that the question whether while
regulating the exercise of fundamental rights, the appropriate or least restrictive
choice of measures has been made by the legislature or the administrator so as to
achieve to achieve the object of the legislation or the purpose of the
administrative order, as the case may be, under the principle, the court will see
that the legislature and administrative authority maintain a proper balance
between the adverse effects which the legislation or the administrative order may
have on the rights, liberties or interests of persons keeping in mind the purpose
for which they were intended to serve. Through the use of this doctrine court
would not allow administration to use a sledge-hammer to crack a nut where a

14 Raj Kumar Soni v. State of U.P., (2007)10 SCC 635: (2007)5 JT 114

12
 pairing knife would suffice. Thus it is a principle where courts would examine
priorities and processes of the administration for reaching a decision or recalling
a decision. However, courts have always tried to temper this doctrine with the
doctrine of ‘flexibility’.15 Proportionality is “concerned with the way in which
the decision-maker has ordered his priorities, the very essence of decision-
making consists in the attribution of relative importance to the factors in the
case”. In the Human Rights context, proportionality involves a ‘balancing test’
and the ‘necessity test’. The former scrutinizes exercises and onerous penalties
or infringement of rights or interest whereas the latter takes into account other
less restrictive alternatives.16 In short, proportionality is presented as a principle
capable of objective and certain application, one which does not encourage
judicial usurpation of the administrative function. This doctrine plays as an
important basis for exercising judicial review. This entails that administrative
measures must not be more drastic than what is necessary for attaining the
desired result. The doctrine operates both in procedural and substantive matters.
This principle contemplates scrutiny of whether the power that has been
conferred. Thus, any administrative authority while exercising a discretionary
power will have to necessarily establish that its decision is balanced and in
proportion to the object of power conferred.
(4) Legitimate exception: The doctrine of legitimate expectation belongs to the
domain of public law and is intended to give relief to the people when they are
not able to justify their claims on the basis of law in the strict sense of the term
though they had suffered civil consequences because their legitimate expectation
had been violated.17
The principles of natural justice have enriched law and constitutions the world
over. Article 14 of the Indian Constitution applies not only to discriminatory
class legislation but also to arbitrary or discriminatory class legislation but also
to arbitrary or discriminatory State action, because violation of natural justice is
violation of equality clause of Article 14 18. Principles of natural justice are judge
made rules and still continue to be a classical example of judicial activism.

15 Coimbatore Distt. Central Coop. Bank v. Employee’s Association, (2007)4 SCC 669
16 UOI v. G.Ganayatham, (1997)7 SCC 463
17 Clerk, R., In Pursuit of Fair Justice, AIR 1996(J)11
18 Satyavir Singh v. UOI, AIR 1986 SC 555

13
These principles are attracted whenever a person suffers a civil consequence or a
prejudice is caused to him by any administrative action. Loss of ‘Legitimate

Expectation’ also attracts the principles of natural justice.

The judiciary plays very important role as a protector of the constitutional values
that the founding fathers have given us. They try to undo the harm that is being
done by the administrative action. All this is possible thanks to the power of
judicial review. It is the significance of judicial review, to ensure that the
democracy is inclusive and that there is accountability of everyone who wields
or exercise public power.
The Doctrine of Legitimate Expectation is a recent creation of the decisional law.
It forms part of a judicial strategy to exclude the possibility of arbitrary
administrative actions. The theory of legitimate expectation is a branch of
administrative law. It is the newest entrant to long list of concepts introduced by
the courts for the review of administrative action. This doctrine is one of the
finest examples of judicial creativity. Legitimate expectation applies the
principles of fairness and reasonableness to a situation where a person has an
expectation or interest in a public body or private parties retaining a long-
standing practice or keeping a promise.
The doctrine of legitimate expectation is invoked in a range of cases, the
common theme of which is, the principle that when administrative officials had
created or induced a belief in a person about the possible exercise of their
powers, any change affecting this belief should be conditioned by the rules of
natural justice. As legitimate expectation doctrine gained importance, it had been
invoked in a wider range of cases, which can be conveniently summarized into
four categories. The first category is in which a person had relied upon a policy
or norm of general application but was then subjected to a different policy or
norm. The second category, which is a slight variation on the first, includes cases
in which a policy or norm of general application exists and continues but is not
applied to the case at hand. The third category, arises when an individual
receives a promise or representation which neither is nor honoured due to a
subsequent change of a policy or norm of general application. The fourth
category, which is variation on the third arises when an individual receives a
promise or representation which is subsequently dishonoured, not because there

14
had been a general change in policy, but because the decision-maker had
changed its mind in that instance.
This doctrine has flourished tremendously in India in recent times. This
19
reference was found in State of Kerala v. K.G. Madhavan Pillail , in this case
the government had issued a sanction to the respondents to open a new unaided
school and to upgrade the existing ones. However, after 15 days a direction was
issued to keep the sanction in abeyance. This order was challenged on the
ground of violation of natural justice. The court held that the sanction order
created legitimate expectation in the respondents which was violated by the
second order without following the principles of natural justice which is
sufficient to vitiate an administrative order.

19 AIR 1989 SC 49

15
CONCLUSION
Judicial review of administration is, in a sense, the heart of administrative law. It
is certainly the most appropriate method of inquiring into the legal competence
of a public authority. The aspect of an official decision or an administrative act
that may be scrutinized by the judicial process is the competence of the public
authority. The important aspect of the study of administrative law is the judicial
control of administrative action. The tremendous increase in the powers of the
administrative authorities in the modern times. Due to the increased powers of
the administration judicial control has become an important area of
administrative law, because courts have proved more effective and useful than
the legislative or the administrative in the matter. The doctrine of legitimitate
expectation in the latest recruit to a long list of concepts fashioned by the courts
to check the abuse of the exercise of administrative powers. This doctrine is
discussed keeping in view its impact on the flexibility of administrative action.
The Public accountability doctrine has developed in India through case law with
special emphasis of administrative powers as public trust. Doctrine of
proportionality is fully established as a constitutional law concept but its
application in administrative law is still being debated. This doctrine discusses
various claims and counter claims.

16