judicial review of administartive action - a t i. public interest litigation (pil) or social action...

JUDICIAL REVIEW OF ADMINISTARTIVE ACTION

Dr. S. NATARAJUChairman, PG. Department of Law

J.S.S Law College, AutonomousMysore

Traditionally the Government functions are classified as ;

LEGISLATIVE – EXECUTIVE – JUDICIAL

Administrative action : Comprehensive term, classified into;

Rule-making action Or Quasi-legislative action ( Delegated legislation)

Rule -decision action Or Quasi-judicial action (Administrative adjudicating functions)

Rule-application action Or Administrative action ( Executive functions)

Ministerial action ( clerical functions or devoid of discretion)


2JSS LAW COLLEGE, MYSORE


Meaning of Judicial Review:Judicial review is a test or scrutiny of the decisions of the organs ofthe State or Administrative agencies, by the Judges of the High Courtsand the Supreme Court

Objectives:• The underlying object of judicial review is to ensure that the authorities does

not abuse its power and the individual receives just and fair treatment and notto ensure that authority reaches a conclusion which is correct in the eye oflaw.

• Judicial review is concerned not with decision but with decision-making process

• Judicial review is not an appellate process. When sitting in review of adecision, the Court will only look at the method in which the decision wasarrived at, whereas in an administrative appeal the correctness of the decisionitself will be examined, usually by a higher body in the agency.

• In India, the doctrine of judicial review is the basic feature of our Constitution.


Judicial Review deals with three aspects:

A. Judicial review of legislative decision

B. Judicial review of Judicial decision

C. Judicial review of administrative action

Nature and scope of Judicial Review (JR):

A weapon in the hands of judiciary for the maintenance of the Rule of Law

The Court examines the decision making process was reasonable, rational ,not arbitrary or not violative of Article 14 of the Constitution.

It confine itself to the question of legality.




The Amplitude of Judicial Review

ADMINISTRATIVE DISCRETION &

DIRECTIONS

CONTROL OF ADMINISTRATIVE

RULE MAKING

ADMINISTRATIVE ADJUDICATION &

PNJ

PUBLIC LAW REVIEW

PRIVATE LAW REVIEW



Judicial Review of Administrative Discretion: Grounds ;

A. Failure to exercise of discretion:

Sub-delegation, Imposing fetters on discretion by self imposed policy, acting under dictation, non-application of mind, power coupled with duty etc.,

B. Excess of discretion or abuse of discretionary power:

Absence of power, exceeding jurisdiction, irrelevant consideration, leaving out relevant considerations, mixed considerations , mala fide or improper purpose, colorable exercise of power, violations of natural justice, unreasonableness etc.,

• In the above situations, it may be declared as ultra vires of Art.14 , 19 ,21, & the other provisions of the Constitution



Notable instances of misuse or abuse of discretionary power:

Himat Lal.K.Shah v. Police Commissioner Air 1973 SC 87

The famous decision of Lord Greene in Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn , All ER pp. 682 H-683 A

Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489

Purtabpore Company Ltd. v. Cane Commissioner of Bihar AIR 1970 Sc 1896(acting under dictation)

Bangalore Medical Trust v. B.S.Muddappa (improper object)

H.R.Banthia v. UOI AIR 1967 SC1170 (power to grant license to any dealer in gold ornaments (arbitrary exercise of powers)

Hamdard Dawakana v. UOI AIR 1960 SC 554 (Magic Remedies case)

K.A.Abbas v.UOI AIR 1971 SC 481

Air India v. Nargeesh Meerza AIR 1981 SC 1828



Judicial review of Delegated laws (Administrative Rule-making) :

• The Constitutional validity of Delegated or sub-ordinate laws is subjected to Judicial review:

• Exceeding the essential law making functions of the legislature viz., power to impose tax, laying the policy of the Act, exceed the parent Act, violate the procedural norms of delegation or ultra vires the Constitution.

• Inre Delhi laws Case, Rural reservation case in Karnataka

• Judicial review of Quasi-judicial bodies(Administrative adjudicating process)

• Reasons for Administrative adjudicating process

• Judicial review in case of violations of PNJ : Indhira Nehru v. Raj Narain (1975), Kesavananda Bharathi v. Sate of Kerala, (1973) , Maneka Gandhi v.UOI ( 1978)



Tools of Judicial Law Review:A. Public Law Review: Power of SC under Article .32 ,136 r/w Art.21

Power of High Courts under Art.226 &227 (Constitutional law review )B. Private Law Review : Injunction, Declaration, Suit for damages,

affirmative action for the enforcement of public duties (e.g. Sec.133 of Cr.P.C) Ratlam Municipality case. (Non-Constitutional law review )

C. Public Interest litigation (PIL) or Social Action Litigation (SAL):Art.32 , 226, & 14 r/w 21 of the Constitution.

S.P. Gupta v.UOI (1981) supp SCC 87Bandhua Mukti Morcha v. UOI(1987) 1SCC 378

Bhopal Case (Union Carbide Corporation V.Union of India) AIR 1990 SC273.followed by; Charnlal Sahu V.UOI(1989)4 SCC 286Vellore Citizens ‘ Welfare Forum v . UOI (1996) 5 SCC 368Vishaka v. State of Rajasthan ((1997) 6 SCC573

D. Class Actions or Representative suits: Section 91 and Order I Rule 8 of CPC.



Writs under Article 32 &226

• Writs are extra ordinary remedies in cases wherethere is either no remedy available under theordinary law or the remedy available is inadequate.

• In common law, a writ is a formal written orderissued by a body with administrative or judicialjurisdiction; in modern usage, this body is generally acourt. Warrants, prerogative writs and subpoenas aretypes of writs; there are many others.

• It is discretionary power conferred on the Courts toissue or not issue a Writ.


http://en.wikipedia.org/wiki/Common_law



http://en.wikipedia.org/wiki/Jurisdiction

http://en.wikipedia.org/wiki/Court

http://en.wikipedia.org/wiki/Warrant_(legal)

http://en.wikipedia.org/wiki/Prerogative_writ



http://en.wikipedia.org/wiki/Subpoena


• Article.32(Supreme Court) and Article.226(High Courts) areempowered to issue Writs by the Constitution to any citizen,whose rights are violated.

• Under Article 32; an individual can move to the SupremeCourt for enforcement of fundamental right only. However,under Article 226. High Courts can be approached forenforcement of any legal right, including fundamental right .

• Depending upon circumstance, the various types of writs canbe issued. Namely,

• WRIT OF HABEAS CORPUS• WRIT OF MANDAMUS• WRIT OF PROHIBITION• WRIT OF CERTIORARI• WRIT OF QUO WARRANTO



Principles for the exercise of Writ jurisdiction• Writs – Discretionary remedy

• Alternative remedy

• Laches or delay

• Res judicata

• Locus standi -exception in PIL cases

• Prima facie case

• Writ lies against- i. a Person ii. Statutory bodies perform public function or duty, dispute involving public law character(property /title dispute.etc.,)



Writ of Habeas Corpus:• To have a body

• Object: To set free a person illegally detained

• Producing Body in Court Necessary?

• Petition by friend/Relative also. Locus Standi liberalised

• Writ addressed to:– Government

– An Official

– Private Person

• For disobedience : Contempt of Court

• Case: ADM Jabalpur case



Writ of Mandamus:• Mandamus = A Command• Order to do something: demands some activity• Command to perform Public or Quasi-public duty• Writ available against:

– Government– Public Servant – Judicial Body

• Writ not available against– President of India– Governor– Private Individual



Writ of Prohibition:• Order to stay a judicial Proceeding• When?

– Excess of Jurisdiction– No Jurisdiction

• During pendency of proceeding (Prevention)• To whom?

– Judicial Authority– Quasi-judicial Authority– Public Servant having duty to act judicially

• Not to Administrative Authority



Writ of Certiorari:• To whom: Judicial or Quasi-Judicial Authority

• Object: To quash order or decision (Cure)

• When?– Court or Tribunal acts without jurisdiction

– Principles of Natural Justice not followed:• Bias: Personal, Pecuniary

• Audi Alteram Partem

• Speaking Order

– Decision obtained by Fraud, Collusion, Corruption

– Error of Law apparent on the face of record



Writ of Quo Warranto:• Quo Warranto = What authority?• Court inquires into legality of claim to Public Office

a) The office is public and of substantive nature;b) The office is created by the State or by the

Constitution itself; andc) The respondent must have asserted his claim to the

office.• Court ousts incumbent if claim not well founded• Object: To prevent usurpation of Public Office

(Constitutional or Statutory)• When?

– Disqualified for the post– Procedure not followed– Irregular appointment

• Locus standi liberal



The other mechanisms to rectify the Administrative Faults:

Ombudsman

Right to Know & Right to Information

Discretion to Disobey

CVC

Administrative Tribunals

Right to Monetary compensation (Contractual/Tortiousliability/Vicarious liability/ Liability for personnel faults)

Doctrine of legitimate expectation, Public Accountability& proportionality

Privileges & immunities of the administration in suits


“The range of judicial review recognized in thesuperior judiciary in India is perhaps the widest

and the most extensive known to the world of law”

-Pathak,C.J.


Contempt of Court In India

Prof. Nagendramurthy M.P.

Professor of Law

JSS Law College, Mysore

Meaning

Anything that curtails or impairs the freedom of limits of the judicial

proceedings must of necessity result in hampering of the administration of

Law and in interfering with the due course of justice. This necessarily

constitutes contempt of court.

Oswald defines “contempt to be constituted by any conduct that tends to bring

the authority and administration of Law into disrespect or disregard or to

interfere with or prejudice parties or their witnesses during litigation.”

Halsbury defines contempt as “consisting of words spoken or written which

obstruct or tend to obstruct the administration of justice”

Black Odgers enunciates that „it is contempt of court to publish words which

tend to bring the administration of Justice into contempt, to prejudice the

fair trial of any cause or matter which is the subject of Civil or Criminal

proceeding or in anyway to obstruct the cause of Justice.”

Meaning• Anything that curtails or impairs the freedom of limits of the

judicial proceedings

• Any conduct that tends to bring the authority and administration

of Law into disrespect or disregard or to interfere with or

prejudice parties or their witnesses during litigation.

• Consisting of words spoken or written which obstruct or tend to

obstruct the administration of justice

• Publishing words which tend to bring the administration of

Justice into contempt, to prejudice the fair trial of any cause or

matter which is the subject of Civil or Criminal proceeding or in

anyway to obstruct the cause of Justice.

Meaning

V.C. Mishra’s case (1995) 2 SCC 584 –

Contempt of court is defined as an act or omission calculated to interfere with the due administration of justice.

It can be defined as Willful disobedience to, or opendisrespect of a court or judge. Contempt means lack of respector reverence for something.

Baradakanta Mishra V Bhimsen Dixit ; 1973 (1) SCC 446

“Contempt of court is disobedience of the court by acting in position to the authority, justice and dignity thereof. It signifies a willful disregard or disobedience of the court order, it also signifies such conduct as tends to bring the authority of the court and the administration of justice into dispute”.

Contempt of Courts Act of 1971 -

Section 2(a)

“Civil contempt or criminal contempt, it isgenerally felt that the existing law relating tocontempt of courts is somewhat uncertain,undefined and unsatisfactory. The jurisdiction topunish for contempt touches upon two importantfundamental rights of the citizens, namely, theright to personal liberty and the right to freedomof expression. It was, therefore, consideredadvisable to have the entire law on the subjectscrutinized by a special committee.”

Object and Need OBJECT:

To keep the administration of justice pure and Undefiled.

NEED:

To deal sternly with any action which has the tendency to

interfere with, or

Obstruct

the due course of justice.

Contempt jurisdiction is inherent in a court of record from the very nature of court itself.

Conceptual Analysis

CONTEMPT JURISDICTION TOUCHES UPON TWO FUNDAMENTAL RIGHTS : – The right to personal liberty

– The right to freedom of expression

A CONFLICT between

Freedom of speech in the Constitution

versus

Need to safeguard the status and dignity of courts

and

interests of administration of justice.

Contempt of Court – Position Under the

Constitution

• Constitution of India -Art. 129 :Supreme Court to be a court of

record.—The Supreme Court shall be a court of record and shall

have all the powers of such a court including the power to punish for

contempt of itself.

• Art.215: High Courts to be courts of record.—Every High Court

shall be a court of record and shall have all the powers of such a

court including the power to punish for contempt of itself.

• Art.144:Civil and judicial authorities to act in aid of the

Supreme Court.—All authorities, civil and judicial, in the territory

of India shall act in aid of the Supreme Court.

• Art.141. Law declared by Supreme Court to be binding on all

courts.— The law declared by the Supreme Court shall be binding

on all courts within the territory of India.

Contempt of Court – Position Under the

Constitution

• 142. Enforcement of decrees and orders of Supreme Court and

orders as to discovery, etc.— (1) The Supreme Court in the

exercise of its jurisdiction may pass such decree or make such order

as is necessary for doing complete justice in any cause or matter

pending before it, and any decree so passed or order so made shall

be enforceable throughout the territory of India in such manner as

may be prescribed by or under any law made by Parliament and,

until provision in that behalf is so made, in such manner as the

President may by order prescribe.

• Art.261. (1) Full faith and credit shall be given throughout the

territory of India to public acts, records and judicial proceedings of

the Union and of every State.

The Contempt of Courts Act,1971

Objective of the Act.

To define & limit powers of certain courts in punishing contempt of courts & to uphold

the majesty and dignity of law courts and their image in the minds of the public is no way

whittled down.

Contempt of court " - civil contempt or criminal contempt.

Civil contempt " - willful disobedience to any judgment, decree, direction, order, writ or other

process of a court or willful breach of an undertaking given to a court ; [Sec. 2 (b)]

Criminal contempt " - publication (whether by words. spoken or written, or by signs, or by

visible representations, or otherwise) of any matter or the doing of any other act whatsoever

which-

i. Scandalizes or tends to scandalize, or lowers or tends to lower the authority of,

any court ; or

ii. Prejudices, or interferes or tends to interfere with, the due course of any

judicial proceeding; or

iii. Interferes or tends to interfere with, or obstructs or tends to obstruct, the

administration of justice in any other manner ; [Sec. 2 (c)

The Contempt of Courts Act,1971-

Salient Features Innocent publication and distribution of matter - not

contempt (Sec.3)

Fair and accurate report of judicial proceeding - notcontempt (Sec 4)

Fair criticism of judicial act - not contempt(Sec.5)

Complaint against presiding officers of subordinatecourts when not contempt- in respect of any statementmade by him in good faith (Sec.6)

Publication of information relating to proceedings inchambers or in camera - not contempt except in certaincases (Sec 7 )

Act not to imply enlargement of scope of contempt (Sec9.)- Due regard to Constitutional Provisions

Salient Features

Power of High Court to punish contempt of subordinatecourts - Every High Court shall have and exercise thesame jurisdiction, powers and authority, in accordancewith the same procedure and practice, in respect ofcontempt of courts subordinate to it as it has andexercises in respect of contempt of itself :

• Provided that no High Court shall take cognizance of a contempt alleged to have been committed in respect of a court subordinate to it where such contempt is an offence punishable under the Indian Penal Code.(45 of 1860) [Sec.10]

Punishment for Contempt of Courts

• Power of High Court to try offences committed oroffenders found outside jurisdiction (Sec.11)

• Punishment for contempt of court

• (1) Save as otherwise expressly provided in this Act or inany other law, a contempt of court may be punished withsimple imprisonment for a term which may extend to sixmonths, or with fine which may extend to two thousandrupees, or with both. :

• Provided that the accused may be discharged or thepunishment awarded may be remitted on apology beingmade to the satisfaction of the court.

• Explanation.-An apology shall not be rejected merely onthe ground that it is qualified or conditional if theaccused makes it bona fide. [Sec.12]

Essentials of civil contempt of court

1. The making of a valid court order,

2. Knowledge of the order by respondent,

3. ability of the respondent to render compliance, and

4. Wilful disobedience of the order.

Limitation period for initiating contempt proceedings

Sec. 20 - The Limitation period for actions of contempt is a period of one year from the date on which the contempt is alleged to have been committed.

Cognizance of criminal contempt in

other cases – Sec. 15Criminal Contempt, (1) In the case of a criminal contempt, other than

a contempt referred to in section 14, the Supreme Court or the HighCourt may take action on its own motion or on a motion made by-

(a) the Advocate-General, or

(b) any other person, with the consent in writing of the Advocate

General

• (2) In the case of any criminal contempt of a subordinate court, theHigh Court may take action on a reference made to it by thesubordinate court or on a motion made by the Advocate-General or,in relation to a Union territory, by such Law Officer as the CentralGovernment may, by notification in the Official Gazette, specify inthis behalf.

Procedure

Procedure after cognizance - Sec. 17

(1) Notice of every proceeding under section 15shall be served personally on the person charged,unless the court for reasons to be recordeddirects otherwise.

Procedure to decide Contempt of Court - Sec. 18

Hearing of cases of criminal contempt to be by Benches.

(1) Every case of criminal contempt under section 15 shall be heard and determined by a Bench of not less than two Judges.

Appeals – Sec. 19

(1) An appeal shall lie as of right from any order or decision of High

Court in the exercise of its jurisdiction to punish for contempt-

(a) where the order or decision is that of a single Judge, to a Bench

of not less than two Judges of the Court ;

(b) where the order or decision is that of a Bench, to the Supreme

Court

Limitation for Appeal - 19(4)

An appeal under sub-section (1) shall be filed-

(a) in the case of an appeal to a Bench of the High Court, within

thirty days ;

(b) in the case of an appeal to the Supreme Court, within sixty days,

from the date of the order appealed against.

Contempt of Courts-Some Case studies

1. M.B. SANGHI, ADVOCATE v. HIGH COURT OF PUNJAB AND HARYANA [AIR

1991 SC 1834:1991( 3 )SCC 600]

Unable to secure an ad-interim stay in favour of his client, the appellant, a practicing

Advocate, uttered certain words imputing motives to the Sub-Judge in refusing to grant the

stay.- Had the effect of scandalizing the Court and impairing confidence of public in Court—

Hence guilty of contempt Apology-Tendering of--Not to serve as mere defense against rigors of

law- Should reflect remorse and contrition of contemnor- Tendering 'unqualified apology' in

case Court finds him guilty--Not sincere-Contemnor addicted to use of contemptuous language

against Judges and tendering apology--Apology used merely a device to escape--Not to be

accepted--Use of contempt jurisdiction against erring members of legal profession- Courts are

slow in the hope that Bar Councils will take care to maintain ethical norms- Decline in ethical

values in the profession-Arrest of- Timely action by Bar Councils- Need for -held- “It is well-

settled that an apology is not a weapon of defence to purge the guilty of their offence; nor is it

intended to operate as a universal panacea, but it is intended to be evidence of real

contriteness.”

IN RE : VINAY CHANDRA MISHRA

(1995) 2 SCC 584

Facts of the case

Allegations of contempt committed in the face of a High Court were

made against a Senior Counsel. He was asked by the Bench

regarding the provision under which the impugned order had been

passed. He started shouting at the bench. He said would get the

Judge transferred or impeached and threatened by saying that he had

“turned up many judges”. He created a scene in the Court. He lost

his temper and, according to the Judge, “except to abuse him of

mother and sister” the contemnor had insulted him like anything.

The contemnor was also President of the Bar and Chairman of the

Bar Council of India. The matter was referred by the Acting Chief

Justice to the Supreme Court.

IN RE : VINAY CHANDRA MISHRA

(1995) 2 SCC 584

• The Supreme Court took suo motu cognizance and issued a show

cause notice to the contemnor. In his counter and additional counter,

a different version of the incident was put up by the contemnor. He

alleged that in fact it was the judge who had committed contempt of

his own court. He filed application for initiating proceedings

against the Judge. At a subsequent stage written unconditional

apology was also filed by the contemnor by seeking therein to

withdraw his application, petitions, counters, allegations and

submissions. The Court sentenced the contemnor VC Mishra to

undergo simple imprisonment for six weeks. Also he was

suspended from practicing as an advocate for a period of three

years.

IN RE : VINAY CHANDRA MISHRA (1995)

2 SCC 584 - Principle laid down

1. Supreme Court can take cognizance of a contempt of a High Courtand suo motu initiate contempt proceedings against the contemnor.

2. When a High Court is dealing with a case of criminal contempt andthere is justification for adopting summary procedure and punishingthe offender on the spot, the contemnor has no right to examine theJudge or Judges before whom contempt is alleged to have beencommitted.

3. Jurisdiction and power of Supreme Court to take cognizance of anycontempt of court and to award punishment for it are notcircumscribed by any statute.

4. Judiciary in a democratic written Constitution has been assigned aspecial role and hence the need to protect its dignity and authority.There is a need and justification for vesting the extraordinary powerin a court to punish for the contempt of the Court.

5. Every member of the Bench is on a par with the other member ormembers of the Bench. The lawyer or the litigant concerned has toanswer the questions put to him by any member of the Bench.

ARUNDHATI ROY, In Re (2002) 3 SCC 343

Facts of the case

Arundhati Roy, a writer, was interested in the result of a litigation

pending before the Supreme Court. It was alleged that at a dharna

organised in front of Supreme Court she had raised improper slogans

against the Court. When issued a show cause notice, she denied having

raised such slogans. She further stated that the Supreme Court could not

spare a sitting Judge to hold inquiry into Tehelka Scandal. However, when

it came to an absurd, despicable and entirely unsubstantiated petition, it

displayed a disturbing willingness to issue notice. She added that the same

indicated a disquieting inclination to silence criticism and muzzle dissent,

to harass and intimidate those who disagreed with the Supreme Court.

Judgment: The court sentenced her to simple imprisonment for one day and to

pay a fine of Rs. 2000/-. In case of default of payment of fine, she was to

undergo simple imprisonment for three months.

ARUNDHATI ROY, In Re (2002) 3 SCC 343

1. Proceedings under Section 14 of the Contempt of Courts Act are distinguishablefrom Section 15 of the said Act. When action is at the instance of the Court there isno question of any motion of and prejudice from any Judge. Accepting the plearaised by the respondent would amount to depriving all the Judges of the Court tohear the matter and thus frustrate the contempt proceedings which cannot be themandate of law.

2. The judiciary is not immune from criticism but when that criticism is based onobvious distortion or gross misstatement and made in a manner which is designedto low.er the respect of the judiciary and destroy public.

3. Under the Constitution, there is no separate guarantee of the freedom of the pressand it is the same freedom of expression, which is conferred on all citizens underArticle 19(1). Any expression of opinion would therefore, be not immune from theliability for exceeding the limits either under the law of defamation or contempt ofcourt or the other constitutional limitations under Article 19(2).

4. When a respondent has not shown any repentance or regret or remorse, no lenientview should be taken in the matter. It is difficult for the court either to shrug off orto hold the accusations made as comments of an outspoken ordinary man andpermit the wrong headed to err therein.

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