Judicial review and Ombudsman in India
It is a process under
which the executive and legislative actions are subject to review by the
judiciary in order to keep a check and keep a tab over the proper functioning
of the executive and legislative authorities as per the procedure established
by law.
Scope
For proper and effective functioning of administrative body while remaining within
their bounds is ensured by the courts through judicial review. As while the legislature
delegate certain discretionary power to the administrative, court keep such
power in line with the legal principles. Indian constitution has doctrine of judicial
review as enshrined under article 13, 32, 226, 227 etc.
The court does not
question the merit of the administrative action but only review the process
followed by the authority. Whether the administrative authority acted as per
the law and principle of natural justice or not. Because going into the merits
would be equivalent to substituting the decision of the authority by one of its
own[1].
The court has only
supervisory role because doing any more under the false pretence of preventing abuse
of power would make court guilty of usurping power.[2] The extent of review shall
not be so broad that the administrative agencies may become mere vehicle to
transfer the cases to the courts and diminishing their power to deliver decision
to which they are empowered to handle.
In the case of Air India v Nargesh Meerza & Ors[3]
the Air India while exercising their power under regulation 46 and 47 of Air
India Employees Services Regulations brings disparity between male and female
employees (favouring male) with respect to promotional avenue, retirement ages,
conditions for termination in case of marriage or pregnancy etc, the petitioner
challenged the new regulations and alleged them to be unconstitutional. To which
the SC held that the discretionary power assigned to the managing director are
analogous and a case of excessive delegation. The word in regulation ‘at the
option of’ grants more than sufficient powers that could lead to discriminatory
practises. There is also absence of provisions for appeal in case of abuse of
power by managing director. The regulation 47 is violative of article 14 of the
constitution and struck down the order of managing director of Air India.
The doctrine of Legitimate Expectation
Any person would have a legitimate expectation to be treated in a certain way
by the administrative authority. For example, a senior high court judge is
expecting to become or at least considered to become Chief Justice of the High
Court, but if any person unqualified is made the Chief Justice then the
judicial review of the same can be done as it violates the legitimate
expectation.
Judicial review
Judicial review power is
limited. The judge cannot go on to serve the power, given to the administrative
authorities. The court cannot direct the administrative authority on what
decisions shall be taken and hence court cannot check the merits of the
decision of the administrative body. Keeping alive the Doctrine of separation
of Power. Court has only the power to check the manner in which the power used
is constitutional or not. A judge is not an expert in public policy matters.
Judicial review is not
concerned with the decision of the administrative authority but the decision-making
process. Court under the scope of prevention of abuse of power cannot itself go
on to expand the horizon of judicial scrutiny, otherwise, the court itself be
guilty of usurping power which is unconstitutional in itself.
Court has to maintain and preserve the 'rule of law', and check if the executive authority is using its power in line with the Constitution, i.e., reasonable, rational, non-arbitrary and not in violation of article 14.
Questions of Legality
1. When the decision-making
authority exceeds its discretionary power
2. While using discretionary
power, commits an error
3. Decision taken under discretionary
power is causing a breach of Natural Justice
4. The authority reached a decision that no other reasonable tribunal would have reached.
Grounds of Review
1. Failure to exercise
discretion
a. Sub delegation per se
is not impermissible but if the power delegated to administrative authority is
more than for the purpose of expedient process and ultimate authority is vested
with the lower authority, then it will be under the ambit of judicial review.
b. When the discretionary
power used by the executive is not used with correctly and let say, rule is
applied generally for all the people without any factor taking into
consideration, giving rise to injustice. It is said to causing fetter on discretionary
power and hence will be under the purview of judicial review.
c. If the discretionary
power given to executive is acting under dictation of the any other authority
and is not acting upon its own discretion, it will become a ground of Judicial
Review.
d. When discretionary
power is applied without the application of mind.
2. Excess/abuse of discretionary power
a. When the decision-making
authority has acted upon their whims and fancies and hence imposed an arbitrary
decision.
b. Decision taken by the
authority is outside its jurisdiction.
c. The decision-making
authority has taken the decision without jurisdiction.
d. Decision taken has
left out the relevant consideration.
e. Decision taken has
taken into irrelevant consideration.
f. Decision is mala-fide
in nature
The Uttar Pradesh Coal
Control Order, 1953
The order provided that licensee
has to be taken for coal usage. The traders of coal hence have to take the
license for sale, store, stock and purchase or utilise for coal burning.
The licensing authority
was given the power to grant, revoke, refuse or renew the license and also they
have to record the reason for their decision.
These 2 provisions were challenged,
and the court held the provision unconstitutional. the rationale was that there
was no check provided over the licensing authority, absolute power as given to
the licensing authority, no rules were framed to guide the authority to work in
a reasonable manner and even the requirement to record reasons was ineffective
as no authority/officer was appointed in order to examine the propriety of the reason
stated by the licensing authority.
Associate Provincial
Picture House Ltd. V Wednesbury Corporation[4]
In the following case
Associate Provincial Picture Houses was granted the license by the Wednesbury
Corporation to operate the cinema house in Staffordshire, England. The condition imposed upon them was that no
child below the age of 15 years would be allowed entry inside the cinema,
irrespective of the fact that he or she is accompanied by parents or guardians.
As per the Cinematograph Act cinema house could not operate on Sundays but as
per the Sunday Entertainment Act 1932, operating cinema houses was legalised
subject to the conditions imposed by the local licensing authority. Aggrieved
to which Associate Provincial Picture Houses bought a case against the
corporation and contended that the following power is outside the scope of
their authority.
The court said that they
have no power to intervene in the matter as the corporation has not gone beyond
its legal powers. The court held that the court has the power to intervene only
in the matter where the decision of the administrative authorities is so
unreasonable that no reasonable man could make it. Here the corporation used
their discretionary power as granted to them by the very act. Also, as per the
statute, there lies no appeal from the decision of the local authority. The
court can only intervene if the administrative body has violated the rule of
law. Prima facie it cannot be assumed that the authorities have exceeded their
power and contravened the law.
Lord Green MR laid down
the Wednesbury test. It is also called the doctrine of proportionality which
includes 2 tests:
1. Balancing test – The level of crime and
quantum of punishment shall be the same.
2. Necessity test – For every crime minimum
as well as maximum punishment shall be fixed.
What are the grounds on
which judicial review is applicable to administrative decisions/functions?
The judiciary has the
power to review the decision of the administrative authority on the grounds of
unreasonableness, bad faith, extraneous consideration, unfairness, manifest
injustice and fair play. This all tantamount to the club under the head of
ultra vires act of the administrative body.
Criticism of the Wednesbury test:
1. Opinion - everybody will have their own
opinion.
2. Consideration- how will relevant and
irrelevant consideration will be decided
It will lead to subjectivity.
Limited jurisdiction for
scrutiny- as per the test, only in extreme cases it would be possible for the
courts to check and scrutinised the functioning of the administrative body.
The Wednesbury test was
later on improved by Lord Diplock in the case of CCSU case
Triple I's
1. - Irrationality
2. - Irregularity
3. - Procedural Impropriety
A) Lack of Jurisdiction
1. Law itself is
unconstitutional under which the administrative authority is functioning.
2. The authority is not
properly constituted as required by law is also a ground of illegality.
3. The authority has
presumed the jurisdiction, which actually it does not belong to.
4. Authority didn't follow
the preliminary proceeding, like issuing statutory notice etc
5. Incompetence in
assuming the jurisdiction by the authority.
B) Excess of Jurisdiction- When administrative authority had no jurisdiction
C) Abuse of Jurisdiction- Any mala fide or corrupt motive while performing its
function. (except when the administrative authority is performing quasi-legislative)
D) Failure to exercise jurisdiction- Quasi-legislative cannot be sub-delegated
unless explicitly mentioned in the law, but administrative function can be delegated.
Procedural Impropriety
Administrative authorities have to follow a fair procedure and the principle of natural justice, irrespective of the fact that the law specifically does not provide so, like providing statutory notice for a reasonable time before taking any action etc. Fundamental rights shall never be violated.
Ombudsman
In India, we have Lokpal
through which we can understand the Ombudsman principle. Good governance is
when the government is responsive to the needs of the citizens and responsible
for the same. Ombudsman, which was originated in Sweden, provide a mechanism
for grievance address that differs from that of the judiciary. It is a
non-adversarial adjudicator of disputes. The way it functions is different from
that of the judiciary, as the report and the trial are not made public. In
India, Lokpal is a composition of few members, which deals with the specific
complaint at a time made by the public.
It acts as a watchdog
over the administrative functioning and keeps a tab over the power of the
administrative authority. This has to be an independent body, in order to keep
it unbiased from the political influences and has an independent role. This
institution makes administration free from corruption and also responsible if
there is an abuse of power.
In 2014, the Lokpal and Lokayukta Act was passed. The body for controlling
corruption which chaired at the central level is called Lokpal. It receives
complaints from the public and investigates and inquire into the mater. It also
as the power to award a penalty and impose fines as well (as per chapter 3,4
and 7 of the act).
Composition of Lokpal- a chairperson (former judge of Supreme Court)
with other 8 members. With the certain condition that 50% of the members shall
be from SC/ST/OBC/Minority Group and women.
Selection of Lokpal is done
by a - committee consisting of Prime Minister of India,
Speaker of Lok Sabha, Leader of Opposition, Chief Justice of India or a sitting
Supreme Court judge.
Critique of Lokpal:
1. Timely Disposal -
There is no provision that says about the consequences faced if the matter is
not disposed of within the stipulated time.
2. Adequate jurisdiction
- Lokpal can take the help of other institutions like CBI in the investigation
(where the de-facto control is in the hand of the government), which may result
in political influence in the matter.
[1] State
of Madhya Pradesh & Ors vs M/S M.V. Vyavsaya & Co
[2] Tata
Cellular Ltd. vs Union of India AIR 1996 SC 11
[3] 1981
AIR 1829
[4]
(1948) 1 KB 223
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