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All About Doctrine of Judicial Review and Ombudsman in India

 Judicial review and Ombudsman in India

Source:BangladeshJournalOfLegalStudies 

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.
 

Also read - Writs under Indian Constitution | Prohibition | Certiorari | Mandamus

[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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