• Admin

Review of Administrative Actions (By Writs)


INTRODUCTION: WHAT IS JUDICIAL REVIEW?

The Indian Constitution, unlike the United States Constitution, expressly provides for judicial review under Article 13 clause (1). It states that all laws that were previously, or immediately before the Constitution of India was adopted, in force in the territory of India, in so far as they are in conflict with the provisions containing the fundamental rights, shall, to the extent of such confliction, be void. Clause (2) of the same article further says that the states shall not make any law that withdraws or curtails any of the fundamental rights, and any law so made in contravention of the rule as mentioned above shall, to the extent of such contravention, be void.[1]


Judicial review is the power of the courts of a country to examine the actions of the legislative and executive branches of the government and to determine their consistency or the lack thereof with regard to the constitution of such country. Actions that are found to be inconsistent are declared unconstitutional.[2] Constitutional judicial review is apparently considered to have commenced with the assertion by John Marshall, fourth chief justice of the United States, in Marbury v. Madison[3], that the Supreme Court of the United States had the power to declare invalid legislation enacted by Congress.


PRINCIPLE OF WRIT JURISDICTION

The Constitution of India confers on the Supreme Court, under Article 32, and on the High Courts, under Article 226, to issue writs and orders of the nature of habeas corpus, mandamus, certiorari, prohibition, and quo warranto. The Supreme Court can issue these writs for the enforcement of fundamental rights, but the High Courts can issue them for the enforcement of fundamental rights as well as for any other purpose.[4] Here, ‘for any other purpose’ means for the enforcement of any common law right or any statutory right.

In one of its earliest judgments, the Supreme Court clearly illustrated that it would not stand on the ground of formality of the petitioner having asked for a specific remedy. This means, the petitioner only has to establish a violation of his rights and the court will issue a remedy appropriate for such violation, irrespective of what remedy has been requested.[5] Indian courts can issue either directions, or orders, or any of the writs other than prerogative writs. This enables the Indian courts to mould relief to meet the particular requirements of this country. It leaves to the courts an ample amount of flexibility to deal with the problems at hand.

1. WHEN IS A WRIT ISSUED?

Thus, it can be affirmed that a writ is issued when there is a violation of a fundamental right, if the issuing body is the Supreme Court; and when there is a violation of either a fundamental right, or for any other purpose i.e., violation of any statutory or common law right, when the issuing body is any High Court.


2. WHEN IS A WRIT NOT ISSUED?

The law of limitation is not applicable to writ jurisdiction, however, a person must seek remedy within a reasonable period of time. However, in Dr. Kashinath G. Jalmi v. the Speaker,[6] the Court held that where public interest is involved, a court should refrain from rejecting an application for a writ of quo warranto on the ground of delay.


CONCLUSION

The prerogative powers of writ jurisdiction conferred by the Constitution of India for judicial review of administrative action is unquestionably discretionary and yet is not restricted in its limits. The discretion however should not be exercised arbitrarily but on sound legal principles and principles of natural justice. In this regard it is vital to put emphasis on the absence of arbitrary power and that it is the first essential of the rule of law upon which the whole constitution system is based. In a system governed by rule of law whenever discretion is conferred upon the executive authorities it must be subject to clearly defined limits. Writs help check administrative discretion. Any person or body of persons who has thus been affected in adverse by the exercise of administrative powers by the executive can get such action remedied by the Courts.


The Constitution is the covers every law and nobody is supreme or above the constitution. Even the judges of Supreme Court who are the protector of the Constitution are not above law and they are bound by the law of the land. The constitutional remedies provided to us bind the executive in their administrative actions and keeps them and the actions of the government in check. In our country the judiciary is the guardian of law which is supreme. Writ jurisdictions are judicial reviews of administrative actions. Judiciaries always operate to ensure that all administrative actions are confined to the limits of the law and does not step outside such limits. Thus, the writ jurisdictions act as judicial restraints of policy decisions which are unreasonable, unfair and against public interest.

[1] S.P. Sathe, Judicial Activism: The Indian Experience, 6 WASH. U. J.L. & POL'Y 29, 38 (2001). [2] C. Neal Tate, Judicial Review, BRITANNICA, https://www.britannica.com/topic/judicial-review. [3] 5 U.S. (1 Cranch) 137 (1803). [4] INDIA CONST. art. 226(7). [5] T. C. Basappa v. T. Nagappa, A.I.R. 1954 S.C. 440. [6] A.I.R. 1993 S.C. 1873.



Author Details: Sidra Javed

The views of the author are personal only. (if any)


Subscribe

Follow Us

  • LinkedIn
  • Facebook
  • Instagram

Search Bar

Advertisements

Juscholars' Updates

Tags

SIGN UP AND STAY UPDATED!

 Our Team    Join Us     Contact Us     About    Disclaimer     Privacy Policy     Terms of Service      Advertise