Friday, June 14, 2013

Judicial Control Over Administration

The need for control over the administrative power of the executive has been elaborated elsewhere and need to be repeated. This control is exercised internally by the executive and externally by the legislature and judiciary. The legislature controls the policy and finance of the executive. The judiciary on the other hand exercise control over administrative acts to ensure their legality and to protect the citizens from official encroachment of their constitutional or statutory rights. Thus the primary objective of the judicial control is the protection of private rights of citizens which obviously is a task of great importance.


The Courts of law may intervene in any of the following cases:

  • Abuse of power;

  • Lack of jurisdiction;

  • Error in fact finding;

  • Error of law;

  • Procedural error.

Usually the Courts intervene if the public servant uses the authority vindictively to harm the citizen. In legal terminology this is called 'malfeasance'. The judicial remedy is also available in case where the official misconstrues the law and imposes on citizens, obligations which are not required by law. In legal terminology it is called 'misfeasance'. The courts also interfere if the administrator has acted ultra vires or without authority. Similarly, the error in discovering the facts or departure from the rules and procedures are also covered in the scope of judicial control. Above all an administrative act which violates the constitution is liable to be pronounced unconstitutional by the judiciary.



Judicial control may take any of the following forms:

  • Judicial review of administrative acts and decisions;

  • Statutory appeals to the court against the administrative acts and decisions;

  • Suits against the Central or Local Governments by a private party for enforcing contract or torts;

  • Criminal and civil suits against public servants by private parties;

  • Extra remedies like -habeas corpus, mandamus, injunction, certiorari, prohibition, quo warranto .


The patterns of judicial review very form country to country. Even within a country there is a great variation according to the nature of the administrative act. In UK not all the administrative act are covered b judicial review. Three kinds of limitations are imposed:

  • Many administrative acts are excluded from the judicial review by the statutes of Parliament.

  • Courts also do not want to interfere in all administrative acts. Therefore, they exercise some self-limitations, to restrict the review only to the important cases.

  • Certain administrative acts are excluded from the judicial review due to procedural problems.

However, under the British Common Law most of the administrative acts are challengeable on grounds of want of jurisdiction or excess of jurisdiction or abuse of power. In USA, the Congress cannot exclude any administrative acts from judicial review. Unlike British Parliament, US Congress is not supreme and its Acts and statuses are themselves subject to judicial review. Therefore, the judicial review of administrative acts extends to almost the whole field of administrative actions. However, the courts have tended to apply some sort of self-limitations and they review the cases to the extent they deem desirable. No clear definitions of these limitations are available. However, some of them are indicated below:

  • Review lies only if the application is made by a party which has a legal standing.

  • The complainant can apply to the court for review only if all other remedies have been exhausted.

  • Negative orders are usually not reviewed.

  • Courts do not interfere in cases where the decision is better left to the administrative discretion.

  • The court does not interfere with administrative findings supported by substantial evidence.

  • Courts are reluctant to review administrative decisions relating to a legal right which is in the nature of a privilege. For example, in case of gratuity.

  • The courts usually do not interfere in the essential functions of the government like revenue collection, military matters, etc.

During the judicial review the courts have wide powers. They can ever order the consideration of the case 'de novo'. Under the 'Administrative Procedures Act 1946', the reviewing courts is empowered to (a) compel administrative action unlawful withheld or unreasonable delayed; and (b) hold unlawful and set aside administrative action in respect of decisions which are found to be arbitrary, in excess of jurisdiction, contrary to the constitutional and legal provision, without evidence, without observance of proper procedure or are patently absurd. Judicial review can be sought on any of the above grounds.

In India the subject of judicial review has not been properly explored. Normally the courts do not interfere with purely administrative action unless it is ultra vires in regard to the scope and form. They review quasi-judicial decisions of administration on grounds of ultra vires i.e. failure to follow proper procedure. The availability of review is further restricted by the restrictions imposed by the Constitution and the statutes. It is argued by many jurists that these statutes are of doubtful validity as the Indian Parliament is not entitled to impose these restrictions on judicial review because it is not supreme.



Appeals to the courts of law or higher Administrative Tribunals are to be provided by statues. The statutory provisions also make it clear as to whom the appeal will be and what action can be taken by the Appellate Court. Usually the Appellate Authority has wide direction. It can completely accept the decision, modify it or set aside by ordering the action de novo.



The suitability of the State and Local bodies is subject to many limitations which vary from country to country. The liability to be sued may arise on account of the contract or torts.

About contracts there is not much problem. The liability of the government to pay for the service which it has ordered is well expected. The government can, therefore, be used, for the enforcement of a contract. Only the modalities and procedure etc., vary from country to country.

About torts i.e. damages for wrongful action, the situation is different. In UK, no suit for torts lies against the Government exercising its sovereign power. This is based on the doctrine that King can do wrong. After the passage of 'Crown Proceedings Act, 1947', the State is responsible and can be sued for wrongful acts of its employees. This is, of course, subject to two limitations:

  • Sovereign functions like war, public order etc., were excluded;

  • No secret documents can be compelled by the Courts.

With the passage of this Act, the position has improved, but, the right of the citizen to sue the Government for torts is still severely limited. In USA neither the Federal Government not the States can be sued for the torts except to a very limited extent. In France and Continental countries the Principle of 'Droit Administtratif' prevails. The liability of the state for the wrongful act of its employees is fully established. The administrative courts are freely awarding damages to the citizens against the wrongful acts the employee of the Government.

In India suability of the Government is determined by Article 300 of the Constitution. This article lays down that the Union of India and the State Government may sue and be sued under the circumstances which were provided by law before the Constitution came into force. The position before the Constitution was that the Government could not be sued for torts for purposes of sovereign function but could not be sued for contracts. It is the same situation which prevailed in London before 1947. As already mentioned in UK position has improved after 1947, but has continued to be the same in India. The position of law is said to be highly unsatisfactory.


The main question is how far the public officials are personally liable for their administrative actions. The position again varies from country to country. In most of the countries the heads of the State and judicial officials enjoy immunity from civil and criminal action in respect of their functions. Others usually do not enjoy such immunity.

In UK the monarch is completely immune from legal liability for all actions whether performed in public or private capacity. In USA the President is immune from any process of the court during this term of office. Immunity does not extend to the period after he demits office. Similar provisions exist for the Governors of the State.

In India the President and Governors are immune from legal action for any act done in exercise of their powers and duties as laid down in the Constitution. During their terms of office (but not afterwards) even in respect of their personal acts they are immune from any criminal proceedings, imprisonment or arrest. Civil proceedings in respect of their personal acts permissible even during their term of office but only after giving two months' notice.

Judicial officials are completely immune from liability in respect of their acts or commissions in their judicial capacity. In USA, UK and India and many other countries non-judicial officials of the Government do not enjoy such immunity. Again the situation varies from country to country.

In UK non-judicial official cannot be sued in his personal or individual capacity for any contract entered on behalf of the Government. But he can be sued for torts for his illegal acts. "Public Authority Protection Act 1893" protects the acts of public officials done in pursuance of the Act of Parliament. The criminal liability of a public servant is the same as in the case of any other citizen.

In USA the public officials are personally liable for their illegal acts. The situation is more or less like that of UK. In India officials are exempt from liability for contracts. For excess of jurisdiction the officials is personally liable inspite of bonafides. For torts the civil servant is fully liable unless he had acted in good faith starting civil proceedings against him.

As regards the criminal liability, previous sanction of the President of the Governor is required for initiating proceedings against civil servants who are appointed by the President/Governor for acts done in discharge of their official's duties. For their personal actions their criminal liability is the same as that of any private citizen.



The extra-ordinary remedies consist of 5 writs (a) habeas corpus; (b) mandamus; (c) prohibition; (d) ceritiorari; and (e) quo warranto

In USA there is an addition of 6th i.e. injunction.

Historically these writs started in England where they were issued in the name of 'King' and were known as prerogative writs. These writs are called extraordinary because except habeas corpus and to certain extent prohibition, they are granted by the Court in their discretion and not as a matter of right. Another important limitation is that these writs are granted only when there is no other adequate remedy available.

In USA and India the question of prerogative does not arise. In USA these remedies are provided partly by common law and partly by statute. In India provisions have been made about these writs in the Constitution.

The relating to these writs is completely and cannot be easily summarized. However, a number of generalizations are given below which should be read with the note of caution that is bound to be incomplete and insufficient in detail.


Habeas Corpus

It literally means, 'you shall produce the body'. Several writs go by this name. We discuss here the most  important one which is called. 'Habeas Corpus ad subjiendum recipiendum'.

It has been defined as a, 'writ to the person detaining another and commanding him to produce the body of the prisoner at a certain time and place with the day of his arrest and detention to submit and receive whatever the court or the judge awarding the writ shall consider in this behalf.

The purpose of the writ is to determine whether the person seeking remedy is detained legally or illegaly. It may be directed to a private person as well as public officer. The writ is granted as a matter of right and not at the discretion of the court.

The procedure for this writ laid down by the Supreme Court of India is indicated below:

  • Application is moved in the registry by the person detained or by any other person if the former is not in a position to do so;

  • The application is heard by a division court or a vacation judge;

  • If the court finds a prima facie case it issue rule nisi asking the person against whom the writ is filed to appear and show cause why is should not be granted;

  • On the day hearing if now cause is shown or the court is not satisfied with the cause shown the detained person is set at liberty and the rule is discharged.

  • It is a very powerful writ to safeguard the liberty of the citizens.


It literally means mandate or command. It can be defined as 'a command issuing from a common law court of competent jurisdiction in the name of the State or the sovereign directed to some corporation, officer, inferior court, requiring the performance of a particular duty therein specified which duly results from the official station of the party, to whom the writ is directed or from the operation of law.'

It is discretionary writ and issued subject to the following conditions:

  • The applicant must have a legal right to the performance of a legal duty by the agency/officer against whom the Mandamus is sought.

  • The right must be a public right and duty sought to be performed of a public nature.

  • The legal right in question must reside in the applicant himself.

  • Petition must be made in good faith.

  • The petition can be made only if a demand for performance of duty has been made and refused.

The writ of Mandamus is used for compelling public officials and bodies to carry out their legal duties. It can also be used to compel restoration of the public office of which the holder has been wrongfully dispossessed and to ensure exercise of a jurisdiction by inferior court and quasi-judicial tribunals.

This writ is not issued against he Heads of the State and is also not granted if it is likely to prove unavailing.



It is defined as 'as an extraordinary judicial writ, issuing out of a court of superior jurisdiction and directed to an interior court for the purpose of preventing the inferior tribunal from usurping a jurisdiction with which is not legally vested'.

The writ of prohibition plays some part in the control of administrative tribunals which have quasi-judicial functions. It is not of much significance in respect of administrative actions.


Prohibition and Injunction

Injunction is not mentioned in the list of writs in the Constitution of India. Indian courts have, however, the power to issue injunctions and they freely do so. Injunction has been defined as 'a judicial process operating in person and requiring the person to whom it is directed to do or refrain from doing a particular thing'.

In England and USA injunction is not a common law writ but is an equity writ. Injunction is of two kinds: (a) mandatory; and (b) preventive.

Mandatory injunction resembles Mandamus. The difference, however, is that mandamus cannot be used against private person while the injunction primarily is a process of private law. Mandamus is a remedy of a common law while the injunction is an arm of equity.

The difference between injunction and prohibition is that the former is directed to the litigant parties, while the later is directed to the court itself. Injunction recognizes the jurisdiction of the court in which the proceedings are pending while prohibition questions it.


Literally it means, to be certified and to be made certain. It has been defined as "a writ issued by the superior court to an inferior courts of record, or other tribunal or officer, exercising a judicial function, requiring the certification and return to the former of some proceedings then pending, or the record and proceedings in same cause already terminated, in cases where the procedure is not according to the course of the common law".

This writ lies against a judicial act and only in cases of substantial errors and not formal ones. Generaly it is not granted where an adequate remedy is available. The effect is to quash or affirm the proceedings of the lower court or the tribunal. It is an important instrument of control in respect of quasi-judicial functions of administrative, officers and tribunals. Mandamus and Certiorari are typical administrative law remedies.



It literally means, "what warrant or authority". It has been defined as, "the remedy or proceedings whereby the court enquires into the legality of the claim which a person asserts to an office or franchise and to oust him from its enjoyment if the claim be not well founded".

It is an ancient common law writ. Its purpose is to oust a usurper from public office. Conditions of granting this writ are:

  • The office must have been created by some statue;

  • The duties of the office must be of a public nature;

  • The tenure of the office must be permanent;

  • Person proceeded against must be in actual possession and use of the office in question.

The person petitioned is called 'respondent' and the petitioner of the writ is called the 'relator'. The writ is granted only when the latter has come interest in the matter. The word interest has, however, been interpreted widely. Proceedings are of a civil nature and the burden of proof on the respondent. The nature of orders could be "ouster' of 'Instal', or 'Vacancy'.


Power of Indian Courts

In India only the Supreme Court and High Court have the jurisdiction to issue the writs. The Supreme Court can issue directions, orders or writs to enforce fundamental rights. Similarly, High Courts can issue directives, orders or writs to enforce fundamental rights and for any other purpose.

It may be noted here that the powers of the courts in India are much wider than merely to issue other directives and orders also.

Another notable feature of writ jurisdiction in India is just that the jurisdiction of high court is much wider than the jurisdiction of the Supreme Court. The Supreme Court can issue writs only for the enforcement of the fundamental rights. The High Courts on the other hand can issue writs for any other purpose. This is a very wide discretion and the court can issue writs in any matter in which it feels that the interference of the courts is necessary.


Limitations of Judicial Control

The judicial court of administrative activities has some limitations which are discussed below:

  • The courts cannot intervene of their own accord. They take notice only when approached by an individual or a group of individual complaining that some of their rights have been infringed or are likely to be infringed by the actions of the Government servants.

  • Secondly the judicial control is a control after the event. One can seek a judicial remedy only after the damage has been done. However, the judicial decisions can provide good guidelines for future guidance of the administrative officers.

  • A number of statutory provisions prohibit the judiciary from taking notice of various administrative activities.

  • The process of seeking judicial remedy has become a very costly one. Ordinary citizens of the country do not have the financial resources necessary to seek such a remedy.


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