Judicial Response to an Administrative Action

Judicial review has certain inherent limitations. It is more suited for adjudication of disputes than for performing administrative functions. It is for the executive to administer the law and function of judiciary is to ensure that government carries out its duty in accordance with the provision of the Constitution. 1.

Mainly the duty of the Court is confine itself to the legislature. Court has to consider whether a decision-making authority exceeded its power, committed an error of law, violated natural justice, and reached a decision which no reasonable man would have reached or otherwise abused its power. Though Court is not to act as court of appeal but it can examine whether the decision-making process was reasonable or not arbitrary or violative under Article 14 of Constitution of the India.2.

Clearly parameters of judicial review must be defined and never exceeded. Unless the order passed by administrative authority is unlawful or unconstitutional, power of Court cannot be exercised. The power of judicial review is superior in nature, but unless that restriction on the power of the Court is observed, the Court, under the guise of preventing the abuse, will itself be guilty of usurping of power.3.

Power of judicial review is not unlimited. If the Courts were to assume jurisdiction to review administrative acts which are ‘unfair’ in their opinion (on merits), the Courts would assume jurisdiction to do the very thing which is to be done by administration. If judicial review were to trespass on the merits of exercise of administrative power, it will put its own legitimacy at risk.4. If there is any limitation on judicial review other than constitutional and procedural that is product of judicial self-restraint.5.

In case keshvanand Bharti v. State of Kerala,6. As Justice Dwivedi observed:

"Structural socio-political value choices involve complex and complicated political process. This Court is hardly fitted to performing that function. In the absence of any explicit constitutional norms and for want of evidence, the Court’s structural choice will largely be subjective. Our personal predilections will unavoidably enter into the scale and give colour to our judgment. Subjectivism is calculated to undermine legal certainty, an essential element of rule of law."

Above observation also reveal another assumption to support an attitude of judicial self-restraint, viz the element of subjectiveness in judicial decision on issues having socio-political significance. One can looks at the decisions of the Supreme Court on certain questions of fundamental issues of Constitutional law. One can see that there is sharp division among judges of Apex Court on such basic questions of power of parliament to amend the Constitution, federal relations, power of president etc. This aptly demonstrates the observation of judges. This would mean that there has been expansion of power of judicial review. One cannot say that it cannot be overturned.

Judicial self-restraint in relation to legislative power manifests itself in the form that there is a presumption of constitutionality when the validity of statue is challenged. In the words of Fazl Ali, ‘the presumption is always in favour of constitutionality of an enactment, and the burden is always upon on him who attacks it to show that there is clear transgression of constitutional principles.’7.

In applying the presumption of constitutionality the Courts sometimes apply an international device called ‘Reading Down’. The essence of devise is that "If certain provisions of law construed in one way will make them consistent with the Constitution, and another interpretation would render them unconstitutional, the Courts will lean in favour of former construction."8. But all this depends on outlooks and values of judges.9.

Rama Muthuramalingam v. Deputy Superintendent of Police,10.

Under the Constitution of India, the judiciary, the legislature, and executive have their own board spheres of operation. It is important that these organs do not encroach on each other spheres and confine themselves to their own otherwise there will always be danger of a reaction. Of Course it is the judiciary which has right to determine the limits of jurisdiction of all these three organs. This great power must be exercised by utmost humility and self-restraints. The judiciary must exercise self-restraints and eschew the temptation to act as a super legislature or Court of appeal sitting over the decisions of administrative authorities. By exercising self- restraints it will enhance its own respect and prestige. When DSP denied the permission to appellant to hold public meeting to propagate principals of their party in view of it could affect the law and order, In these circumstances judiciary should exercise self-restraint and not intervene as maintenance of law and order is executive function, both right to freedom of speech and expression and right to assemble peaceably are subject to reasonable restrictions form the point of view of public order, security of state etc. and they are not absolute rights. Public order is state subject so it is not appropriate for the judiciary to make any intervene. Courts may interfere unless there is violation of Constitution or statutory provision.

M/s. Master Marines Services Pvt. Ltd V. Metcalf & Hodgkin son Pvt. Ltd.11.

In contractual matter, exercise of power by the High Court in furtherance of public interest, setting aside of awarding of contract on basis of term not incorporated in tender document illegal, moreover, when tender instructions conferred power on authority to relax conditions and commercials considerations were in favour of awardees of contract. The Container Corporation of India (CONCOR) that 90% of work under the contract is data entry of a container, for which appellant had quoted 32.00 against 3.75 as quoted by respondent and for this kind of work no license was required under Insurance Regulatory and Development Authority (IRDA). In such circumstances, no public interest was involved which may need interfere by High Court in exercise of extraordinary jurisdiction Under Article 226 of Constitution of India. We are clearly of the opinion that High Court erred in setting aside the order of CONCOR rewarding the contract to appellant.

Gopinath D. & Others v. State of Orissa,12.

Articles 226, 16 of the Constitution of India, policy decision of government is not to be lightly interfered with hence order of High Court, that policy decision by state government in matters of allotment of quarters on rotational basis was illegal is liable to be set aside.

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Based on an Interview with Simranjeet Law Associates, Lawyers in High Court of Punjab & Haryana