The second concept, ‘equal protection of laws’, is positive in content. It does not mean that identically the same law should apply to all persons, or that every law must have a universal application within the country of differences of circumstances. Equal Protection of the laws does not postulate equal treatment of all persons without distinction. Men are unequal; consequently, a right conferred on persons that they shall not be denied “the equal protection of the laws” cannot mean the protection of same laws for all persons similarly situated. It denotes equality of treatment in equal circumstances. It implies that among equals the law should be equal and equally administered, that the like should be treated alike^[5] without distinction of race, religion, wealth, social status or political influence.^[6] Equality is one of the magnificent corner-stones of Indian democracy.^[7] The right to Equality is a basic structure of the Constitution^[8]. Art.14 applies to all persons and is entitled to the benefit of this Article.^[9]

A decision is said to be arbitrary when it is based on mere whim or caprice or on purely subjective likes or dislikes or irrational beliefs. Arbitrariness means lack of objectivity. It also means lack of predictability. ‘Arbitrariness’ as a concept in law is similar to the concept of ‘unreasonableness’. An action is arbitrary when no reasonable person has acted in that manner. The law never confers power to act arbitrarily. Arbitrariness also results in discrimination. Art. 14 has evolved into a very meaningful guarantee against any action of the administration which may be arbitrary, discriminatory or unequal. This principle manifests itself in the form of the following propositions:

1. A law conferring unguided and unrestricted power on an authority is bad for arbitrary^[10] power is discriminatory: The Supreme Court in Naraindas v. State of M. P.^[11] laid down the applicable principle in the following words: “Art. 14 ensures equality before law and strikes at arbitrary and discriminatory state action” A powerful reiteration of the principle that uncontrolled and unguided discretionary power is incompatible with Art. 14.^[12]

2. Art. 14 illegalizes discrimination in the actual exercise of any discretionary power: It envisages a situation in which administrative authority may implement a statute in a discriminatory manner, or may not follow the policy or principle laid down in the Act to regulate its discretion. In such a case, the charge of violation of equal protection may be laid against the Administration and its action quashed under Art. 14. This Art. secures all persons in India “not only against arbitrary laws but also against arbitrary application of laws.”

3. Art. 14 strikes at arbitrariness in administrative action and ensures fairness and equality of treatment:^[13] Arbitrary state action infringes Art. 14. The Apex Court in E. P. Royappa v. State of Tamil Nadu^[14] held that equality is antithetic to arbitrariness.^[15] To challenge an arbitrary action under Art. 14, the petitioner does not have to show that there is someone else similarly situated as he himself, or that he has dissimilarly treated. On this point, the Supreme Court has observed in A. L. Kalra v. P& E Corp. of India Ltd.^[16] :

“Art. 14 strikes at arbitrariness in executive / administrative action because any action that is arbitrary must necessarily involve the negation of equality.”

Chapter-1

Judicial Control of Administrative Action & Article 14

State may confer wide discretionary power upon an authority. The Discretion is necessary because the administrative authority should have a right to choose and to select between more than one possible course of actions or options.^[17] Nevertheless the power has to be exercised reasonably within the sphere of the statute and the said exercise of power must stand the test of judicial scrutiny.^[18] Exercise of discretionary power cannot be unrestricted. In exercising wide power, the Govt. will consider all relevant aspects governing the question.^[19] The power must be exercised in a reasonable way in accordance with the spirit of the Constitution.^[20]

Judicial control mechanism of administrative discretion is exercised at two levels, viz.

1. at the stage of conferment of discretion, by examining the law in question and holding the same to be unconstitutional if it confers broad discretion without laying down any policy or principle to regulate its exercise;

2. at the stage of application of law and use of its discretion by the administration in a specific factual situation, by examining the administrative action with a view to seeking whether it conforms with the legislative policy enunciated in the relevant statute.

The general principle is that conferment of an arbitrary, sweeping, uncontrolled discretion on an administrative authority violates Art.14 as it creates the danger of discrimination among those similarly situated which is subversive of the equality doctrine enshrined in Art. 14. There is doctrine of presumption of validity of a statute under Art. 14 and the onus is upon the individual who challenges it to show that it is discriminatory. This can be illustrated by the following few cases.

In Punjab v. Khan Chand^[21], the Supreme Court struck down a law empowering the executive to requisition movable property for the law in question did not lay down any purpose, not even public purpose, for requisitioning property, or that the power could be exercised only in an emergency or in some special contingency; the executive was not required to specify the purposes of requisition; no principles were laid down for payment of compensation; and the power of requisition could be delegated even to a petty official. The statute, thus, conferred an uncontrolled power on the government. A regulation made by Air India, a statutory corporation, fixed the normal age of retirement of air hostesses at 35 years but authorized the managing director to extend the same to 45 years at his option subject to other conditions being satisfied. The Supreme Court ruled in Air India v. Nergesh Meerza^[22], that the regulation armed the managing director with uncanalised and unguided discretion to extend the age of air hostesses at his option. He could exercise his discretion in favour of one air hostess and not in favour of the other and this might result in discrimination. Apart from the absence of guidelines in the regulations, there was no procedural safeguard, e.g., requiring the managing director to record reasons for refusing to extend the retirement period, and appeal to a higher authority against his order. The matter of extension was entirely at his mercy and sweet will.

If a statute confers wide powers but contains procedural safeguards, then it can be upheld as valid.^[23] Thus, in Tika Ramji v. U.P.^[24], S.15 of the U.P. Sugarcane Act, 1953 gave to the Cane Commissioner, after consulting the factory and cane growers’ co-operative society, power to reserve any area and assign any area for the purpose of supply of cane to a factory. An appeal against such an order lay to the government. A rule framed under the Act laid down the factors which the commissioner had to take into consideration in passing his order. The power given to the commissioner was held bad under Art. 14 as it was well-defined and contained safeguards against its exercise in a discriminatory manner.

In F.N. Roy v. Collector of Customs[25], S. 167(8) of the Sea Customs Act, 1878 was challenged on the ground that it left to the uncontrolled discretion of the customs authorities to decide the amount of the penalty to be imposed. But the Supreme Court interpreted the section in such a way that the maximum penalty which could be imposed under it was Rs. 1000/-; the discretion was vested in high customs officials, the proceedings were quasi-judicial, and there were appeals from their orders. The provision was, therefore, upheld.

An important case in this area is Organo Chemicals Industries v. India[26] S. 14-B of the Employees’ Provident Funds Act, 1952, provides that where an employer makes payment of any contribution to the fund, the Central Provident Fund Commissioner may recover from the employer such damages, not exceeding the amount of arrears, as he may think fit to impose. Before imposing damages, the employer is to be given a reasonable opportunity of being heard. The broad power given to the commissioner was upheld by the Supreme Court mainly because the law in question was social in nature and beneficial to the labour. However, the court adopted the following formal arguments to uphold the commissioner’s vast power to impose damages: the power to be exercised according to natural justice and, as such, he has to make a speaking order; such an order is subject to Art. 226 so that “perversity, illiteracy, extraneous influence, mala fides and more than 100 percent of the amount defaulted as damages and the commissioner is “a high official”. In awarding damages he “usually takes into consideration, as he has done here, various factors viz. the number of defaults, the period of delay, the frequency of defaults and the amounts involved.”

Again, the power of an assistant collector of customs to order search of the premises of a person if he had reason to believe that the person had in his possession goods liable to be confiscated was upheld as he required to send forthwith a copy of any record made by him to the collector, and he could be prosecuted if took action without “having reason to believe”^[27]S. 132 of the Income Tax Act, 1961, which provides for search and seizure, has been held valid with reference to Art. 14.^[28] S. 46 of the Andhra Pradesh Charitable Endowments Act, 1966, empowers the commissioner to make an enquiry into the allegations or charges against the mahant and order his removal in case that charges were established. The provision was held valid on the ground that the requirement of quasi-judicial procedure excluded any possibility of abuse of administrative discretion.^[29]

The Supreme Court may read the procedural requirement of hearing into a statute to save it from unconstitutionality under Art. 14. Thus, in Mysore v. Bhat, where a law authorized the competent authority to declare a slum area, to declare houses unfit for human habitation, and declare a slum area as a clearance area, the court read natural justice into the law to upheld it under Aty.14. In Maneka Gandhi v. India[30] was government, inter alia, to impound a passport of a person in public interest, and the words “in the interest of general public” were vague and undefined. The court upheld the provision by reading the requirement of natural justice therein and also because the words in question could not be characterized as vague and undefined as these very words are to be found in Art. 19(5). These words provide sufficient guidelines to the unfettered; the reasons for impounding the passport are to be recorded in writing and a copy thereof is to be given to the affected person save in certain exceptional circumstances; the power is vested in a high authority, and, according to the court when “power is vested in a high authority like the Central Government, abuse of power cannot be legally assumed.

In some cases, the Supreme Court has upheld statutory provisions seemingly conferring power in wide terms even when no procedural safeguards were mentioned therein but when the court felt satisfied that the broad statement of policy in the preamble of the concerned statute, or the general objectives of the statute, or the statutory provisions furnished sufficient guidance for the executive to cexercise its powers. Thus, an Orissa Act authorized the state govt. to take over any estate from the zamindars. Acc. to the Preamble, the statute was passed in pursuance of the Directive Principles of State Policy to secure economic justice to all. Rejecting the challenge that the provision was discretionary as it gave an unfettered discretion to the state govt. to take over any estate, the court took the view that there was a clear enunciation of the policy in the Act in question, and the discretion vested in the govt. had to be exercised in the light of this policy. Sooner or later all states must be abolished, but all estates could not be taken over at once due to financial difficulties and, therefore, from the very nature of things it was necessary to give “a certain amount of discretionary latitude” to the state govt.[31]

S.10 (1) of the Industrial Disputes Act, 1947 which empowers the govt. to refer an industrial dispute to a board for settlement, or a court of enquiry or a tribunal for adjudication has been upheld.^[32] The general objective of the statute have been held to be sufficient in controlling the power of the govt. In Indravadan v. State of Gujarat,^[33] the Supreme Court held Rule 6 of the Gujarat Judicial Services Recruitment Rules, 1961 providing that a Civil Judge after completing 48 years of age will not be eligible for promotion as Assistant Judge as arbitrary and unreasonable.^[34] . In Gujarat University v. Rajiv Bhan^[35] the Court quoted the rule framed by the Gujarat University which had provided that for admission to superspeciality the first preference will be given to candidates from Gujarat Universities and thereafter, seats remaining vacant, and held it to be unreasonable and irrational.

The Kerala Education Bill gave broad powers of control to the Kerala Govt. over private schools in the state, as for example, power to recognize newly established schools; power to take over any category of schools in any specified area through a notification. These provisions were challenged as being discriminatory on the ground that they were capable of being exercised “with an evil eye and unequal hand.” The Supreme Court held that the clauses of the bill had to be interpreted and read in the light of the general policy laid down in the Preamble, namely, to provide for better development of education in the state.^[36] A system of selection of candidates for admission to the state medical or engineering colleges by interview and viva voce examination has been upheld against the challenge that the interviewers may act arbitrarily and manipulate the results and so it contravenes Art. 14. The Supreme Court has, however, imposed certain restrictions to reduce the chance of misuse of power. Not more than 15 per cent marks should be allotted to the viva voce test and that it is properly conducted by competent persons.^[37]

In Satwant Singh v. Assistant Passport Officer^[38], the Passports Act, 1967, which gave power to the passport officer to give or refuse a passport without specifying any guidelines for the exercise of such power, was held invalid. The court asked the Parliament to specify the criteria in accordance with which the passport officer was supposed to exercise discretion.^[39]

In the case of recruitment to services the court is prepared to concede a higher relative value to the viva voce test, say up to 25 percent of the total marks.^[40]

In Pannalal Binjraj v. India,^[41] “administrative convenience” was regarded as a sufficient criterion for the exercise of administrative power. The income tax statute, after providing that a person is to be assessed either at the place of business or residence, authorizes the tax authorities to transfer a case while others similarly situated could continue to be assessed at the place of their business or residence; it prescribes no hearing or recording of reasons. The court upheld the provision as it has been enacted for “administrative” and “convenient and efficient assessment” of income-tax. Rule 3 of All India Services (Conditions of Service- Residuary Matters) Rules, 1960, provides that if the Central Govt. is satisfied that the operation of any rule under the All India Services Act, 1951 causes undue hardship in any particular case, it may dispense with or relax the requirements of that rule “to such extent and subject to such exceptions, and conditions as it may consider necessary for dealing with the case in a just and equitable manner.” In R. R. Verma v. India^[42], the Supreme Court rejected the contention that the provision vested absolute and arbitrary discretion in the govt. with no prescribed objective standards or guidelines. The rule is really meant to relax, in appropriate cases, the relentless rigour of a mechanical application of the rules, so that civil servants may not be subjected to undue and undeserved hardship. Sufficient guidance can be had from the very rule and from the scheme of various statutory provisions dealing with the conditions of the service of the members of the All India Service. The govt. is bound to exercise the power in public interest to ensure efficiency and integrity of civil servants. The court went on to assert that “the exercise of the power of relaxation like all other administrative action affecting rights of the parties is subject to judicial review on grounds now well known.”

In several cases, the validity of laws creating special courts to deal with problems of law and order has been questioned. Such a court functions according to a procedure which is less formal, and hence less favourable to the accused, than the ordinary criminal procedure. In West Bengal v. Anwar Ali Sarkar^[43], was involved a law enacted by the West Bengal legislature permitting setting up of special courts for “the speedier trial” of such offences or cases or classes of cases as the state govt. might direct by a general or special order. These courts were to follow a procedure less advantageous to the accused in defending himself than the normal criminal procedure followed by ordinary criminal procedure. The Act was held invalid as it made no reasonable classification; it laid down “no yardstick or measure for the grouping either of persons or of cases or of offences” triable by special courts so as to distinguish them from others outside the purview of the Act. The govt. was given the power to pick out a case of person and hand it over to the special tribunal while leaving the case of another person similarly situated to be tried under the ordinary criminal procedure. Vesting of an unregulated discretion in the executive was not justified. The necessity of “speedier trial” was a valid and reasonable classification. On the other hand, in Kathi Raning v. Saurashtra^[44] a provision practically similar and parallel to the one involved in the Anwar Ali case was held valid because the court found that the policy was stated in the preamble to the Act, which was to provide for security of the state, maintenance of public order and maintenance of supplies and services essential to the community, and that the govt. was expected to select such offences, classes of cases for trial in special courts as were calculated to affect matters mentioned in the preamble. Comparing the above two cases, it would appear that the main difference in the terms of the statutes, which resulted in different judicial verdicts as to their validity, was that the preamble to the Saurashtra Act was more elaborately worded than that of the Bengal Act. While the term “speedier trial” used in the Bengal Act to set up special courts was held to be indefinite, the various matters mentioned in the preamble to the Saurashtra Act were held to give more definite guiding principle to control administrative discretion. In essence, the difference appears to be more of a drafting nature than that of substance. One difference appears to be more of a drafting nature than that of substance. One difference of substance between the two cases, however, was that whereas in the West Bengal case the statute authorized the govt. to pick out any individual case for trial by a special court, in the Saurashtra case the government could specify only a class of offences or cases for the purpose, and not an individual offence.

The principle laid down in the above cases has been reiterated and applied in several other cases pertaining to special courts, though the result reached by the courts may not always appear to be quite satisfactory. Thus, in Kedar Nath v. West Bengal,^[45] the law setting up special courts mentioned the offences triable by them but gave discretion to the govt. to allot individual cases for trial by them but gave discretion to the govt. to allot individual cases for trial to these courts. Under the statute, any particular case could be allotted to, or withdrawn from, a special court. It was argued that the provision vesting an unfettered discretion in the govt. to do so was discriminatory and, therefore, void under Art. 14.^[46] The court rejected the argument. It stated: “There may be endless offence, and in many cases there may be nothing that justifies or calls for the application of the provisions of the special Act.”^[47] In the opinion of the court, it was necessary to give some competent authority to make a selection of cases mentioned above, but a subtle difference between the situation in the two cases may be noted: whereas the Saurashtra law made no classification of offences for trial by special courts, and power to refer specific cases was conferred on the executive subject to this classification. Nevertheless, by its holding in the Kedar Nath case the court did dilute to some extent the principle evolved by it in the Saurashtra case.

Again the Supreme Court upheld the provisions of the Special Courts Act, 1979. S.5 (1) of the Act provided that if the Central Govt. was of the opinion that there was a prima facie case of the commission of an offence by a person who held high public or political office in India and that “in accordance with the guidelines contained in the preamble” to the Act, the said offence ought to be dealt under the Act, the Central Govt. “shall make a declaration to that effect.” The purpose underlying the Act was to deal with cases of misuse of powers by high ranking office holders through a quickened trial. The Supreme Court ruled[48] that this provision was not hit by Art. 14 as it did not confer “absolute, naked and arbitrary” power because:

1. The govt. had to exercise discretion in accordance with the guidelines contained in the preamble;

2. There had to be proper application of mind regarding the existence of prima facie evidence of the commission of an offence;

3. The power had been conferred on a high authority and, therefore, it must be presumed that the govt. would act in accordance with law and in a bona fide manner.

In Re The Special Courts Bill, 1978,^[49] the Supreme Court upheld the Special Courts Bill, which provided for special courts to deal with offences committed by persons who had held high political offices during the period of emergency imposed by the Indira Gandhi govt. in 1975. The bill gave power to the govt. to refer such cases to the special courts. The Court upheld the grant of discretion because it was controlled by the policy of the Act. The court held that the grant of discretion to refer to special courts any case pertaining to abuse of power during the period of emergency was valid because that constituted a class. However, the court objected to the grant of discretion to refer a case of abuse of power before the period of emergency did not form a distinct class.^[50]

Chapter-2

Judicial Review of Administrative Action

The system of judicial review of administrative action has been inherited from Britain. It is on this foundation that the Indian courts have built the superstructure of control mechanism. The whole law of judicial review of administrative action has been developed by judges on case-to-case basis. Consequently, a thicket of technicality and inconsistency surrounds it.[51]

Jurisdiction of the supreme court Under Art. 32 and Art. 136:

The Supreme Court is invested with the power of judicial review under Art. 32. Art. 32(1) guarantees the right to move to the Supreme Court for the enforcement of Fundamental Rights and Art. 32(2) invests the Supreme Court with the power to issue directions, orders or writs for the enforcement of these rights.

Art. 136 which is in the nature of a residuary reserve power of judicial review in the area of public law lays down that the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal.

Jurisdiction of the high courts under articles 226 & 227[52]

Art. 226 empowers the High Courts to issue directions, orders or writs for the enforcement of Fundamental Rights and for any other purpose also. The power of the High Court under Art. 226 is discretionary^[53] and the power cannot be exercised as a court of appeal.^[54]

Constituency of public law review: against whom writ can be issued

Authorities amenable to the writ jurisdiction of the Supreme Court:

The threat to fundamental rights may arise from the following sources:

1. Govt. and Parliament of India, Govts. and legislatures of States and local Govts.

2. Govt. departmental undertakings.

3. Agencies incorporated by statutes.

4. Agencies registered under statutes.

5. Courts.

6. Private individuals and bodies.

Judicial opinion is clear that the authorities falling under the first three categories are amenable to the writ jurisdiction of the Supreme Court and are included within the definition of ‘State’ in Art. 12.[55]

Agencies falling under the fourth category may be included within the term ‘State’ and, therefore, are amenable to the writ jurisdiction of the Supreme Court if such authorities are instrumentalities or agencies of the Govt.[56]

Authorities amenable to the writ jurisdiction of High Court:

The High Courts have a wider power to issue writs against ‘any person or authority’ for the enforcement of fundamental rights and any other legal right. The writs of habeas corpus and quo warranto which can be issued against private individuals and public officers, respectively. In Rajsoni v. Air Officer-in-charge Administration,^[57] the Supreme Court further held that a private body even if it not a State under Art. 12 but if governed by a statute is bound to provide the benefit under the statute and hence, the benefit of writ would be available. The Supreme Court in R. D. Shetty v. International Airport Authority^[58] has rightly extended its reach in matters of issuing writs by liberalizing the test which brings an administrative authority within the gravitational orbit of the term ‘State’ in Art. 12 of the Constitution. In Rajathan Eletricity Board v. Mohan Lal^[59] the court held that a constitutional or statutory authority would be within the meaning of the expression ‘other authorities’ if it has been invested with statutory power to issue binding directions to third parties, the disobedience of which would entail penal consequences or it has the sovereign power to make rules and regulations having the force of law.^[60]

Doctrine of Legitimate Expectation:

The doctrine of legitimate expectation belongs to the domain of public law and is intended to give relief to the people when they are not able to justify their claims on the basis of law. The term was first used by Lord Denning in Schmidt v. Secretary of State for Home Affairs[61] in 1969 wherein the govt. had cut short the period already allowed to an alien to enter and stay in England, the court held that the person had legitimate expectation to stay in England which could be violated without following a procedure which is fair and reasonable.

In India, Apex Court has developed this doctrine in order to check the arbitrary exercise of power by the administrative authorities. The first reference to the doctrine is found in State of Kerala v. K. G. Madhavan Pillai.^[62] In this case, the govt. had issued a sanction to the respondents to open a new unaided school and to upgrade the existing ones. However, after 15 days, a direction was issued to keep the sanction in abeyance. This order was challenged on the ground of violation of the principles of natural justice which is sufficient to vitiate an administrative order.^[63]This doctrine provides a central space between ‘no claim’ and a ‘legal claim’ wherein a public authority can be made accountable on the ground of an expectation which is legitimate. A natural habitat for this doctrine can be found in Art. 14 of the Constitution which abhors arbitrariness and insists on fairness in all administrative dealings. The doctrine has negative and positive contents both. If applied negatively an administrative authority can be prohibited from violating the legitimate expectations of the people and if applied in positive manner an administrative authority can be compelled to fulfill the legitimate expectations of the people.^[64] Further, in case of SC and WS Welfare Association v. State of Karnataka,^[65] the govt. had issued a notification notifying areas where slum-clearance scheme will be introduced. However, the notification was subsequently amended and certain areas notified earlier were left out. The Court held that the earlier notification had raised legitimate expectation in the people living in the area which had been left out and hence, legitimate expectations without a fair hearing.^[66] In U. T. Chandigarh v. Dilbagh Singh,^[67] the Court brought in the concept of ‘detriment’ in legitimate Expectation Theory and held that enforcement of any legitimate expectation required: (i) reliance on representation; (ii) resultant detriment.^[68]

Doctrine of Public Accountability:

The basic purpose of Doctrine of Public Accountability is to check the growing misuse of power by the administration and to provide speedy relief to the victims of such exercise of power. The doctrine was first applied in A. G. of Hong Kong v. Reid,^[69] in which Lord Templeman observed that engaging in bribery is an evil practice which threatens the foundations of any civilized society and that any benefit obtained by a fiduciary through the breach of duty belongs in equity to the beneficiary is the basic norm subject to which all legal principles require to be interpreted. The concept of constructive trust and equity to enforce public accountability as laid down in Reid case^[70] was followed by the Supreme Court in A. G. of India v. Amritlal Prajivandas^[71] in which the validity of clause (c) of S. 3(1) of the SAFEMA was challenged. The Act provided for the forfeiture of properties earned by smuggling or other illegal activities whether standing in the name of the offender or in the name of other parties. The Court upheld the validity of the Act. In order to strengthen the public accountability further in State of Bihar v. Subhash Singh^[72] the Court held that the Head of Department is ultimately responsible and accountable unless there are special circumstances absolving him of the accountability. In Nilabati Behera v. State of Orissa^[73] the Court laid down that the concept of sovereign immunity is not applicable to the case of violation of right to life and personal liberty guaranteed by Art. 21 of the Constitution.

Doctrine of Proportionality:

Proportionality means that action should not be more drastic than it ought to be for obtaining the desired result. It covers some common ground with reasonableness. Proportionality can be described as a principle where the court is “concerned with the way in which the administrator has ordered his priorities; the very essence of decision-making consists, surely, in the attribution of relative importance to the factor in the case.”[74] The doctrine of proportionality used in fundamental rights’ context involves a balancing test and the necessity test. The ‘balancing test’ means scrutiny of excessive onerous penalties or infringements of rights or interests and a manifest imbalance of relevant considerations. The ‘necessity test’ means that the infringement of fundamental rights in question must be by the least restrictive alternative.

In India Fundamental Rights form a part of the Indian Constitution, therefore, courts have always used the doctrine of disproportionality in judging the reasonableness of a restriction on the exercise of fundamental rights. In Dwarkadas Marfatia v. Board of Trustee, Bombay Port[75] it was held that while deciding the proportionality of a punishment CCSU rules are to be followed.

Chapter-3

Judicial Review of Administrative Action: Modes

Public-Law Review

The power of public law review is exercised by the Supreme Court and High Courts through writs of certiorari, prohibition, mandamus, quo warranto, and habeas corpus.

Writ of Certiorari:

‘Certiorari’ is a Latin word, being the passive form of a word Certiorare meaning to “inform”. Certiorari may be defined as a judicial order operating in personam and made in the original legal proceedings, directed by the Supreme Court or High Court to any constitutional, statutory or non-statutory body or person, requiring the records of any action to be certified by the court and dealt with according to law.

Writ of Prohibition:

It is a judicial order issued by the Supreme Court or a High Courts to any constitutional, statutory or non-statutory agency to prevent these agencies from continuing their proceedings in excess or abuse of their jurisdiction or in violation of the principles of natural justice or in contravention of the law of the land.

Writ of Mandamus:

Mandamus is a judicial remedy issued in the form of an order from the Supreme Court or a High Court to any constitutional, statutory or a no n-statutory agency- to do or to forbear from doing under the law and which is in nature of a public duty or a statutory duty.

Writ of Quo Warranto:

It means “by what warrant or authority”. It is a judicial order issued by the Supreme Court or High Courts by which any person who occupies or usurps an independent public office or franchise or liberty, is asked to show by what right he claims it, so that the title to the office, franchise or liberty may be settled and any unauthorized person ousted.

Writ of Habeas Corpus:

It is a Latin term, which may be translated into English in some such form as “you must have the body”. Habeas corpus may be defined as a judicial order issued by the Supreme Court or a High Court by which a person who is confined by any public or private agency may secure his release. [76]

Private-Law Review

It refers to powers of ordinary courts of the land, exercised in accordance with ordinary law of the land to control administrative action.

Injunction:

The jurisdiction of Indian courts to issue injunctions is statutory. Sections 36 to 42 of the Specific Relief Act, 1963 govern the grant of injunctive relief. Injunction may be defined as an ordinary judicial process that operates in personam by which any person or authority is ordered to do or to refrain from doing a particular act which such person or authority is obliged to do or to refrain from doing under any law.

Declaration:

It may be defined as a judicial remedy which conclusively determines the rights and obligations of public and private persons and authorities without the addition of any coercive or directory decree.

Suit for Damages:

Whenever any person has been wronged by the action of an administrative authority, he can file a suit for damages against such authority.

Affirmative action for the enforcement of public duties:

In Ratlam Municipality v. Vardichand,[77] the Supreme Court categorically asserted that the heads of public bodies whether appointed or elected “will have to face the penalty of law if what the Constitution and follow-up legislation direct them to do are defied or denied wrongfully. The wages of violation are punishment, corporate or personal.

CONCLUSION:

Administrative discretion is a necessary evil of the present system of administration as in any intensive form of govt., the govt. cannot function without the exercise of some discretion by the officials. In other words, it has its own pros and cons. Actually, the problem of administrative action is very complex. It is correctly said that absolute power corrupts absolutely. It leads to arbitrariness in many situations. But Art. 14 which is one of the Fundamental Rights guaranteed to the Indian citizens and is also considered to be the beauty of the Indian Constitution acts as a major check to this arbitrariness arising due to administrative discretion. The court can very well bring the administrative actions under the purview of judicial review which forms a basic structure of the Indian Constitution and quash an administrative action under Art. 14. Thus, it can be concluded that Art. 14 plays an important role in checking arbitrariness in the administrative actions.

REFERENCE:

1. I. P. Massey, Administrative Law, VI edi., Eastern Book Co.Lucknow, p.n. 55

2. Sharp v. Wakefield, 1891 AC 173

3. Art. 14 of the Constitution of India, 1950

4. M. P. Jain.,Indian Constitutional Law,5th edi., Wadhwa Publications, Nagpur, p.n.856

5. Gauri Shankar v. UOI, AIR 1995 SC 55(Jain M. P.,Indian Constitutional Law,5th edi., Wadhwa Publications, Nagpur, p.n.857)

6. Jagannath Prasad v. State of Uttar Pradesh, AIR 1961 SC 1245

7. Indra Sawhney v. UOI, (2000) 1 SCC 168: AIR 2000 SC 498(Jain M. P.,Indian Constitutional Law,5th edi., Wadhwa Publications, Nagpur, p.n. 855)

8. Indra Sawhney v. UOI, (2000) 1 SCC 168: AIR 2000 SC 498 (Shukla V. N.,Constitution of India, 10th edi., Eastern Book Company, Lucknow. p.n. 38)

9. Chiranjit Lal Chowdhary v. UOI, AIR 1951 SC 498 (Shukla V. N.,Constitution of India, 10th edi., Eastern Book Company, Lucknow. p.n. 38)

10. Acc. to Oxford Dictionary means based on random choice or personal whim

11. AIR 1974 SC 877, 895

12. Prof. M. P. Jain, Indian Constitutional Law, V edi., Rep. 2006, Wadhwa & Co., Nagpur, p.n. 887

13. Delhi Transport Corp. v. DTC Mazdoor Congress, AIR 1991 SC 101

14. AIR 1974 SC 1325

15. See also, Express Newspapers Ltd. v. UOI, AIR 1986 SC 872

16. AIR 1984 SC 1361, 1367

17. M. C. Jain Kagzi, The Indian Administrative Law, VI edi., Universal Law Publishing Co. Pvt. Ltd. p.n. 227

18. Consumer Action Group v. State, (2000) 7 SCC 425

19. Dai-Ichi-Karkaria Ltd. v. UOI, (2000) 4 SCC 57

20. Durga Das Basu, Administrative Law, Kamal Law House, Kolkata, p.n. 309s

21. AIR 1974 SC 543

22. AIR 1981 SC 1829

23. M. P. Jain & S. N, Jain, Principles of Administrative Law, IV edition, Rep. 2003, Wadhwa & Company, Nagpur p.n. 366

24. AIR 1956 SC 676

25. AIR 1957 SC 648

26. AIR 1979 SC 1803

27. Gopikisan v. Assisstant Collector of Customs, AIR 1967 SC 1298

28. Pooran Mal v. Director of Inspection, (1974) 93 ITR 505

29. Digyadarshan R. R. Veru v. Andhra Pradesh, AIR 1970 SC 181

30. AIR 1975 SC 596

31. Biswambhar v. Orissa, AIR 1954 SC 597, also Bhairebandra v. Assam, AIR 1956 SC 503; Inder Singh v. Rajasthan, AIR 1975 SC 510

32. Niemla Mills Ltd. v. Second Punjab Tribunal, AIR 1957 SC 329

33. 1986 Supp SCC 254

34. I. P. Massey, Administrative Law, VI edi., Eastern Book Company

35. (1996) 4 SCC 60

36. In re Kerala Education Bill, AIR 1958 SC 956

37. Chitralekha v. Mysore, AIR 1958 SC 956

38. AIR 1967 SC 1836

39. S. P. Sathe, Administrative Law, VII edi., Lexis Nexis Butterworths, London, p.n. 389

40. Lila Dhar v. Rajasthan, AIR 1981 SC 1777

41. AIR 1957 SC 397

42. AIR 1980 SC 1461

43. AIR 1952 SC 75

44. AIR 1952 SC 123

45. AIR 1953 SC 404. Also Lachmandas v. Bombay, AIR 1952 SC 235

46. It was also argued that the law did not disclose any reasonable classification as to the offences mentioned. In upholding the provision, it was stated by the court that the type of offences mentioned in the Act were those which were widely prevalent during the war-time and hence, the policy was clear in the Act.

47. AIR 1953 SC at 409

48. Delhi Administration v. V. C. Shukla, AIR 1980 SC 1382, 1413-15

49. (1979) 1 SCC 380

50. Ibid, f.n.18, p.n.389

51. I. P. Massey, Administrative Law, 6th edi., Eastern Book Company, Lucknow, p.n. 238

52. Ibid, p.n. 245

53. State of Maharashtra v. Digambar, (1995) 5 SCC 730

54. State of U. P. v. Committee of Management of S. K. M. Inter College, 1995 Supp (2) SCC 535

55. Rajasthan Electricity Board v. Mohan Lal, AIR 1967 SC 1857; Sukhdev v. Bhagatram, (1975) 1 SCC 421: AIR 1975 SC 1331

56. R. D. Shetty v. International Airports Authority, (1979) 3 SCC 489: AIR 1979 SC 1628

57. (1990) 3 SCC 261

58. (1979) 3 SCC 489: AIR 1979 SC 1628

59. AIR 1967 SC 1857

60. I. P. Massey, Administrative Law, 6th edi., Eastern Book Company, Lucknow, p.n. 252

61. (1969) 1 All ER 904

62. (1988) 4 SCC 669: AIR 1989 SC 49

63. In this case, doctrine was invoked by the govt. to deny respondents to deny respondents a legal standing. However, the Court held that respondents not only locus standi but are also entitled to the benefit of the principles of natural justice.

64. Food Corporation of India v. Kamdhenu Cattle Feed Industries, AIR 1993 SC 1601

65. (1991) 2 SCC 477

66. See also State of H. P. v. Kailash Mahajan

67. (1993) 1 SCC 154

68. I. P. Massey, Administrative Law, 6th edi., Eastern Book Company, Lucknow, p.n. 306

69. (1993) 3 WLR 1143

70. Ibid

71. (1994) 5 SCC 54

72. (1997) 4 SCC 430

73. (1987) 1 SCC 395

74. UOI v. G. Ganayutham, (1997) 7 SCC 463, 473

75. AIR 1989 SC 1642

76. I. P. Massey, Administrative Law, 6th edi., Eastern Book Company, Lucknow, p.n. 345

77. (1980) 4 SCC 162

Received on 28.04.2014

Modified on 25.05.2014

Accepted on 03.06.2014