Judicial control over administration

The control exercised by the Courts over the administration is called judicial control, that is,
to the power of the court to keep the administrative acts within the limits of law. It also
implies the right of an aggrieved citizen to challenge the wrongful act of administration in the
court of law. The primary purpose of judicial control over administration is the protection of
the rights and liberty of citizens by ensuring the legality of administrative acts. L D white has
aptly pointed out that, “the purpose of legislative supervision is principally to control the
policy and expenditure of the executive branch, the end sought by judicial control of
administrative acts is to ensure their legality and thus, protect citizen against unlawful
trespass on their constitutional and other rights. Lord Bryce has said that there is no better test
of the excellence of a government than the efficiency and independence of its judicial system.

In India, the judiciary occupies an important place. The constitution visualizes an

independent judiciary to safeguard the rights of citizens. In a democratic polity, the
independent judiciary is a sine qua non to the effective functioning of the system.
Administration has to function according to the law and the Constitution. The judiciary has
an important role to play in protecting the citizen against the arbitrary exercise of power by
administration.

Basis of Judicial Control: Rule of Law

The term ‘rule of law’ is originated from England and India has taken this concept. The
concept of rule of law further requires that no person should be subjected to harsh or arbitrary
treatment. The word ‘law’ in rule of law means that whether he is a man or a society, he must
not be governed by a man or ruler but by law. In other words, as per Article 13 of the Indian
Constitution rule of law means law of land. In 1885, Professor A.V Dicey developed this
concept and propounded three principles or postulates of the rule of law in his classic book,
Introduction to the Study of the Law of the Constitution.

1. Absence of Arbitrary Power: No man is punishable or can be lawfully made to suffer

in body or in goods except for a distinct breach of law established in the ordinary
legal manner before the ordinary courts of the land. Dicey went on and stated that no
one should have too wide and arbitrary or discretionary powers.

2. Equality before law: According to the second principle of Dicey, equality before law
and equal subjection of all classes to the ordinary law of land to be administered by
the ordinary law courts and this principle emphasizes everyone which included
government as well irrespective of their position or rank. But such element is going
through the phase of criticisms and is misguided. As stated by Dicey, there must be
equality before law or equal subjection of all classes to the ordinary law of land. He
also criticized French legal system of Droit Administration as there were separate
tribunals for deciding the cases of state officials and citizens.

3. Predominance of Legal Spirit: According to the third principle of Dicey, It is

generally presumed that the written constitution is the source of legal liberties of
citizens. However, it is not true as Britain has an “unwritten Constitution.” Legal
spirit is the real source of law in England. The legal spirit is seen in its customs,
conventions and judicial decisions. Dicey opines that the individual rights and
liberties are more safely protected in Britain than France. Rule of law as established
by Dicey requires that every action of the administration must have legal backing and
done in accordance with law.

Grounds of Judicial Intervention

In order to develop Indian democracy, rule of law has played a great role. At the time of
framing of Constitution, the framers had two options i.e. USA and England. Some of the
provisions were adopted from USA and some of them were adopted from England. Our
constitutional fathers have adopted rule of law from England and many provisions were
incorporated in the Indian Constitution. Indian Constitution is considered to be supreme and
no one is above Indian Constitution. Rule of law is also given impliedly in the preamble and
such concept is enshrined in Part III of the Indian Constitution. Generally judicial
intervention in administrative activities is confined to the following cases:

(a) Lack of Jurisdiction: If any public official or administrative agency acts without or
beyond his/her or its authority or jurisdiction the courts can declare such acts as ultra
vires. For instance, according to administrative rules and procedures, in all
organizations, the competent authority is identified for taking decisions and actions. If
any authority or person other than the competent authority takes action, the court's
intervention can be sought under the provisions of lack of jurisdiction.
(b) Error of Law: This category of cases arises when the official misconstrues the law
and imposes upon the citizen obligations, which are absent in law. This is called
misfeasance in legal terminology. The courts are empowered to set right such cases.
(c) Error of Fact: this category of cases is a result of error in discovering cases and
actions taken on basis of wrong assumptions. Any citizen adversely affected by error
of judgment of public official can approach courts for redressal.
(d) Error of Procedure: "due procedure" is the basis of governmental action in a
democracy. Responsible government means a government by procedure. Procedure in
administration ensures accountability, openness and justice. Public officials must act
in accordance with the procedure laid down by law in the performance of the
administrative activities. If the prescribed procedure is not followed the intervention
of the courts can be sought and legality of administrative actions can be questioned.
(e) Abuse of authority: if a public official exercises his/her authority vindictively to harm
a person or use authority for personal gain, court's intervention can be sought. In legal
terms, it is called malfeasance. The courts can intervene to correct the malfeasance of
administrative acts.

Means of Judicial Control Over Administration

The forms and methods of judicial control over administration vary from country to country,
depending upon the type of the constitution and the system of law. Broadly speaking, there
are two systems of legal remedies against administrative encroachments on the rights of
citizens. One is called the Rule of Law system and the other is called the Administrative Law
system. The Rule of Law means that everybody, irrespective of social and cultural
differences, whether an official or a private citizen is subject to the same law and the ordinary
law of the land. The official cannot take shelter behind state sovereignty in committing
mistakes in his official capacity. A.V. Dicey, the main exponent d Law system stated that the
Rule of Law assumes equality of Rule of all before law and application of the same law to all.
The rule of law system prevails in England and other Commonwealth countries including
India. It is also prevalent in the USA and many other democratic counties. The administrative
law system is based on the assumption of separate law and courts for dealing with
administrative actions. This system prevails mainly in France. In the following paragraphs,
we shall discuss some of the forms of judicial control over administration in India, under the
Rule of Law system.

 Judicial Review: The judicial review implies the power of the courts to examine the
legality and constitutionality of administrative acts of officials and also the executive
orders and the legislative enactments. This is very important method of judicial
control. This doctrine prevails in countries where Constitution is held supreme, for
example, in U.S.A. India, Australia, etc.

 Statutory Appeal: The statutes made by Parliament and State Assemblies itself
provide that in a particular type of administrative action, the aggrieved party will have
a right of appeal to the courts Judicial Administration or to a higher administrative
tribunal. Sometimes, legislative enactment itself may provide for judicial intervention
in certain matters.

 Suits against the Government: There are several limitations, varying from country
to country, as regards filing suits against the government for its contractual liability.
The contractual liability of the Union and the State Governments is the same as that of
an individual citizen under the ordinary law of contracts, subject however, to any
statutory conditions of limits, which the Parliament can regulate under the
constitution. The State is liable for the tortuous acts of its officials in respect of the
non-sovereign functions only. In Britain, under the Crown Proceedings Act of 1947,
the State is liable for torts (wrongs) committed by its servants i.e., public officials,
subject to some exceptions.

 Criminal and Civil Suits against Public Officials;The position regarding the public
officials' personal liability in respect of acts done by them in their official capacity
varies form country to country. In India, civil proceedings can be instituted against a
public official for anything done in his official capacity after giving two months
notice. When criminal proceedings are to be instituted against an official for the acts
done in his official capacity, previous sanctions of the Head of the State i.e., the
President or the Governor is required. Some functionaries like the President and the
Governor are immune from legal proceedings even in respect of their personal act.
Ministers, however, do not enjoy such immunity. The Monarch in Britain and
President in the U.S.A. are also immune from legal liability.

 Extraordinary Remedies: Apart from the methods of judicial control already

discussed, there are the extraordinary remedies in the nature of writs of Habeas
Corpus, Mandamus., Prohibition, Certiorari and Quo-Warranto. These are called
extraordinary remedies because the courts grant these writs except the writ of Habeas
Corpus, in their discretion and as a matter of right and that too when no other
adequate remedy is available. A writ is an order of the court enforcing compliance on
the part of those against whom the writ is issued. In India, these writs are available
under the provisions of the Constitution. While the Supreme Court is empowered to
issue these writs or orders or directives only for the enforcement of Fundamental
Rights, the High Courts are empowered to issue these writs not only for the
enforcement of Fundamental Rights but also for other rights. in Britain, these are
called Prerogative Writs issued in the name of the King as ‘the fountain of justice’. In
the U.S.A. these are provided for partly by common law and partly by statute. The
writ of injunction is not specifically provided in the Constitution. However, it is
issued by the Indian courts. We will discuss these writs now:

a) Habeas Corpus: Habeas Corpus literally means to have the body of. This writ
is an order issued by the court against a person who has detained another to
produce the latter before the court and submit to its orders. If it is found that
the person in unlawfully or illegally detained, he will be set free. A friend or a
relation of the detained person may also apply for this writ on his/her behalf.
This writ is a great bulwark of individual freedom and can be described as the
cornerstone of personal liberty. This writ is granted as a matter of a right of
prima-facie, if it is established that the person is unlawfully detained. Its utility
is, however restricted in India in view of the provision of Preventive Detention
Act.

b) Mandamus: Mandamus literally means command. If a public official fails to

perform an act which is a part of his public duty and thereby violates the right
of an individual, he /she will be commanded to perform the act through this
writ. From the standpoint of judicial control over administrative lapses, it is an
effective writ. In India, this can also be issued to compel a court or judicial
tribunal to exercise its jurisdiction.

c) Prohibition: It is a judicial writ issued by a superior court to an inferior court,

preventing it from usurping jurisdiction, which is not vested with it. While
Mandamus commands activity, Prohibition commands inactivity. This writ
can be issued only against judicial or quasi-judicial authorities to prevent
exercise of excess of jurisdiction by a subordinate court. As such its
significance as a method of judicial control over administration is limited.

d) Certiorari: While Prohibition is preventive, Certiorari is both preventive and

curative. It is a writ issued by a superior court for transferring the records of
proceedings of a case from an inferior court or quasi-judicial authority to the
superior court for determining the legality of the proceedings.

e) Quo-Warranto: Literally, Quo-Warranto means 'on what authority'. When any

person acts in a ‘public office’ in which he/she is not entitled to act, the court
by the issue of this writ, will enquire into the legality of the claim of the
person to that office. If the said claim is not well founded, he/she will be
ousted from that office. It is, thus, a powerful instrument against the
usurpation of ‘public offices’.

Besides these, there is one more writ, namely the writ of Injunction. It is of two kinds,
mandatory and preventive. Mandatory injunction resembles the writ of Mandamus while
Preventive Injunction resembles the writ of Prohibition. Through this writ, a public official
can be restrained from doing a thing which, if done would cause irreparable damage to the
rights of individuals. While Prohibition is a writ available against judicial authorities,
Injunction is a writ, which is issued against executive officials.