Key-words: Judicial Review, Executive Action, Constitution, Judiciary, Legislature

Transcription

1 JUDICIARY AND THE EXECUTIVE ACTIONS: JUDICIAL REVIEW IN COMPARITIVE PERSPECTIVES Vaishali Singh 1 In many countries, Constitution is considered as Supreme and the essence of Judicial Review lies therein. To simply put it, it is nothing but the power of the courts to scrutinize the validity of any legislative, executive and even judicial actions and struck it down if found to be unconstitutional. It is the influential and empowering tool in the hands of judiciary to hold any action unconstitutional or invalid, if it is found inconsistent with the law of the land. Judicial review is nothing but a tool or a means to hold those authorities or people accountable for the manner in which they exercise their power, especially when decisions are arbitrary and unjust. In order to analyse the justifiability of judicial review, the distinction between judicial review and judicial control needs to be done. The term judicial control denotes a broad concept and also includes within itself the concept of judicial review. It is often used as an expression is used in a narrow and limited manner and is supervisory in nature and not corrective1. In the Indian context the writ system under Article 32 and 226, denote the concept of judicial review. On the other side judicial control being a much broader concept encompasses all methods or procedures that a person can use for relief and redressal against the Administration. This can include appeal, injunction, writs, damages, declaration etc. Thus it can be said that judicial review is a basic principle of law as per which all governmental powers must be exercised within the legal boundaries and no exception is available even to administrative power. Key-words: Judicial Review, Executive Action, Constitution, Judiciary, Legislature 1 Research Associate, Gujarat National Law University 1 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW

2 The foundation of the theory of judicial review lies in Theory of Limited Government 2 and Supremacy of constitution 3 with the requirement that ordinary law must confirm to the Constitutional law 4. Judicial review is based on the concept of Rule of Law 5. The doctrine of separation of powers can only be implemented effectively if judicial review has been granted sanctity in the nation 6. DEFINITION Smith & Zurcher, have defined judicial review as The examination or review by the Courts, in cases actually before them, of legislative statutes and executive or administrative acts to determine whether or not they are prohibited by a written Constitution or are in excess of powers granted by it, and if so, to declare them void and of no effect. 7 Edward S. Corwin also says that Judicial Review is the power and duty of the courts to disallow all legislative or executive acts of either the central or the State governments, which in the Court s opinion transgresses the Constitution. 8 Another definition of judicial review is given as under: Judicial review is the power of the court to review statutes or administrative acts and determine their constitutionality. The examination of federal and state legislature statutes and the acts of their executive official by the Courts to determine their validity according to written constitutions. 9 2 Bylund, The theory of limited government - LewRockwell LewRockwell.com (LewRockwell.com Feb. 11,2005), 3 Ranbir Singh and Anupama Arya, NEHRU S STRATEGY OF NATIONAL INTEGRATION, (Indian Political Science Association 2006). 4 A COMPARATIVE STUDY OF JUDICIAL REVIEW IN INDIA, THE UNITED STATES AND THE UNITED KINGDOM 5 WILLIAM SIR WADE ET AL., ADMINISTRATIVE LAW (Oxford University Press, 8th ed. 2000), p. 20 Also see M.P.JAIN, INDIAN CONSTITUTIONAL LAW (LexisNexis, 7th ed. 2014), p.12 6 M.P. JAIN AND S.N. JAIN, PRINCIPLES OF ADMINISTRATIVE LAW 6TH EDITION, REPRINT (LexisNexis Butterworths Wadhwa Nagpur, 6th ed. 2010). 7 Smith, Edward Conard and Zurcher, Arnold Jhon, Dictionary of America Politics, Barnes and Noble, New York, 1959, p Corwin, Edward S., A Constitution of Powers in a Secular State, The Michie Company, USA, 1951, p Dictionary of Political Science, Joseph Dunner, 1965, p P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW

3 In his minority judgment while concurring with the above P.N. Bhagwati, J. in the case of Minerva Mills 10 observed it is for the judiciary to uphold the Constitutional values and to enforce the Constitutional limitations, that is the essence the Rule of law, which inter alia requires that the exercise of powers by the Government whether it be the legislative or the executive or any other authority be conditioned by the Constitution and the law. POSITION OF JUDICIAL REVIEW OF EXECUTIVE ACTION IN U.S. Heavily influenced from their colonist heritage the initial state constitutions adopted after the Declaration of Independence were organized around the concept of legislative supremacy. This doctrine finds its roots in the British theory of government. The doctrine stems from the Glorious Revolution of and the efforts therein to limit the power and authority of the crown. As a result of the culmination of the Revolution the Parliament was the supreme authority and the judges were largely limited to the ministerial task of ensuring that the procedures mandated by particular legislative acts have been properly followed. if the parliament enacts a thing to be done which is unreasonable, I know of no power that can control it: and the examples usually alleged in support of this sense of the rule do none of them prove, that where the main object of a statute is unreasonable the judges are at liberty to reject it; for that were to set the judicial powers above the legislative, which would be subversive of all government 12 Similarly, in the American context judiciary was considered as a subordinate department of the government 13, with the legislature branch having the chief task of protecting the rights of the people, and not the judiciary. But with time this unchecked power of legislature was questioned in America 14. Consequently, the main aim of the 1787 Constitutional Convention 10 Minerva Mills Ltd. v. Union of India & Ors, AIR 1789 SC BBC, History - British history in depth: The glorious revolution, BBC (Feb. 17, 2011), 12 William Blackstone et al., The Commentaries of Sir William Blackstone, Knight, on the Laws and Constitution of England 91(American Bar Association 2010). 13 Vermont Supreme Court and Daniel Chipman, Reports of Cases Argued and Determined in the Supreme Court of the State of Vermont: Prepared and Published in Pursuance of a Statute Law of the State 22 vol 2 (Nabu Press 2011) 14 The foundations of the same can be traced back to the Dr. Boham s Case and Sir Edward Coke s opinion in, Yale University Press the 1610 judgment 3 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW

4 was to better protect the rights of the citizens, something which the previous held theory of legislative supremacy was unable to do. In the words of James Madison, the necessity of providing more effectually for the security of private rights, and the steady dispensation of Justice. Interferences with these were evils which had more perhaps than anything else produced this convention...what led to the appointment of this Convention? The corruption and mutability of the Legislative Councils of the States. 15 The Virginia Plan 16 proposed by Madison called for a council of revision, consisting of the national executive and several federal judges, that would have authority to veto acts of the national legislature and thus would provide a check on the sweeping powers of the national legislatures, but this was eventually rejected. Even the supremacy clause proposed by the council of revision, as per which state courts were required to strike down law that violated the federal constitution, was not accepted and consequently the text of the Constitution that the framers agreed upon does not expressly provide for judicial review. But the debates and the Federal Papers make clear that the spirit of judicial review can be interpreted form the constitution. As James Wilson informed the Pennsylvania ratifying convention: If a law should be made inconsistent with those powers vested by this instrument in Congress, the judges, as a consequence of their independence, and the particular powers of government being defined, will declare such law to be null and void. For the power of the Constitution predominates. Anything therefore that shall be enacted by Congress contrary thereto will not have the force of law. 17 John Marshall, CJ who consequently penned the judgment in Marbury vs. Madison 18 observed: Has the government of the United States power to make laws on every subject?can they make laws affecting the mode of transferring property, or contracts, or claims between citizens of the same state? Can they go beyond the delegated power? If they were to make a law not warranted 15 Max Farrand, the Records of the Federal Convention of 1787, Yale University Press 1911 volume 3 page Craig Walenta, The Virginia Plan - the U.S. Constitution online (1995), Available at 17 Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution, as Recommended by the General Convention at Philadelphia, in 1787: Together with the Journal of the Federal Convention, Luther Martin s Letter, Yates's Minutes, Cong 489(Cornell University Library, 2d ed. 2009). 18 Marbury vs. Madison 5 U.S. 137 (1803) 4 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW

5 by any of the powers enumerated it would be considered by the judges as an infringement of the Constitution which they are to guard. They would consider such a law as coming under their jurisdiction. They would declare it void. 19 Thus the historical evidence in America was always in favour of judicial review even though the same is not expressly provided in the Constitution. The first recorded statement of judicial review was made by James Otis, the plaintiff, before the Massachusetts Superior Court in 1761 in the case of Paxotn v. Gray, his argument relied on the Justice Coke s opinion in Dr. Bonham s Case, As to acts of Parliament. An act against the Constitution is void; an act against natural equity is void; and if the act of Parliament should be made, in the very words of the Petition would be void. The executive Courts must pass such acts as disuse 20 But unfortunately his arguments and similar arguments in cases like Robin vs Hardaway30 and Rutgers v. Wadington. 21. In Commonwealth v. Caton if the first reported case in the United States in which court openly exercised judicial review, but the decision was by a state court and furthermore it never expressly endorsed the doctrine of judicial review. At issue was the constitutionality of a 1776 Virginia statue that moved the pardon power from the executive to the legislature. In Hylton v. United States 22, was the first case decided by the Supreme Court that involved a challenge to the constitutionality of an act of Congress. It was argued that a federal tax on carriages violated the constitutional provision regarding "direct" taxes. The Supreme Court upheld the tax, finding it was constitutional. Although the Supreme Court did not strike down the act in question, the Court engaged in the process of judicial review by considering the constitutionality of the tax. The case was widely publicized at the time, and observers understood that the Court was testing the constitutionality of an act of Congress. Because it found the statute valid, the Court did not have to assert that it had the power to declare a statute unconstitutional. It was finally in 1803 that the American Supreme Court defined the boundaries of the judiciary and the executive branches of the government in US. The judgement made it clear that the 19 Supra Note Christopher, English law - Dr. Bonham s case (2016), BONHAM-S-CASE.html 21 1 Jeff. 109 (Va. Gen. Ct. 1772) 22 Hylton v. United States 3 U.S. (3 Dall.) 171 (1796) 5 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW

6 Supreme Court would be the final authority and will decide the constitutionality of the actions of the Executive i.e. the President and the Legislature i.e. the Congress. The Supreme Court declared Constitution to be the supreme law of the land and any law in violation of it will be struck down. Marbury was the first case in which the Supreme Court of United State of America struck down (en bonc) an act of Congress as unconstitutional, ironically the judgement curtailed the jurisdiction of the Court itself. Marshall J. famously observed: It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each 23 Thus issue of which organ of the state has the power to decide constitutionality of an act- Thomas Jefferson, the sitting President, wanted the each governmental branch to decide the constitutionality of its action - was finally vested in the judiciary by the Judge Marshall and the case marked the point in history when the Courts assumed a monitoring role over governmental actions 24. McCulloch v. Maryland 25 saw the expansion of this doctrine and a marked increase in courts power of judicial review and its ability to propose new laws 26.But the unpopularity and political opposition resulted in a fifty year gap in the actual application of the principle by the US Supreme Court in Dred Scott vs. Standford 27 the Court struck down a federal statue as unconstitutional and it was only in 1958 that the principle was openly endorsed by the Supreme Court in Cooper vs. Aron 28, wherein the Court declared it to be a permanent and indispensable feature of the constitutional system of the country. The development and current position of judicial review in US can be understood from the Supreme Court judgement in the recent case of Reed v. Town of Gilbert, Arizona 29. In this case an ordinance was passed concerned with Gilbert town which prohibits the display of outdoor sign except some signs which are political signs which defined as designed to influence the 23 5 U.S. 137 (1803) 24 Laura Langer, Judicial Review in State Supreme Courts: A Comparative Study (Albany: State University of New York Press, 2002), p McCulloch v. Maryland 4 Wheaton 316(1819) 26 Prashant Gupta, INTERNATIONAL JOURNAL OF LEGAL DEVELOPMENTS AND ALLIED ISSUES (2016). Available at : 27 Dred Scott vs Standford 60 US 393 (1857) 28 Cooper vs Aron 358 U.S. 1 (1958) 29 US Reports Slip Opinion Volume (2014). 6 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW

7 outcome of an election, and ideological signs which defined as communicating ideas and another one directional signs which defined as directing the public to church or other qualifying event. This ordinance was challenged by a church and its priest. Justice Clarence Thomas on behalf of the majority held that distinctions drawn by the ordinance were impermissible. It was held that all content based law requires the exacting form of judicial review and strict scrutiny. Court further held that content-based laws which are target speech based on its communicative content are presuming to be unconstitutional and may be justified only if the Govt. proves that they are narrowly tailored to serve compelling State interests. In USA the system of judicial review can be understood in two context - judicial review of legislative action (Congressional acts and State Legislatures) and judicial review of administrative action. Concept such as Separation of Powers, federalism and constitutional authority etc. form part of judicial review of legislative action whereas judicial review of administrative action as the name suggests deals with the actions of the administrative agency i.e. whether it acted legally or not 30 ( within the boundaries provided by the enabling statue), further all types of administrative action are subjects to judicial review irrespective of nature of such actions (i.e. formal or informal adjudication, government policy implementation or rule making). In the American context the administrative process and its review by the judicial authority is largely codified in the Federal Administrative Procedure Act. The APA lays down the method for rulemaking by an administrative agency along with minimum procedural requirement for any administrative action. It further provides the scope and standard for judicial review over such administrative action 31. The role of administration agencies has expanded post nineteenth century far beyond the imagination of the original drafters of the American Constitution. The need for a specialized agency which could handle the technical issues involved with various industries gave rise to the concept of delegated legislation, as legislative was unable to handle the same. Further as legislative was unable to handle the same. Further many a time decision are required to be made which are subject to time constraints making it impractical to wait for the legislature to regulate. Hence the specific administrative authority has been given powers to regulate the same. 30 Mario Shapiro, The Giving Reasons Requirement, (University of Chicago Legal Fraternity) 31 Section 10 of APA, Article P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW

8 The same was accepted by the Supreme Court in Chevron vs United States wherein the Court held that an agency has the unquestioned authority to promulgate its own rules and to interpret the meaning of the enabling statute itself. But these powers are subject to the minimal standards applied by the Court to ensure transparency and accountability. The judiciary thus has adopted a monitory (and not supervisory) role to review legality of administrative action. 32 Furthermore the giving reasons threshold while reviewing administrative agency is one of the basic methods of ensuring accountability of non-elected government officials. Along with the various judgments the APA is the (statutory) source of judicial review of administrative action. A reviewing court has the power to decide all relevant questions of law 33, to interpret constitutional and statutory provisions, and to determine the meaning or applicability of the terms of an agency action 34.The Court may set aside any order if found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; contrary to constitutional right, power, privilege, or immunity; in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; without observance of procedure required by law; unsupported by substantial evidence on the record of an agency hearing provided by statute; or Unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. The judiciary has the authority to declare any administrative action as invalid on the above mentioned grounds or even for violating the APA itself. 35 The giving reason requirement and its significance was explained by the Chief Judge Bazelon in the 1971 case of Environmental Defence Fund, Inc. v. Ruckelshaus 36 Courts occasionally asserted, but less often exercised, the power to set aside agency action on the ground that an impermissible factor had entered into the decision, or a crucial factor had not been considered. Gradually, however, that power has come 32 Administrative Procedure Act, Pt. I, Ch. 7, 5 U.S.C. 706 (Scope of Review). 33 Ibid 34 Ibid 35 Ibid F.2d 584, 597 (D.C. Cir. 1971) 8 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW

9 into more frequent use, and with it, the requirement that administration articulate the factors on which they base their decisions. This action of the Court i.e. when the court reviews an agency s interpretation of statue committed to its administration the test was developed by Supreme Court in Chevron 37 If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious or manifestly contrary to the statute. Sometimes the legislative delegation to the agency is implicit rather than explicit. In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency. Chevron decision makes it clear that the Courts will not interfere with express and unambiguous intent of Congress and the application of the same by the administrative agency. The province of judicial review will only be extended and the agency s reasonableness and interpretation of administrative agency will only be questioned if the statue is silent or ambiguous. The judiciary through judicial review of administrative action aims to protect general public from abuse of power by administrative authorities and all kinds of unreasonable state action. In Ethyl Corp v. Environmental Protection Agency 38 expounded on the role need for judicial review and judiciary role as We do not weigh the evidence introduced before the Commission; we do not inquire into the wisdom of the regulations that the Commission promulgates, and we inquire into the soundness of the reasoning by which the Commission reaches its conclusions only to ascertain that the latter are rationally supported. 39 The same was concurred in various subsequent judicial pronouncements 40.Thus under the American jurisprudence both procedural and substantive safeguards are present for judicial review and actions of administrative agency which are required to not only be reasonable 41 but also to have followed due process of law- 37 Chevron USA Inc v NRDC 467 US 837 (1984) F2d at Ibid 40 Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415 (1971); SCM Corp., 487 F.Supp. at 232; Ethyl Corp., 541 F.2d at Industrial Union Dept., AFL-CIO, v. American Petroleum Institute, 448 U.S. 607, 670 (1980) 9 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW

10 ''No rational system of regulation can permit its administrators to make policy judgments without explaining how their decisions effectuate the purposes of the governing law, and nothing in the statute authorizes such laxity in these cases." POSITION OF JUDICIAL REVIEW OF EXECUTIVE ACTION IN INDIA Indian Constitution has wonderfully adopted the via media between the American system of judicial supremacy and the English principles of parliamentary supremacy. 42 In the Indian legal system, constitution is considered to be supreme and judicial review forms the cardinal principles of Indian Constitutional system. India in common with other democratic countries of the world, the Courts have been given the pride of place and they do enjoy a good deal of power to control and review administrative action. 43 Evolution of Judicial Review in India Patanjali Shastri, erstwhile Chief justice of India stated while the court naturally attaches a great weight to the legislative judgment it cannot desert its own duty to determine finally constitutionality of an impugned statute. 44 The first case in India related to judicial review was Emperor v. Burah. 45 The Calcutta High Court as well as Privy Council adopted the view that the Indian courts had power of Judicial Review under certain limitations. This view was reiterated in certain case before the coming into operation of Government of India Act, With the introduction of Federation, Judicial review assumed a great impetus in Indian democracy by By 1885, the Indian National Congress has grounded its roots and rigorous agitations were made for the recognition of fundamental rights by the State. Consequently, the provisions were made for incorporation of the concept of judicial review in the constitution itself See Basu, D.D., Commentary on the Constitution of India, Calcutta, 1955, p See M.P. Jain, JUSTICE BHAGWATI AND INDIAN ADMINISTRATIVE LAW, (1980) Ban, LJ 1 44 The State of Madras v. V.G. Row, AIR 1952, SC 196, para Emperor v. Burah, ILR, Calcutta, 63 (1877). 46 Jha, Chakradhar, op.cit., p P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW

11 LANDMARK JUDICIAL PRONOUNCEMENTS The influence of British ideology of parliamentary supremacy made the Hon ble Supreme Court of India hesitant in recognizing the concept of judicial review. It is evident from the decision in the case of A.K. Gopalan 47 where the Hon ble Supreme Court has given a restrictive definition of procedure established by law under Article 21 and showed judicial restraint towards the exercise of power of judicial review. However, in subsequent years, nation witnessed the tussle between the two organs of the Government on the power of amendment of the Constitution. 48 This was finally set at rest by the celebrated case of Keshavnanda Bharti v. State of Kerala 49 wherein the power of judicial review in certain cases was held to be the basic feature of the Constitution and hence cannot be amended. The scenario changed completely after the imposition of emergency in the country wherein series of judgments were perceived to be violative of the basic human rights of Indian citizens 50 and changed the way it looked at the constitution. The Supreme Court said that any legislation is amenable to judicial review, be it momentous amendments 51 to the Constitution or any scheme which affects the freedom of the citizen. The Constitutional bench in Indira Gandhi s case 52 held that Judicial Review in election disputes was not a compulsion as it is not a part of basic structure. P.N. Bhagwati, C.J in S.P. Sampath Kumar 53 relying on Minerva Mills Ltd. 54 declared that it was well settled that judicial review was a basic and essential feature of the Constitution. 47 A.K. Gopalan vs. The State Of Madras AIR 27, 1950 SCR I.C. Golaknath v. State of Punjab, (1967) 2 SCR 762; Sankari Prasad Singh Deo v. Union of India, 1952 SCR 89 Sajjan Singh v. State of Rajasthan,(1965) 1 SCR Keshavnanda Bharti v. State of Kerala AIR 1973 SC ADM v. Shivakant Shukla, (1976) 2 SCC Shankari Prasad Singh Deo v. Union of India, AIR 1951 SC 458; Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845; Golak Nath v. State of Punjab, AIR 1967 SC 1643; Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225; Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625; Sanjeev Coke Mfg. Co. v. Bharat Coking Coal Ltd., (1983) 1 SCC 147; 52 Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC S.P. Sampath Kumar v. Union of India (1987) 1 SCC 124 at Maneka Gandhi v. Union of India1978 AIR 597, 1978 SCR (2) P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW

12 If the power of judicial review was absolutely taken away, the Constitution would cease to be what it was. In Maneka Gandhi s case 55, the scope of judicial review and brought in the due process clause through interpretation of Article 21. Furthermore, it was held that Article 14, Article 21 and Article 19 are too interpreted together. Thus scope of judicial review was broadened in India through Judicial Activism. JUDICIAL REVIEW OF EXECUTIVE ACTION The courts are empowered to check the validity of any legislative, executive and even judicial actions within the four corners of the term judicial review. However, this project focusses on the judicial review of executive action only which includes administrative action of the Union of India as well as the State Governments and authorities falling within the meaning of State. The origin of judicial review of administrative action in India comes from Britain. It is undoubtedly the most important development in the field of public law. Judicial review of administrative action was described by Professor De Smith as inevitably sporadic and peripheral 56. The Doctrine of Judicial Review is embodied in the Constitution 57 and the subject can approach High Court 58 and Supreme Court 59 for the enforcement of fundamental right guaranteed under the Constitution. GROUNDS OF JUDICIAL REVIEW OF ADMINISTRATIVE ACTION In India, the court will interfere with the discretionary powers exercised by the administration in the basically on two grounds: i.e. failure to exercise discretion and excess or abuse of discretion. The judicial review of administrative action can be exercised on the following grounds SA De Smith, Judicial Review of Administrative Action, p 1 (4th edn, 1980). 56 SA De Smith, Judicial Review of Administrative Action, p 1 (4th edn, 1980). 57 Articles 13,32, ,143,226,227,245,246.,372 of the Constitution of India 58 Article 226 and 227 of the Constitution of India 59 Article 32 of the Constitution of India 60 These grounds of judicial review were developed by Lord Diplock in Council of Civil Service Union v. Minster of Civil Service (1985) AC P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW

13 a) Jurisdictional Error If any administrative authority has exceeded its jurisdiction or has exercised any power without jurisdiction then it is known as jurisdictional error which is a valid ground for judicial review. Attention is sought to the decision of R. vs. Minister of Transport 61, wherein a Minister had revoked a license without any authority being conferred upon him. The order was thus without jurisdiction and hence ultra vires. b) Irrationality The administrative authorities should exercise the discretion conferred upon by the Constitution reasonably and not in an arbitrary or irrational fashion. Thus the discretionary order is liable to be struck down. If the decision is shown to be patently arbitrary, discriminatory or mala fide 62 If it is found to be unreasonable or violates any provision of the Constitution or any other Statute 63 If it can be said to suffer from any legal infirmity in the sense of its being wholly beyond the scope of the regulation-making power 64 If it is demonstrably capricious or arbitrary & not informed by any reason 65. c) Procedural impropriety The procedural impropriety might be related to procedure which is provided in the statute or non-compliance with the principles of natural justice. Ridge v Baldwin 66 represents landmark case which suggests that irrespective any administrative body determining a question, judicial insistence always lies on procedural fairness. d) Proportionality This can be explained as taking a sledgehammer to crack a nut. Proportionality goes hand in hand with reasonableness and courts while exercising power of review sees it as a course of 61 R. vs. Minister of Transport (1934) 1 KB A.P.B.C. Sangh vs. J.S.V. Fed., (2006) 6 SCC K.C. Sharma v. Raj, AIR 2002 SC State of H.P. vs. Padma Dev, AIR 2002 SC Ibid 66 Ridge v Baldwin [1964] AC P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW

14 action that could have been reasonably followed. In Management K. Tea Estates vs. Mazdoor Sangh 67, the workmen of the tea estates, alleged to have entered the estate armed with deadly weapons with a view to gherao the Manager & others in regard to their demand for bonus, caused damage to property of the estate & wrongfully confined the Manager & others. Punishment of dismissal of concerned workmen de hors the allegation of allegation of extortion was held to be not disproportionate to the misconduct proved against them. e) Legitimate Expectation This doctrine is based on the belief that the aggrieved party has a legitimate expectation to receive a benefit relying upon guidelines or policies framed by executive actions. In Jatinder Kumar vs. State of Haryana 68, the Court held as under: The Government had a right to review the decisions taken by the previous establishments & hence it could suspend the process of recruitment started by previous Government, because of allegations of irregularities & this could not be challenged on the ground of violation of legitimate expectation. COMPARATIVE ANALYSIS As rightly said by Justice Charles Evans Hughes86, indeed Constitution is what the judges interpret for the state and Judicial Review thus becomes an important tool in a democracy to help the Judiciary to carry out its functions in accordance with the Constitution. Judicial review means the overseeing by the Judiciary of the exercise of power by other co-ordinate organs of the government with a view to ensuring that they remain confined to the limits drawn upon their powers by the Constitution. Though broadly defined as above, Judicial Review is a term which is used in different meanings in different countries. In some countries it is used as the power of the courts to check the constitutionality of any enacted law and in some countries it only checks the Administrative actions i.e. countries have generally opted for either the model of supremacy of parliament or the model of separation of powers. 67 Management K. Tea Estates vs. Mazdoor Sangh AIR 2004 SC Jatinder Kumar vs. State of Haryana (2008) 2 SCC P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW

15 In both India and USA the Constitutional model is based on the system of checks and balances and on the doctrine of separation of powers but there exists marked differences in the exercise of judicial review by judicial branch of each country despite being based on the similar constitutional principle. The difference can be perhaps attributed to the experiences of each country while India was heavily influenced and accepting of the ideas imposed by its colonist s masters, the Americans model was sceptic of everything British. The American concept of judicial review has been instrument interpreted by the judiciary from the vague words of the constitution 69 and then stated as facts 70 whereas the concept was incorporated expressly through various provisions of the constitution in India. 71 The most fundamental difference between the two is the method of judicial review s application by the Supreme Court. While in US, judicial review is majorly limited to review of Congressional and State Acts and abuse of power by administrative authorities, the Indian Courts have included within their purview the three branches of government i.e. legislative, executive and judiciary and furthermore subsequent to inception of the basic structure doctrine, the scope of judicial review has been extended to constitutional amendments whereas the US Supreme Court has always refrained from questioning the validity of the same. Furthermore, the bare reading of both nations lends to the fact that while India model of judicial review was envisaged to be a limited power the American judiciary was given more leeway to adjudicate through the due process clause. The Supreme Court had power to determine the constitutionality of any legislative or administrative action on both substantive and procedural grounds. Whereas the term procedure established by law under Article 21 sought to limit judicial review by Courts (Supreme Court & High Court) to procedural grounds only. Further the limitation also implicitly succeeded in disallowing the Indian judiciary from making judge made law (as the judges were only allowed to review the procedure they couldn t encroach on powers of other organs by reviewing the substantive part of the Act) unlike the US Supreme Court where the court successfully introduced new laws for example, the immunity clause introduced in Mculloh v Maryland. 69 Article III and VI of US Constitution 70 Marbury vs. Madison 5 U.S. 137 (1803) 71 Articles 13,32, ,143,226,227,245,246.,372 of the Constitution of India 15 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW

16 But this limitation of Indian judiciary has been removed by way of liberal interpretation of the Constitution and the incorporation of due process clause therein. Judicial activism in India (after the experience of the emergency) has shifted the Indian model from its previous British leanings of Parliamentary supremacy to the current system of Constitutional supremacy with the Supreme Court as its arbiter and consequently the judiciary has evolved several doctrines for the augmentation of the same such as doctrine of eclipse, severability etc.; while the same are implicit in the US model. With regards to judicial review of administrative action the scope of review in each country is very different. While in India the Supreme Court (and High Court) has complete power declare any law with its considers arbitrary as unconstitutional, in US such reviewing powers are subject to APA to a very large extent. The Act provides the manner and extent to which judicial review of actions of any administrative agency is allowed and thus limits judicial review powers of the US Supreme Court. The Act also highlights another difference in the judicial review mechanism in the two countries, while the Indian judiciary has sought to limit 25 several doctrines for the augmentation of the same such as doctrine of eclipse, severability etc; while the same are implicit in the US model. With regards to judicial review of administrative action the scope of review in each country is very different. While in India the Supreme Court (and High Court) has complete power declare any law with its considers arbitrary as unconstitutional, in US such reviewing powers are subject to APA to a very large extent. The Act provides the manner and extent to which judicial review of actions of any administrative agency is allowed and thus limits judicial review powers of the US Supreme Court. The Act also highlights another difference in the judicial review mechanism in the two countries, while the Indian judiciary has sought to limit its scope with respect to judicial review of administrative action94 the limits on US judiciary have been imposed through a legislative Act (which was not considered invalid by the US Supreme Court). The scope of judicial review in India is also wide with respect to locus standi of the applicant i.e. individuals can approach the judiciary not only in matters of abuse of administrative power but also for violation of legitimate expectations ; introductions of PILs and lex standards of locus standi have further widened its scope. Whereas in US the locus standi of person who can challenge an administrative action is limited by the APA and the US 16 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW

17 Supreme Court s own reluctance to hear such cases in US the Supreme Court has to accept the writ of certiorari before a case can be heard. CONCLUSION Just like US Supreme Court, the Supreme Court of India enjoys the power of judicial review and this power has been specifically recognized by the constitution. Judicial review is a fundamental and indispensable principle of democracy; judicial review makes an administrative agency accountable to the general public but requiring transparency and reasonableness in its actions. In US this is achieved majorly through the APA, which provides a statutory scheme of administrative law and its judicial review general principles achieved through general principles derived from various judicial pronouncements. 72 In Indian Supreme Court judicial interpretation has expanded the scope of the procedural requirement procedural established by law enshrined in Article 21 and has successfully developed substantive as well as procedural standards of judicial review. 73 Thus despite a restrictive system of judicial review envisaged by Constitutional Assembly 74 the Supreme Court of India has been successful in expanding its jurisdiction and better to protect the rights of citizens in face of ever increasing powers of the administrative agency. While the US legal system seeks to achieve this aim by imposing on the administration a duty to give reasons for its action whereas the Indian legal system requires such action to be reasonable, non-arbitrary, bonafide, legal and constitutional. 72 SP Sampath Kumar vs Union of India; Jatinder Kumar ve State of Haryana; Maneka Gandhi vs Union of India 73 Deepak Srivastava, Mechanism of judicial review of administrative actions in India: A critical Analysis mechanism of judicial review of administrative actions in india: a critical analysis prohibition(2016), Critical_AnalysisMECHANISM_OF_JUDICIAL_REVIEW_OF_ADMINISTRATIVE_ACTIONS_IN_INDIA_ A_CRITICAL_ANALYSISProhibition. 74 Tigist Assefa and Mandefro Eshte, Judicial Review of Administrative Actions: A Comparative Analysis I Judicial Review of Administrative Actions: A Comparative Analysis SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENT FOR THE MASTERS OF LAW (LLM) FOR THE FACULTY OF LAW AT ADDIS ABABA UN (2010). 17 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW

18 Despite the different approaches of both legal systems the underlining principles remain the same and bot seek to protect rights of individuals and protect constitutional values from abuse of governmental power by various administrative agencies and provide effective system of checks and balances. 18 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW