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JUDICIAL REVIEW

DEEPA MANICKAM
INTRODUCTION
The system of judicial review of
administrative actions has been inherent
from Britain.
It is on this foundation that the Indian courts
have built the superstructure of control
mechanism.
However, the present trend of judicial
decisions is to widen the scope of judicial
review of administrative actions.
DOCTRINE OF LEGITIMATE
EXPECTATION
In India, the SC has developed this doctrine in order
to check the arbitrary exercise of power by the
administrative authorities.
Doctrine of legitimate expectation becomes a part of
the principles of natural justice, and no one can be
deprived of his legitimate expectations without
following the principles of natural justice.
For eg: if the govt. has decided to exclude certain
villages under the drinking water scheme, then the
villagers will legitimately expect the notification from
the govt.
In Nav Jyoti Co-operative Group Housing Society
Vs. UOI (1992)4 SCC 477, it was held that
doctrine of legitimate expectation imposes in
essence a duty on public authority to act fairly by
taking into consideration all relevant factors
relating to such legitimate expectations.
In Union of India v. Hindustan Development
Corporation (1993)3 SCC 499, considering the
nature, scope and applicability of doctrine it was
observed that it only operates in public law field
and its denial is a ground for challenging the
action. But denial can be justified by showing
some overriding public interest.
DOCTRINE OF PUBLIC
ACCOUNTABILITY
Doctrine of Public Accountability is one of the
most important emerging facet of
administrative law in recent times.
The basic purpose of the emergence of the
doctrine 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 abuse of power by the administrative authorities are
made accountable to the public through compensation was
enforced by the SC in the cases of Nilabati Behera vs., State
of Orissa (1993) 2 SCC 746 and M.C. Mehta vs., UOI (1987)1
SCC 395
In Nilabati Behera v. State of Orissa the Court held that a
claim in public law for compensation for violation of human
rights and abuse of power is an acknowledged remedy for the
enforcement and protection of such rights.
In M.C.Mehta vs.,UOI, the court developed the public
accountability doctrine by strengthening the principles as
polluters pay principle.
Thus, every administrative authority shall be
accountable for the proper and efficient discharge of
its statutory duty.
TYPES OF JUDICIAL REVIEW
PUBLIC LAW REVIEW OF
ADMINISTRATIVE ACTION
Different Modes of Public Law Review of
Administrative Action:
Writs (Art.32 and 226)
(a) Writ of Habeas Corpus
(b) Writ of Prohibition
(c) Writ of certiorari
(d) Writ of Mandamus
(e) Writ of Quo Warranto
Public Interest Litigation
Special Leave to Appeal(Art. 136)
PRIVATE LAW REVIEW OF
ADMINISTRATIVE ACTION
Statutory Judicial Remedies
Injunction
Declaratory Actions
Suit for damages
PRIVATE LAW REVIEW/ NON-
CONSTITUTIONAL REVIEW
Private law review refers to powers of ordinary courts
of the land, exercised in accordance with ordinary law
of the land to control administrative action.
Private law review is exercised through injunction,
declaratory action and suit for damages.
This non-constitutional mode of judicial review of any
administrative action can be exercised by:
Civil courts;
Criminal courts;
Tribunals
Consumer courts etc.,
INJUNCTION
Through an injunction, a public authority may
be commanded to do a thing which the law
requires it to do, or to refrain from doing
some thing which is illegal.
An injunction can be issued to an
administrative or a quasi-judicial body.
At present, the law relating to injunctions is
laid down in the Specific Relief Act, 1963.
INJUNCTION AND MANDAMUS
INJ. MAND.
CHEAP COSTLY SECTIONS 36 TO 42 OF THE SPECIFIC
LOWER ONLY IN HC AND RELIEF ACT, 1963 GOVERN THE GRANT
COURTS SC OF INJUNCTIVE RELIEF
WIDER NARROWER
STATUTORY CONSTITUTIONAL

PRIVATE LAW
REVIEW
INJUNCTION AND CERTIORARI
Injunctions are classified into
Certiorari- can quash the action, which can be
restarted three categories:
Perpetual Injunction- forbid the authority from Temporary, (Sec.37)
taking that action in
perpetuity. Perpetual , (Sec. 38)
Mandatory (Sec.39)
According to sec. 37(1), a temporary injunction as an interim
measure to continue until a specified time, or until further
order of the Court; it may be granted at any stage of a suit, and
is regulated by the Code of Civil Procedure. (prima facie case,
balance of convenience, irreparable injury on the plaintiff are
the
principles followed).

A perpetual injunction can be granted on the final


determination of the case, under Sec 38 of the Specific Relief
Act 1963. It determines the rights of the plaintiff to which he is
entitled permanently.
Under sec.39, mandatory injunction not only
involves prohibition but also imposes a
positive duty on the defendant to do some
thing.
INJUNCTION AND CERTIORARI
Injunction is more effective than certiorari.
Certiorari can quash an action, which can be
restarted, but injunction, if perpetual, may
forbid the authority from taking that action in
perpetuity.
INJUNCTION AND MANDAMUS
INJUNCTION MANDAMUS
A suit for injunction can be filed in the Whereas a petition for mandamus has to
Munsif Courts, Civil Judge Senior be made to the High Court.
Division, and District Courts

Injunction is a statutory remedy Mandamus is a constitutional remedy


injunction may be, as a practical matter, a When compared to Injunction,
less expensive remedy, and more Mandamus is expensive and less
convenient if he is located at a place convenient.
away from the High Court.

Claims for injunction and damages may Courts do not award damages while
be combined in the same suit. entertaining applications for mandamus.

The scope of judicial review is, therefore, The scope of judicial review is narrower
wider in a suit for injunction. in relation to the suit for injunction
DECLARATORY ACTIONS

A declaratory action or decree denotes the action of the


Court wherein it declares the rights of the parties.
Sections 34 & 35 of the Specific Relief Act, 1963 deals
with it.
The purpose of declaration is to avoid future litigation
by removing existing causes or controversies,
e.g., where a man is in possession of some property
under a title about which there is some legal doubt,
he may obtain a declaration in his favour to clear his
title.
CONDITIONS FOR THE GRANT OF
DECLARATORY RELIEF
The person must be entitled to a legal
character or a right to any property.
There must be some danger or detriment to such
right or character.
Plaintiff must seek further relief if he is entitled
to it.
1. The person must be entitled to a legal character or a
right to any property.
Legal character includes marital status, legitimacy, nationality,
minority, legitimacy etc.
Determination of legitimacy of child is necessary for determining
the legal status of that child and to get the maintenance as well
as the inheritance from the father as well.
Right to any property include right of status and property also.
X owns a land by inheritance of plot no. 501. Afterwards, it was
wrongfully recorded in the name of Y under plot
no.401. Y forcefully attempted to take possession of the land on
the basis of the wrongful record. X may obtain a declaration of his
right to whole the property.
2. There must be some danger or detriment to such
right or character.
There must be some person or authority, public or
private, either interested in denying such
character or right or must have actually denied it.
3. Plaintiff must seek further relief if he is entitled to
it.
The essential role of declaratory action in public
law as a means of judicial control of administrative
action is yet to be appreciated in India.
It is largely considered and utilized as a mode to
regulate private relationships rather than the
relationship between citizen and the
administration.
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.
Such a suit is filed in the civil court of first
instance and its procedure is regulated by the
CPC.
The requirement of 2 months notice is
mandatory under Sec.80 of CPC.
Section 80 of the Civil Procedure Code
NON-BINDING (ADVISORY REVIEW)
This kind of review of administrative action
can be exercised by Human Rights
Commission, Lok Ayuktha (Ombudsman) and
various other Statutory Commissions like
Women Commissions, Child Commissions,
Scheduled Castes and Tribes Commission etc.,
Jurisdiction of these bodies is advisory but not
without any effect.
CONCLUSION
Thus, judicial review ensures that
adjudicating authorities and executive wing
of the State exercise powers within the limits
of the law and do not transgress their
jurisdiction.
The law of the land has provided sufficient
safeguards to protect the citizens.