Any opinions, findings, conclusions or recommendations expressed in this material are those of the authors and do not necessarily reflect the views of Parallelewelten.
Judicial review is an essential component of the rule of law, which is a basic feature of the Indian Constitution, which is inherited from Britain. By judicial review is meant the power of the courts to examine the Legality of the officials act and thereby to safeguard the fundamental and other essential rights of the citizens. The Judiciary is separate and Independent and vast powers are conferred on Judiciary to adjudicate the disputes, entail fines & penalties, and foremost, the interpretation of law. It is a court’s authority to review the actions of other branches or levels of government, concerning to the court’s power to invalidate legislative and executive actions as being unconstitutional. The whole law of judicial review of administrative action has been developed by judges on case-to-case basis.
The courts in India are given extraordinary powers to control and review the administrative actions. The Courts are observing the creative role in order to protect the relations of the growth and development of administrative law. The scope of Judicial Review and the domain of the courts are handful, where it looks for the specific issues to give shape to the principles by which the administrative functioning can be regulated.
The judicial review’s efficacy exists because it is very flexible, and when a statute does not confer a review or appeal, judicial review’s inherent flexibility provides the citizen with a remedy where one might otherwise not exist.
The underlying object of judicial review is to ensure that the authority does not abuse its power and the individual receives just and fair treatment. The role of judiciary in protecting the citizens against the excess of officials has become all the more important with the increase in the powers and discretion of the public officials in the modern welfare states. But the courts cannot interfere in the administrative activities of their own accord. They can intervene only when they are invited to do so by any person who feels that his rights have been abrogated or are likely to be abrogated as a result of some action of the public official.
But have been said all the above the moot point that should be dwelled upon is that, to what extent does the courts have jurisdiction for the judicial review of administrative actions or to be more precise,… What is the jurisdiction of Supreme Court & High Court for judicial review of administrative actions?
The paper will be divided into three chapters, the first chapter will deal with the Jurisdiction of Supreme Courts (as under Art.32 & 136), second being the Jurisdiction of High Courts (as under Art.226 & 227), and the last chapter will be the summation of this research paper i.e. Conclusion.
Jurisdiction of Supreme Courts
(as under Art.32 & 136)
The power of judicial review is not only an integral part of the Constitution and but also an essential feature of the Constitution of India and a part of the basic structure thereof, which cannot be abolished or whittled down even by an amendment of the Constitution. In any democratic society judicial review is the soul of the system because without it the democracy the rule of law cannot be maintained. Thus, extraordinary jurisdiction of the Supreme Court under Art. 32 or 136 of the Constitution cannot be taken away by legislation or principle of election or estoppel or even by amending the Constitution. 
Art. 32(1) guarantees the right to move the Supreme Court by appropriate proceedings for the enforcement of the Fundamental Rights conferred by Part III of the Constitution. Art. 32(2) empowers the Supreme Court to issue directions, orders or writs, including writs in the nature of Habeas corpus, Mandamus prohibition, Quo warranto and Certiorari, which ever may be appropriate, for the enforcement of Fundamental Rights. Art. 32(3) empowers the parliament to confer by law any such power on any other court within the local limits of its jurisdiction. Art. 32(4) lays down the rights guaranteed by Art. 32 cannot be suspended except as otherwise provided in the Constitution. 
The nature and purpose or judicial review is not the review of the decision of the administrative authority but of the decision making process. Thus, the Supreme Court cannot assume appellate jurisdiction and reappreciate the primary or perceptive facts found by the fact-finding authority.  Though the jurisdiction of the Supreme Court under Art. 32 is confined to the enforcement of the Fundamental Rights yet if there is a clear abuse of process of the court petition is maintainable even if no violation of any Fundamental Right is involved. 
However where there is question of policy is not subject to judicial review. The State has the power to change its policy. The Court will not go into questions of policy of the State which is required to be dealt with by the legislature. The Court could interfere only if the changed policy is arbitrary or violative of the law or the Constitution. The Court also cannot issue direction which would result in amendment of government’s existing policy. 
Where there is a breach of Fundamental Rights and abuse of power the court has the authority to grant compensation for it, by exercising its jurisdiction under Art. 32 of the Constitution.  And for the same purpose the court has the jurisdiction to enforce Fundamental Right even against private bodies and individuals. Hence it can be affirmed that the power vested on the Supreme Court under Art. 32 is not strictly confined to the enforcement of the fundamental rights, clear abuse of process of the court can also be a reason for the exercise of such jurisdiction.
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. The Art. 136 does not confer a right to appeal on any party, but it confers a discretionary power on the Supreme Court to interfere in suitable cases to advance the cause of justice. On one hand the power under Art. 136 is an exceptional power which is to be exercised sparingly, on the other hand it is an overriding power whereunder the court may generously step in to impart justice and remedy injustice.  The Supreme Court’s power to grant special leave to appeal against decision of administrative tribunals and other agencies, has been now regarded as an important mode of judicial review of administrative adjudicatory actions.  The Supreme Court may exercise its power to prevent the miscarriage of justice where there has been an illegality or irregularity of procedure or violation of the principles of natural justice. 
Jurisdiction of High Courts
(as under Art.226 & 227)
Art. 226 gives power to the HC to issue discretions, orders or writs, it empowers the HC to issue orders or writs in the nature of Habeas corpus, Mandamus prohibition, Quo warranto and Certiorari or any of them for the enforcement of Fundamental Rights and for any other purpose also.  Thus the power of judicial review of HC (under Art. 226) is wider than that of SC (under Art 32). The words “for any other purpose”  enables the HC to exercise their power of judicial review for enforcement of ordinary legal rights which are not Fundamental Rights. The jurisdiction of the HC under Art. 226 for enforcement of Fundamental Rights are mandatory whereas for the enforcement of ordinary legal rights it is discretionary.  Since the power of judicial review of the HC is vested in it by the Constitution of India. Hence, no measure of finality given by the legislature to any action or decision can take away this power.  The HC has the power to issue writ to a person or authority, whose location or residence falls within the territorial jurisdiction of the court; or if the cause of action wholly or partly arises within its territorial jurisdiction. Therefore, a HC can issue writ even when the person or authority is located outside its territorial jurisdiction.
However in State of Maharashtra v. Digambar  and State of U.P. v. Committee of Management of S.K.M. Inter College  the SC was of the opinion that the power vested upon the HC under Art. 226 are discretionary and the power cannot be exercised as a court of appeal. The jurisdiction is supervisionary in nature and it can strike down an impugned rule and direct the authorities to refrain it but cannot itself refrain from it.
The jurisdiction of the HC for judicial review also extends to the Army law. The court martial proceedings under the Army Act are subject to review by the HC under Art.226 of the Constitution on India. However, court-martial is not subject to superintendence of the HC under Art. 227. 
Art. 227 invest in the HC the power of superintendence over administrative agencies exercising adjudicatory powers. This power is both administrative and judicial. This power of superintendence casts a duty upon the HC to keep inferior courts and tribunals within the limits of their authority and in accordance with the law. This jurisdiction of the HC is however limited and restrictive in nature. Thus, the jurisdiction under Art. 227 may be exercised for want of jurisdiction, errors of law, perverse findings, gross violation of the principle of natural justice and where finding of fact based on no evidence resulting in manifest injustice.  The SC observed in the case of D.N. Banerji v. P.M. Mukherjee  that Art. 227 do not give the HC with unlimited power to interfere with the administrative adjudicatory function.
The jurisdiction of the HC under Arts. 226 & 227 are distinct and independent of each other.
The power under Art. 226 can be exercised only on an application but power under Art. 227 can be exercised either on application or suo moto. The power of superintendence of the HC under Art. 227 extends not only to quash the decisions of tribunal but also to give directions regarding disposal of the case. The power maybe exercised by the HC either on petition from aggrieved person or suo moto 
Therefore the power of judicial review vested in the HC under Art. 226 & 227 are integral and essential feature of the Constitution of India and a part of the basic structure thereof. Likewise the power of superintendence over the decisions of all courts and tribunals within their respective jurisdictions is also part of basic structure of the Constitution. The Constitutional protection afforded to citizens would become illusionary if it were left to the executive to determine the legality of its own action. And it is also well established that the powers conferred on HC under Art. 227 of the Constitution cannot be limited or circumscribed by any statute.
Public Law Review
Under the provisions of Arts. 32 and 226 of the Indian Constitution, the Supreme Court and High Court have the power to issue writs in the nature of Habeas corpus, Mandamus, prohibition, Quo warranto and Certiorari. The jurisdiction of the Supreme Court is limited only to the enforcement of Fundamental Rights, while the High Court can issue writs not only for the enforcement of Fundamental Right but for other purposes also.
Against whom the writ can be issued?
Purpose of Art. 32 is to protect the individual against the infringement of his fundamental rights. The sources of threat are –
Govt. & Parliament of India, Governments & legislatures of states & local government,
Govt. departmental undertakings,
Agencies incorporated by statutes,
Agencies registered under statutes,
Private individuals & bodies.
The First 3 are amenable to writ jurisdiction of the State. The 4th may be amenable, as they may be included within ‘State’, if they are instrumentalities or agencies of govt.
Judicial review is an essential component of the rule of law, which is a basic feature of the Indian Constitution. Every State action has to be tested on the anvil of rule of law and that exercise is performed, when occasion arises by the reason of a doubt raised in that behalf, by the courts.
Judicial review of administration is, in a sense, the heart of administrative law. It is certainly the most appropriate method of inquiring into the legal competence of a public authority. The aspect of an official decision or an administrative act that may be scrutinized by the judicial process is the competence of the public authority. The important aspect of the study of administrative law is the judicial control of administrative action. The tremendous increase in the powers of the administrative authorities in the modern times. Due to the increased powers of the administration judicial control has become an important area of administrative law, because courts have proved more effective and useful than the legislative or the administrative in the matter being debated. This doctrine discusses various claims and counter claims.
India follows the British system of judicial review process. But like most of the developing countries, in India there are some limitations of judicial review. Everybody knows that the role of judiciary in protecting the citizens against the excess of officials has become all the more important with the increase in the powers and discretion of the public officials in the modern welfare states. So we should overcome all the limitations of judicial control of the land, by making appropriate reforms.
Related ServicesView all
DMCA / Removal Request
If you are the original writer of this essay and no longer wish to have the essay published on the UK Essays website then please.