Judicial Review of Administrative Action Distinguished from Review of Legislation
Chapter Twenty
Syllabus topic 2, "Judicial Review in India"
Pages 60 to 62 of 430
In one line
When a court strikes down an Act it says Parliament could not do this; when it quashes an order it says this officer did not do it properly, and the two sentences have almost nothing in common.
In the wording a student can write in an exam: review of legislation tests a law against the Constitution alone and, if it succeeds, declares the law void for everybody; review of administrative action tests an act against both the parent statute and the Constitution and, if it succeeds, quashes that act as between the parties and ordinarily leaves the authority free to act again lawfully.
Why students confuse them
Because MU's questions move between them without warning. A question about the grounds of judicial review is about administrative action; a question about the basic structure is about legislation; a question about delegated legislation is about both at once. A candidate who has one undifferentiated idea of judicial review will answer the wrong one.
The differences, worked
What is tested, and against what. A statute is tested against the Constitution: legislative competence under Articles 245 and 246, Part III through Article 13, and any other constitutional restriction. An administrative act is tested first against its own parent Act, because it must be within the power conferred, and then against the Constitution.
The presumption. A statute enjoys a presumption of constitutionality, and the burden is on the person attacking it. An administrative order enjoys no such presumption; where the order affects rights, the authority has to show the power and, increasingly, the reasons.
Motive. The motive of a legislature is not examinable: a court asks what the law does, not why the House passed it. The motive of an administrator is examinable, and it is the ground of mala fides and improper purpose in Module II.
Procedure. A legislature owes no hearing to anybody. An administrator owes a hearing wherever civil consequences follow.
Reasons. A legislature gives none. A quasi-judicial authority must ordinarily give them: S.N. Mukherjee v. Union of India, AIR 1990 SC 1984.
The effect of success. A law held unconstitutional is void, and the declaration operates generally. An order quashed is quashed in that case, and the authority may usually make a fresh and lawful order on the same facts.
Where the two meet: delegated legislation
A rule is made by an administrator but is legislative in character, and it therefore attracts elements of both regimes. It is legislative for the purpose of natural justice, so no hearing is owed, which is Shri Sitaram Sugar Co. Ltd. v. Union of India, AIR 1990 SC 1277. It is administrative for the purpose of ultra vires, because it must be within the parent Act. And it is "law" under Article 13(3)(a), so it can be struck down for violating a fundamental right exactly as a statute can. That is why Module IV exists as a separate module.
Judicial Review of Administrative Action Distinguished from Review of Legislation
A worked example
Parliament passes an Act empowering the Central Government to prohibit the export of any commodity in the public interest. The Government makes a rule prohibiting the export of a class of goods and, on the same day, an order refusing a particular exporter's licence.
The Act. Reviewable for competence, which is plainly present, and for violation of Article 19(1)(g), where the Government will rely on Article 19(6) and the court will presume constitutionality.
The rule. Reviewable for being outside the Act, for violating Article 14 or 19, and for manifest arbitrariness. No hearing was owed before it was made.
The order. Reviewable for want of a hearing, for irrelevant considerations, for improper purpose, for want of reasons and for unreasonableness. Its motive is examinable and the file can be called for.
Three attacks, three sets of grounds, one afternoon's work by a ministry.
Distinctions that carry marks
| Review of legislation | Review of administrative action | |
|---|---|---|
| Tested against | The Constitution | The parent Act, then the Constitution |
| Presumption | In favour of validity | None where rights are affected |
| Motive of the maker | Not examinable | Examinable |
| Hearing owed | None | Wherever civil consequences follow |
| Reasons required | No | Ordinarily yes |
| Effect of success | Void generally | Quashed between the parties; fresh lawful order possible |
| Who may be heard | The State defending the law | The authority whose order it is |
What this does NOT mean
It does not mean a court never looks at facts when reviewing a statute. It may look at the object and effect of the law, and at the mischief, but not at the wisdom of the choice.
It does not mean a quashed order can always be remade. Where the defect is want of power, no fresh order is possible at all; where it is want of a hearing, one is.
It does not mean an administrative act enjoys no presumption of regularity. An order expressed in the name of the Governor is presumed regularly made, but that is a presumption about authentication and not about validity.
Quick revision
Legislation is tested against the Constitution, carries a presumption of validity, has an unexaminable motive, owes no hearing and no reasons, and if struck down is void for everybody. Administrative action is tested against the parent Act and the Constitution, carries no such presumption where rights are affected, has an examinable motive, owes a hearing where civil consequences follow and ordinarily reasons, and if quashed is quashed between the parties. Delegated legislation sits between the two: legislative for natural justice, administrative for ultra vires, and law under Article 13(3)(a).
Judicial Review of Administrative Action Distinguished from Review of Legislation
Test yourself
1. Why is the motive of a legislature irrelevant but that of an administrator relevant? Because a legislature exercises a plenary power and the court asks only what the law does, whereas an administrator exercises a power conferred for a stated purpose, so using it for another purpose is itself the vice.
2. What happens after an order is quashed for want of a hearing? The authority may hear the affected person and make a fresh order, which may be to the same effect, because the defect was in the process.
3. Which regime governs a rule made under an Act? Both. It is legislative for natural justice, so no hearing is owed; it is administrative for ultra vires; and it is law under Article 13(3)(a), so Part III applies to it.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.