LLM Group 1 Constitutional and Administrative Law Administrative Process and Judicial Control 2016 Question Paper with Solutions

Where the power comes from

Judicial review in India is textual, not implied. The United States Supreme Court had to derive it in Marbury v. Madison, 5 US 137 (1803), from the nature of a written constitution; in India the Constitution confers it expressly. Article 13 declares that laws inconsistent with or in derogation of the fundamental rights are void, and defines "law" to include ordinances, orders, byelaws, rules, regulations and notifications. Article 32 guarantees the right to move the Supreme Court for enforcement of fundamental rights, and Articles 226 and 227 give the High Courts a wider writ and supervisory jurisdiction. Articles 131 to 136 confer original, appellate and special leave jurisdiction, and Articles 245 and 246 with the Seventh Schedule make legislative competence a justiciable question.

The Constituent Assembly made the choice deliberately. Dr. Ambedkar described Article 32 as the very soul of the Constitution and its very heart, and the Assembly rejected the suggestion that the Court's power to test legislation should be curtailed, precisely because a Bill of Rights without a remedy is a declaration and not a law.

The second object: constitutional amendments

This is where Indian judicial review differs most sharply from the English and Australian models, and the sequence of cases must be given accurately. In Shankari Prasad v. Union of India, AIR 1951 SC 458, and Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845, the Court held that an amendment under Article 368 was not "law" within Article 13 and so could not be tested against the fundamental rights. In I.C. Golak Nath v. State of Punjab, AIR 1967 SC 1643, an eleven judge Bench reversed that by six to five, holding that an amendment is law and cannot abridge the fundamental rights, but applied the ruling prospectively.

Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, resolved it. Thirteen judges sat for sixty eight days on the challenge by the head of the Edneer Mutt to Kerala land reform legislation, and by seven to six the Court held that Parliament may amend any part of the Constitution, including the fundamental rights, but may not damage or destroy its basic structure. The basic features identified across the opinions include the supremacy of the Constitution, the republican and democratic form of government, its secular and federal character, the separation of powers, judicial review itself, free and fair elections and the rule of law.

The third object: administrative action

Administrative action is reviewed under the three heads of Council of Civil Service Unions v. Minister for the Civil Service, [1985] AC 374: illegality, irrationality and procedural impropriety, with proportionality as a fourth. The Indian courts add the constitutional ground of arbitrariness under Article 14, after E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3, which makes the Indian threshold of intervention lower than the English. The distinction that governs this branch is that review is directed at the decision making process and not at the merits of the decision, which Tata Cellular v. Union of India, (1994) 6 SCC 651, states as the rule for government contracts.

The second limit is the political question and the doctrine of justiciability. Courts decline matters that are constitutionally committed to another branch and admit of no judicially manageable standard: the wisdom of economic policy, as in Balco Employees Union v. Union of India, (2002) 2 SCC 333, where the Court refused to examine the merits of disinvestment in Bharat Aluminium and said that in matters of economic policy the court is not the forum and that it is not for the court to consider the relative merits of different economic policies; questions of foreign affairs and defence; and the internal proceedings of the legislature.

The third limit is self imposed and is the most important in practice. Judicial review is not an appeal, as Chief Constable of the North Wales Police v. Evans, [1982] 1 WLR 1155, put it in warning that review is concerned with the manner in which the decision was reached and not with the decision itself. The court will not substitute its own opinion for that of an expert body; will not direct the legislature to enact a law, nor ordinarily interfere with a policy choice; requires locus standi, though relaxed for public interest litigation; and applies the discretionary bars of laches, alternative remedy, res judicata under Daryao v. State of U.P., AIR 1961 SC 1457, and conduct.

A critical assessment

The case against the present scope must be stated, and stated at its strongest. The basic structure doctrine has no textual anchor: Article 368 says only that Parliament may amend "this Constitution", and the doctrine reads into it a limitation the framers did not write, on the authority of a seven to six majority. Critics add that its content is open ended, since a basic feature is whatever a majority of judges says it is, and that the doctrine was used in the NJAC case to strike down a unanimous constitutional amendment concerning judicial appointments, in which the Court had an institutional interest. Public interest litigation, similarly, has moved from correcting inaccessibility to supervising administration, which is why the Court itself had to lay down safeguards in State of Uttaranchal v. Balwant Singh Chauffal, (2010) 3 SCC 402, requiring verification of the petitioner's credentials and exemplary costs for petitions filed for oblique motives.

Conclusion. The scope of judicial review in India is unusually wide, because it is textually conferred by Articles 13, 32, 226 and 227, because it reaches all three of legislation, constitutional amendment and administrative action, and because Kesavananda Bharati placed the amending power itself under review through the basic structure doctrine, a step the courts of most constitutional democracies have not taken. Its limits are of four kinds: express constitutional bars, of which Articles 74(2), 122, 212 and the Tenth Schedule are the examples, each read narrowly by the courts; the exclusion of matters that are not justiciable, of which economic policy under Balco is the clearest; the self restraint that follows from the proposition that review is not appeal; and the institutional inability of a court to administer what it has ordered. The honest summary is that the scope is fixed by the Constitution and the limits are fixed largely by the judges themselves, and that this is both the doctrine's strength, since it allowed Kesavananda, Minerva Mills and Madras Bar Association, and its principal vulnerability to criticism.

(a) Writ of certiorari

Certiorari, "to be certified", is an order of a superior court calling up the record of an inferior tribunal and quashing a decision made without jurisdiction or otherwise unlawfully. It is corrective and looks backwards, being directed at a decision already made, in contrast to prohibition, which is preventive and stops a proceeding before the decision is reached. Both may issue in the same case, prohibition as to what remains and certiorari as to what has been done.

In India it issues under Article 32 from the Supreme Court and under Article 226 from the High Courts, and the words "in the nature of" free the courts from the technicalities that governed the writ in England. The Supreme Court may issue it only where a fundamental right is infringed; a High Court may issue it for any purpose.

The fourth ground is the difficult one and it must be explained rather than named. In Syed Yakoob v. K.S. Radhakrishnan, AIR 1964 SC 477, arising from the grant of a stage carriage permit, the Supreme Court held that a writ of certiorari can be issued for correcting errors of jurisdiction and for a breach of natural justice, and that an error of law apparent on the face of the record can also be corrected, but that a finding of fact, however erroneous, cannot be interfered with, since the jurisdiction is supervisory and not appellate; the Court added that an error of law which is apparent must be self evident and must not require an elaborate argument to establish. In Hari Vishnu Kamath v. Ahmad Ishaque, AIR 1955 SC 233, the Court had already held that no exhaustive definition of such an error is possible, and that where two views are reasonably possible the view taken by the tribunal cannot be called an error apparent.

The effect of an ouster clause is the last point. A clause providing that the decision "shall be final" excludes appeal but not certiorari for jurisdictional error. A clause providing that a determination "shall not be called in question in any court" was tested in Anisminic Ltd. v. Foreign Compensation Commission, [1969] 2 AC 147, where the Commission had rejected the claim of a company whose Egyptian property was sequestrated in 1956, on a construction of the Order in Council which required the successor in title to be a British national when on the true construction that requirement did not apply. The House of Lords held that a decision reached by asking the wrong question, or by taking into account a matter the Commission had no right to take into account, is a nullity, and that a clause protecting a "determination" does not protect a purported determination that is in law no determination at all. In India the point is stronger still, because L. Chandra Kumar v. Union of India, (1997) 3 SCC 261, holds judicial review under Articles 32, 226 and 227 to be part of the basic structure, so no ouster clause can be effective against the constitutional courts.

Explanation IV contains constructive res judicata, and it is the part that decides most cases: any matter which might and ought to have been made a ground of attack or defence in the former proceeding shall be deemed to have been a matter directly and substantially in issue. The effect is that a litigant must bring his whole case at once. He cannot keep a ground in reserve and, having lost, start again on it.

Daryao v. State of U.P., AIR 1961 SC 1457, applied the principle to writ proceedings and its reasoning is what an answer needs. Petitions under Article 32 were filed after petitions on the same facts had been dismissed by the High Court under Article 226. It was argued that Article 32 is itself a fundamental right and cannot be defeated by a rule of procedure. The Supreme Court rejected that, holding that res judicata is not a technical rule but a rule of public policy founded on the need for finality, that it is not confined to Section 11 CPC, and that a petition under Article 32 is barred where a petition under Article 226 on the same facts has been dismissed on the merits after contest and no appeal has been taken.

Two further distinctions complete the note. Res judicata is not estoppel: estoppel proceeds from the act of a party and binds him because of what he has represented, res judicata proceeds from the judgment of a court and binds because the matter has been decided. And res judicata is not stare decisis: the first binds parties as to a matter, the second binds courts as to a proposition of law, and a decision may be a precedent for the world while binding nobody as res judicata but the parties before it.

The two notes compared

Forward Construction Co. v. Prabhat Mandal (Regd.), Andheri, (1986) 1 SCC 100, confirms the position for both Articles 32 and 226, holding that a matter which might and ought to have been raised in the earlier proceeding is barred in the later one, and that the law discourages a litigant who withholds a ground for future use. Between them these two decisions, and not Direct Recruit alone, are what an examiner expects on constructive res judicata in this subject.

For full marks, cover: what a hearing is for, since the significance of the distinction cannot be explained without it; the components of a pre-decisional hearing; the circumstances in which the law permits it to be postponed, which is the whole justification for the post-decisional hearing; the objections to the post-decisional hearing, which are serious and must be stated; the conditions the Supreme Court has attached to it; the useless formality doctrine as the limiting case; and an assessment of whether the post-decisional hearing is an adequate substitute. This answer takes the subject by principle. Q.P. Code 11865 sets the identical question as its own question 3, and it is taken there historically.

The components of a pre-decisional hearing

A hearing before decision consists of notice, disclosure, an opportunity to answer, and a reasoned decision by the person who heard. The notice must state the substance of the case with enough particularity to allow an answer. The material relied on must be disclosed: in Dhakeswari Cotton Mills Ltd. v. CIT, AIR 1955 SC 65, an assessment based on information never shown to the assessee was set aside. The opportunity may be oral or in writing according to the nature of the proceeding, with cross examination where credibility is in issue. And the decision must be taken by the authority that heard, since he who decides must hear, and must give reasons, which S.N. Mukherjee v. Union of India, (1990) 4 SCC 594, made a general requirement of decisions affecting rights.

When the hearing may be postponed

The law permits postponement in four situations, and each has a rationale that a good answer states.

The Indian doctrine and its two leading cases

Maneka Gandhi v. Union of India, (1978) 1 SCC 248, is the origin of the Indian post-decisional hearing. The petitioner's passport was impounded under Section 10(3)(c) of the Passports Act, 1967, in the interests of the general public, without reasons and without a hearing. The Supreme Court held that a procedure under Article 21 must be right, just and fair and not arbitrary, and that audi alteram partem must be read into the section unless expressly excluded. It nevertheless declined to quash the order, accepting the Attorney General's undertaking that the petitioner would be given an opportunity to be heard, and Bhagwati J. observed that where an immediate action is required a post-decisional hearing may satisfy the requirement of fairness. The concession was pragmatic, and everything that follows in Indian law flows from it.

Two further decisions complete the doctrine. In K.I. Shephard v. Union of India, (1987) 4 SCC 431, employees of three private banks were excluded from employment on the amalgamation of the banks with nationalised banks, and were offered a hearing afterwards. The Supreme Court rejected the post-decisional hearing in terms which are the strongest Indian criticism of the device: it observed that once a decision has been taken there is a tendency to uphold it, and that a representation may not yield any fruitful purpose, so that a post-decisional hearing is no substitute for a pre-decisional one where there was no reason why a hearing could not have been given first. In Liberty Oil Mills v. Union of India, (1984) 3 SCC 465, the Court upheld a scheme of post-decisional hearing in import control, holding that where the statute contemplates immediate action the requirement of natural justice may be satisfied by a hearing afterwards, provided it is not an empty formality.

An assessment

The post-decisional hearing is best understood as a device of necessity rather than a principle of fairness, and the honest answer says so. Its advantage is real: it allows the administration to act at once where delay would be fatal, and it preserves some element of participation instead of abandoning it. Its defects are equally real, and K.I. Shephard names the chief one, that an authority which has acted is psychologically committed and is unlikely to reverse itself. There are two further defects. The harm may be irreversible: a business closed, a passport impounded before a journey, a management displaced, cannot be restored by a later hearing even if the order is set aside. And the burden shifts: before the decision the authority must justify acting, after it the individual must persuade the authority to undo what it has done.

Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405, added two things that recur constantly. The first is that fairness is required of every action, judicial, quasi judicial, administrative or quasi administrative alike. The second, and the more useful in practice, is that an order must be judged by the reasons it bears on its face and cannot be supplemented by fresh reasons in an affidavit, the Court approving Gordhandas Bhanji and observing that an order is not like old wine, becoming better as it grows older. The Court also gave "civil consequences" a deliberately wide meaning, covering not merely property and personal rights but civil liberties, material deprivation and non pecuniary loss, which is what brings so much administrative action within the rule at all.

Union of India v. Tulsiram Patel, AIR 1985 SC 1416, supplies the other side and is the authority for the exceptions. Government servants dismissed without enquiry under the second proviso to Article 311(2) challenged their dismissals. The Constitution Bench held that where that proviso genuinely applies, natural justice stands excluded by the Constitution itself, and that the content of natural justice is what good conscience requires in the given situation, nothing more and nothing less. It is the case to cite whenever an answer turns to when a hearing may be dispensed with.

For full marks, cover: the text of Article 226 clause by clause, since the question is about extent; the four features that make it wider than Article 32, namely the purposes, the persons, the territory and the remedies; the territorial reach after the Fifteenth Amendment; against whom a writ lies, and the public duty test; the discretionary bars; then Article 227 separately, its supervisory character and how it differs from Article 226; and the basic structure protection of both. This answer works through the text and the heads of jurisdiction. Q.P. Code 11865 sets the identical question as its own question 4, and it is taken there by comparison and by the limits.

Four features that make it wider than Article 32

First, the purposes. Article 32 lies only for the enforcement of fundamental rights. Article 226 lies for that and for any other purpose, which includes the enforcement of an ordinary legal right, a statutory right or a common law right. In Calcutta Gas Co. (Proprietary) Ltd. v. State of West Bengal, AIR 1962 SC 1044, the Supreme Court held that the words "for any other purpose" enable a High Court to issue a writ for the enforcement of any legal right, so long as the petitioner has a personal or individual right in the subject matter, and that the right need not be a fundamental right.

Third, the territory. The jurisdiction extends throughout the territories over which the High Court exercises jurisdiction, and after clause (2) to authorities outside them where part of the cause of action arises within them. In Kusum Ingots and Alloys Ltd. v. Union of India, (2004) 6 SCC 254, the Supreme Court held that even a small part of the cause of action arising within a High Court's territory confers jurisdiction, but that the court may still decline on the principle of forum conveniens, and that the passing of a legislation by Parliament does not by itself give the Delhi High Court jurisdiction over every challenge to it.

Fourth, the remedies. The power is to issue "directions, orders or writs", so the High Court is not confined to the five named writs nor to the technical rules attaching to them in England. It may mould the relief, issue a direction where no writ would lie, award compensation in a proper case following Rudul Sah v. State of Bihar, (1983) 4 SCC 141, and Nilabati Behera v. State of Orissa, (1993) 2 SCC 746, and issue continuing directions.

The other bars are laches, unexplained delay, since a stale claim may have upset settled rights and there is no fixed period; res judicata, applied to writ proceedings by Daryao v. State of U.P., AIR 1961 SC 1457, as a rule of public policy; conduct, including suppression of material facts and unclean hands; the existence of disputed questions of fact requiring evidence, which are better tried in a suit though the bar is not absolute; and the absence of locus standi, relaxed for public interest litigation but not abolished.

Article 227: superintendence

Article 227(1) gives every High Court superintendence over all courts and tribunals throughout the territories over which it exercises jurisdiction. Clauses (2) and (3) give ancillary powers to call for returns, to make and issue general rules and forms for regulating practice and proceedings, and to settle tables of fees. Clause (4) excludes courts and tribunals constituted by or under any law relating to the Armed Forces.

The leading exposition is Waryam Singh v. Amarnath, AIR 1954 SC 215, where the Supreme Court held that the power under Article 227 is one of judicial superintendence, that it is to be exercised most sparingly and only in appropriate cases to keep subordinate courts within the bounds of their authority, and not for correcting mere errors. Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675, drew the distinction in detail, holding that certiorari under Article 226 is directed at the record of an inferior court and issues to quash, while supervision under Article 227 is exercised over the court itself and may issue directions; that part of the decision on the availability of certiorari against a civil court order was later reconsidered in Radhey Shyam v. Chhabi Nath, (2015) 5 SCC 423, which held that certiorari does not lie against an order of a civil court, and that judicial orders of civil courts are amenable only to Article 227.

For full marks, cover: the definition of discretion and why the modern State cannot function without it; the two stage analysis that organises the whole subject, namely failure to exercise discretion and abuse of discretion, because that division is what a good answer is built on; under the first head, sub-delegation, acting under dictation, self imposed fetters and non application of mind; under the second, improper purpose, irrelevant considerations, mala fides, unreasonableness, and proportionality; the subjective satisfaction problem and how the courts got round it; and a closing assessment of how far review actually constrains discretion.

The tension is captured in the maxim that in a government of laws there is no unfettered discretion. In S.G. Jaisinghani v. Union of India, AIR 1967 SC 1427, dealing with the quota rule and seniority of income tax officers, the Supreme Court quoted Douglas J. to the effect that where discretion is absolute, men have always suffered, and held that the absence of arbitrary power is the first essential of the rule of law, that discretion must be confined within clearly defined limits, and that a decision should be predictable and the citizen should know where he is.

The organising division

Review of discretion falls into two heads and every ground belongs to one of them. The first is failure to exercise discretion, where the authority has not truly applied its own mind to the case at all. The second is abuse of discretion, where the mind has been applied but the power has been misused. The division matters because the remedies differ: in the first the court usually remits the matter for a proper decision, in the second it quashes the decision reached.

Self imposed fetters. An authority may adopt a policy to guide the exercise of a discretion, since consistency is itself a virtue, but it may not treat the policy as a rule that decides every case. British Oxygen Co. Ltd. v. Board of Trade, [1971] AC 610, states the balance: the Board had a policy of refusing investment grants for items costing less than twenty five pounds, and had refused a grant for gas cylinders costing about twenty pounds each although the company had spent four million pounds on them. The House of Lords upheld the policy but held that the authority must not shut its ears to an application and must always be willing to listen to anyone with something new to say.

Non application of mind. A decision taken mechanically, on a printed form, without considering the material, or by adopting another's conclusion without examination, is bad. In preventive detention this ground is the commonest, since a detaining order founded on stale grounds, or on grounds one of which is irrelevant, shows that the mind was not applied to the material actually before it.

Irrelevant considerations and failure to consider relevant ones. This is the first limb of Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, [1948] 1 KB 223: the authority must take into account matters it is bound to consider and must exclude from consideration matters that are irrelevant. In Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740, a detention order recited that it was made to prevent a breach of "law and order", whereas the rule authorised detention to prevent a breach of "public order". The Supreme Court distinguished the three concepts as three concentric circles, law and order being the widest, public order narrower and the security of the State narrowest, and held the order bad because it was founded on a ground the rule did not permit.

Mala fides. Malice in fact, personal spite, is rarely proved: S. Pratap Singh v. State of Punjab, AIR 1964 SC 72, is the exception, where a civil surgeon's suspension was shown to have been engineered because of a Chief Minister's displeasure. Malice in law, the use of a power on extraneous grounds, is the practical ground, and Express Newspapers (P) Ltd. v. Union of India, (1986) 1 SCC 133, is its illustration, the re-entry and demolition notices against the Express Building having been found to be a colourable exercise aimed at the newspaper's coverage.

Proportionality. Om Kumar v. Union of India, (2001) 2 SCC 386, fixed the Indian position: where a fundamental right is restricted the court applies proportionality as a primary reviewer, deciding for itself whether the restriction is excessive; where an administrative decision, particularly a service penalty, is challenged, it applies Wednesbury as a secondary reviewer and interferes only where the penalty shocks the conscience. Ranjit Thakur v. Union of India, (1987) 4 SCC 611, is the service example, a sentence of rigorous imprisonment and dismissal for refusing food being held so strikingly disproportionate as to be perverse. The structured four part test, legitimate aim, rational connection, least restrictive means and fair balance, comes from Modern Dental College and Research Centre v. State of M.P., (2016) 7 SCC 353, and was adopted in Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.

The subjective satisfaction problem

The hardest case is the statute that makes the authority's own satisfaction the condition of the power, because on its face that excludes review. The courts have answered it in two moves.

The second is the collapse of the Liversidge approach. In Liversidge v. Anderson, [1942] AC 206, the House of Lords held by four to one that "if the Secretary of State has reasonable cause to believe" in Regulation 18B meant only that he must think he has, so that the court could not examine the grounds. Lord Atkin dissented, saying that he knew of only one authority which might justify the suggested method of construction, and quoting Humpty Dumpty's claim that a word means just what he chooses it to mean, and adding that amid the clash of arms the laws are not silent. His dissent is now regarded as correct, and in Ridge v. Baldwin, [1964] AC 40, and later cases the majority was treated as a decision of the war and not of the law. In India Khudiram Das v. State of West Bengal, (1975) 2 SCC 81, held that even where a statute rests on subjective satisfaction, the court may examine whether the satisfaction was arrived at on relevant materials, whether it was vitiated by non application of mind, and whether the grounds are germane.

The Indian authority on reasons that is most often expected

Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405, is the decision an examiner looks for here, and it makes two points that bear directly on this question. The first is that fairness is demanded of every kind of action, judicial, quasi judicial and administrative alike, so the duty does not depend on classifying the function. The second is the one that decides cases: a statutory order must be judged by the reasons it bears on its face, and its validity cannot be propped up by fresh reasons supplied afterwards in an affidavit. The Court approved Commissioner of Police, Bombay v. Gordhandas Bhanji on that point and observed that an order is not like old wine, becoming better as it grows older. The practical consequence is severe for the administration: reasons invented after the challenge is filed are worthless, so the record must be made at the time the decision is taken or not at all.

For full marks, cover: three notes of roughly equal length; for the history, the English prerogative writs, Dr. Bonham's Case, Marbury v. Madison, the position in British India under the Regulating Act and the Government of India Acts, and the Indian development in three phases after 1950; for the finality clause, what it says, why it does not exclude certiorari, and the two decisions that settle it; for alternative remedies, that the rule is one of discretion and not of jurisdiction, the exceptions in Whirlpool, and the 2023 correction in Godrej Sara Lee.

Marbury v. Madison, 5 US 137 (1803), converted it into a doctrine. William Marbury had been appointed a justice of the peace in the final hours of the Adams administration; his commission was signed and sealed but not delivered, and Madison, the incoming Secretary of State, withheld it. Marbury sought mandamus in the Supreme Court under Section 13 of the Judiciary Act, 1789. Marshall CJ held that Marbury had a right to the commission and that mandamus was the appropriate remedy, but that Section 13, in purporting to give the Supreme Court original jurisdiction to issue mandamus, was inconsistent with Article III of the Constitution and therefore void. The reasoning is the point: it is emphatically the province and duty of the judicial department to say what the law is, and a law repugnant to the Constitution is void. Review was thus derived from the nature of a written constitution rather than from any express grant.

After 1950 the development runs in three phases. The first, from 1950 to 1973, is the contest over the amending power: Shankari Prasad, AIR 1951 SC 458, and Sajjan Singh, AIR 1965 SC 845, held an amendment immune from Article 13; I.C. Golak Nath, AIR 1967 SC 1643, reversed that by six to five; and Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, settled it, thirteen judges holding by seven to six that Parliament may amend any provision but may not damage the basic structure. The second, from 1975 to 1980, is the Emergency and the recovery from it: ADM Jabalpur v. Shivkant Shukla, (1976) 2 SCC 521, is the low point, and Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1, and Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625, the recovery, the latter striking down clauses (4) and (5) of Article 368 which had purported to make amendments unchallengeable and the amending power unlimited. The third, from 1978 onwards, is the expansion of review over administrative action and the growth of public interest litigation, beginning with Maneka Gandhi v. Union of India, (1978) 1 SCC 248, and S.P. Gupta v. Union of India, 1981 Supp SCC 87, and continuing through L. Chandra Kumar v. Union of India, (1997) 3 SCC 261, which placed review itself in the basic structure, to Madras Bar Association v. Union of India, 2025 INSC 1330, decided on 19 November 2025, which struck down provisions of the Tribunals Reforms Act, 2021, for re-enacting invalidated provisions and directed the creation of a National Tribunals Commission.

The Bharat Bank Ltd. v. Employees of the Bharat Bank Ltd., AIR 1950 SC 188, established early that a provision making an award final does not prevent the Supreme Court exercising its jurisdiction under Article 136, since that Article is a constitutional power exercisable notwithstanding anything in any statute. In Anisminic Ltd. v. Foreign Compensation Commission, [1969] 2 AC 147, the strongest form of clause was tested: Section 4(4) of the Foreign Compensation Act, 1950, provided that a determination by the Commission of any application made to it should not be called in question in any court of law. The House of Lords held that the Commission, by requiring the successor in title of a sequestrated Egyptian business to be a British national when the Order did not so require, had asked itself the wrong question, and that a decision so reached is a nullity; a clause protecting a "determination" cannot protect a purported determination which in law is none. The doctrinal significance is that it treats every error going to jurisdiction as removing the protection of the clause, which leaves the clause with very little to do.

(c) Alternative remedies and judicial review

The rule is that where a statute provides an adequate alternative remedy, the High Court will ordinarily require the petitioner to pursue it before invoking Article 226. Its justifications are practical: the statutory authority is usually better placed to find facts; the scheme of the Act should be allowed to work; and the writ jurisdiction should not become the first port of call in every dispute.

The crucial proposition, and the one most often stated wrongly, is that this is a rule of policy, convenience and discretion, and not a rule of jurisdiction. The existence of an alternative remedy does not make the writ petition incompetent; it gives the court a reason to decline to entertain it. Under Article 32 the rule has even less force, because the right to move the Supreme Court is itself a fundamental right, and Romesh Thappar v. State of Madras, AIR 1950 SC 124, held that the Court cannot refuse to entertain a petition disclosing infringement of a fundamental right merely because another remedy exists, though in practice the Court routinely relegates petitioners to the High Courts.

Godrej Sara Lee Ltd. v. Excise and Taxation Officer cum Assessing Authority, decided on 1 February 2023, is the modern correction and should be cited for currency. The High Court had dismissed a writ petition solely on the ground that a statutory revision was available. The Supreme Court held that the mere availability of an alternative remedy of appeal or revision, which the party invoking Article 226 has not pursued, would not oust the jurisdiction of the High Court and render the writ petition "not maintainable", and that a court ought to distinguish between maintainability, which goes to competence, and entertainability, which is a matter of discretion. It deprecated the practice of dismissing petitions on this ground without examining whether the case fell within the recognised exceptions.

Conclusion. The three notes trace the same idea at three points in its life. The history shows judicial review growing from a device by which the King's Bench kept justices of the peace within their powers, through Coke's claim in Bonham and Marshall's reasoning in Marbury, into a power that in India is textually conferred by Articles 13, 32, 226 and 227 and reaches even constitutional amendments after Kesavananda. The finality clause is the legislature's attempt to stop that growth, and the courts' answer, from Bharat Bank through Anisminic to Kihoto Hollohan, is that finality within a statutory scheme is one thing and immunity from constitutional supervision quite another; after L. Chandra Kumar the second is simply unavailable. The rule about alternative remedies is the courts' own restraint, imposed for reasons of convenience rather than of power, and Whirlpool and Godrej Sara Lee fix its true weight: it is a reason to send a litigant elsewhere, never a reason to say that the door was closed.

(a) Violation of fundamental rights as a ground of judicial review

This ground needs no doctrinal construction, because the Constitution states it. Article 13(1) provides that all laws in force immediately before the commencement of the Constitution, in so far as they are inconsistent with Part III, shall to the extent of the inconsistency be void. Article 13(2) forbids the State to make any law which takes away or abridges the rights conferred by Part III, and provides that any law made in contravention shall, to the extent of the contravention, be void. Article 13(3)(a) defines "law" to include any ordinance, order, byelaw, rule, regulation, notification, custom or usage having the force of law, which brings the whole of delegated legislation within the ground.

Against whom the ground runs is settled by Article 12, which defines "the State" to include the Government and Parliament of India, the Government and legislature of each State, and all local or other authorities within the territory of India or under the control of the Government of India. The expansion of "other authorities" therefore expands this ground of review. R.D. Shetty v. International Airport Authority of India, (1979) 3 SCC 489, laid down the tests of an instrumentality or agency: the entire share capital or the chief source of funds coming from the State, deep and pervasive State control, a monopoly conferred or protected by the State, and functions of public importance closely related to governmental functions. Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722, applied them to a registered society running an engineering college, and Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111, restated the test as whether the body is financially, functionally and administratively dominated by or under the control of the Government, the control being particular to the body and pervasive.

A rule is more vulnerable than a statute, and this is the practical point for an administrative law paper. A statute enjoys a presumption of constitutionality; a rule enjoys the same presumption but may in addition be attacked as ultra vires the parent Act, as inconsistent with another statute, and as manifestly arbitrary, which Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, (1985) 1 SCC 641, established by holding that subordinate legislation does not carry the same degree of immunity as an Act of Parliament.

(b) Public interest litigation and judicial review

Public interest litigation is not a separate jurisdiction. It is ordinary judicial review under Articles 32 and 226 with the requirement of personal standing relaxed, so that a person acting bona fide in the public interest may move the court on behalf of those who cannot move it themselves.

Its origin was a diagnosis rather than a theory. The rights in Part III were available to everyone, but the remedy was available only to those who could find a lawyer, pay a fee and file a petition, which excluded exactly the people whose rights were most often violated. Justices Bhagwati and Krishna Iyer set out to close that gap in the late 1970s.

Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161, built the machinery. A letter about bonded labour in the stone quarries of Faridabad was treated as a writ petition; the Court appointed commissioners to visit the quarries and report; and it held that Article 32 does not prescribe any particular form of proceeding, that the Court may adopt whatever procedure is appropriate to enforce a fundamental right, and that fact finding commissioners are permissible because a bonded labourer cannot lead evidence in the ordinary adversarial way. That is the origin of the investigative and supervisory character of Indian PIL.

The abuses are real and must be stated. Petitions filed for publicity, for private gain, or at the instance of a business rival; petitions filed with political motives; and petitions that seek to have the court decide a policy question that has no judicially manageable standard. The Supreme Court itself set out the safeguards in State of Uttaranchal v. Balwant Singh Chauffal, (2010) 3 SCC 402, directing courts to encourage genuine PIL and discourage the rest, to verify the credentials of the petitioner before entertaining the petition, to satisfy themselves prima facie about the correctness of the contents, to be satisfied that substantial public interest is involved, to give priority to petitions involving larger public interest, and to impose exemplary costs on petitions filed for extraneous considerations. The Court also directed the High Courts to frame rules for the encouragement of genuine PIL.

Conclusion. The two notes describe the substance and the access side of the same power. Violation of a fundamental right is the strongest ground of judicial review in Indian law because the Constitution itself declares the offending law void under Article 13, brings every rule, byelaw and notification within that declaration by Article 13(3)(a), and forbids waiver; the only real questions in practice are whether the body is "the State" within Article 12, which R.D. Shetty and Pradeep Kumar Biswas answer, and what standard applies to the right in issue, which after Maneka Gandhi means the combined discipline of Articles 14, 19 and 21. Public interest litigation is what made that ground available to the people most likely to need it, by relaxing standing in S.P. Gupta, by accepting a letter as a petition, by appointing commissioners in Bandhua Mukti Morcha to gather facts a bonded labourer could never prove, and by forging new remedies in M.C. Mehta. Its difficulties are those of any jurisdiction that grows out of a procedural relaxation rather than a textual grant, which is why the Court had to impose its own discipline in Balwant Singh Chauffal, and why the honest verdict is that PIL is indispensable in a country with these inequalities and requires the safeguards precisely for that reason.

For full marks, cover: the meaning of the doctrine and its constitutional basis in a government of enumerated powers; the division into substantive and procedural ultra vires, which organises the answer; under substantive, the five ways in which a body may exceed its power, each with a case; under procedural, the mandatory and directory distinction; the doctrine as applied to delegated legislation, to administrative action and to corporations; the extended or broad ultra vires which absorbs natural justice and unreasonableness; the effect of an act held ultra vires, including the void and voidable problem; and the criticism that the doctrine is a fiction, which is a genuine academic debate and worth stating.

It is convenient to distinguish the doctrine from its neighbours. A finding that an act is ultra vires is a finding about power. A finding of mala fides is about purpose; of unreasonableness, about content; of breach of natural justice, about procedure. Modern usage often absorbs all of these into a broad or extended ultra vires, on the footing that Parliament never intends a power to be exercised unfairly or irrationally, but the narrow sense should be understood first.

Substantive ultra vires

A body acts substantively ultra vires in five ways, and an answer that lists them with authority earns the marks.

First, the parent Act is itself invalid. If the Act conferring the power is beyond the competence of the enacting legislature or violates Part III, everything done under it falls, and no question about the exercise arises.

Third, the rule or order goes beyond the four corners of the Act. In General Officer Commanding in Chief v. Dr. Subhash Chandra Yadav, (1988) 2 SCC 351, the Supreme Court held that for a rule to have the effect of a statutory provision it must conform to the provisions of the statute under which it is framed and must come within the scope and purview of the rule making power of the authority framing it. In Kunj Behari Lal Butail v. State of H.P., (2000) 3 SCC 40, a rule made under the Himachal Pradesh Ceiling on Land Holdings Act, 1972, cut down an exemption for tea estates which the Act itself had conferred. The Court struck it down, holding that a general power to make rules for carrying out the purposes of an Act does not enable the rule making authority to make a rule that travels beyond the scope of the Act or is inconsistent with any of its provisions.

Fourth, the power is exercised by the wrong person, or over the wrong subject matter, or beyond the territory or time allowed. Sub-delegation without authority falls here, delegatus non potest delegare, subject to the practical relaxation of Carltona Ltd. v. Commissioners of Works, [1943] 2 All ER 560, under which a Minister acts through departmental officials. So does an order made after the power has expired, or applied to a person outside the class the statute describes.

Whether non compliance is fatal depends on whether the requirement is mandatory or directory, and the test is the object of the provision and the consequence of non compliance. In Raza Buland Sugar Co. Ltd. v. Municipal Board, Rampur, AIR 1965 SC 895, a statute required publication of a draft tax proposal in a Hindi newspaper; publication was made in a different manner. The Supreme Court held that the requirement of publication was mandatory, because its purpose was to give the ratepayers an opportunity to object, but that the requirement as to the particular manner of publication was directory, so that substantial compliance sufficed. The distinction is not verbal: a mandatory requirement protects a right, a directory one regulates convenience.

Extended ultra vires

The modern doctrine absorbs grounds that are not, in the narrow sense, about power at all. The reasoning is that Parliament, when it confers a discretion, is presumed to intend that it be exercised fairly, reasonably, for the purposes of the Act and on relevant considerations; a decision that fails those requirements is therefore outside the power conferred, and so ultra vires. On this view Padfield v. Minister of Agriculture, Fisheries and Food, [1968] AC 997, where the Minister refused to refer a milk price complaint for reasons of political convenience, is an ultra vires case, because a discretion must be used to promote the policy and objects of the Act.

Effect, and the void or voidable problem

An act held ultra vires is void, not merely voidable, and in principle it has no legal effect from the beginning. But the proposition cannot be applied without qualification, because until a court declares it, the act appears valid and people act on it. The courts have therefore accepted that a void order has factual consequences that may have to be worked out, that relief remains discretionary so that a court may refuse a remedy for delay or on grounds of public interest even where the act was void, and that third parties who have acted on the faith of the order may be protected. The convenient way to state it is that the order is void, but the remedy is discretionary.

Conclusion. The doctrine of ultra vires is the foundation on which every other ground of judicial review is built, because it expresses the single proposition that distinguishes public power from private power: a public authority has only the power that has been given to it, and the boundary of the grant is enforceable in a court. In its narrow sense it asks five questions, whether the parent Act is valid, whether the delegation was permissible, whether the rule or order stays within the Act, whether the right person exercised it over the right subject matter, and whether the jurisdictional facts existed, and Delhi Laws Act, Hamdard Dawakhana, Kunj Behari Lal Butail and Barium Chemicals supply the authority for each. In its procedural sense it asks whether the prescribed manner was followed, and Raza Buland Sugar and Harla show how the mandatory and directory line is drawn. In its extended sense, after Padfield and above all Anisminic, it absorbs improper purpose, irrelevant considerations, breach of natural justice and error of law, so that almost every ground of review can be expressed as an excess of power. Whether that extension is a genuine application of the doctrine or a convenient fiction is a real question in English law; in India it is largely academic, because the Constitution confers the power of review directly and does not need the fiction to support it.

Who may apply. The ordinary rule that only the person aggrieved may move the court is relaxed almost to vanishing point, for the obvious reason that a person in custody cannot come to court. A relative, a friend, or a stranger acting in the public interest may apply. Procedure is relaxed with it: a letter or postcard may be treated as a petition, and in Sunil Batra (II) v. Delhi Administration, (1980) 3 SCC 488, a letter written by a convict to a judge of the Supreme Court, complaining that a head warder had tortured another prisoner, Prem Chand, by driving a baton into his anus to extract money from his visitors, was converted into a habeas corpus proceeding. The Court held that the writ is available not only to secure release but to protect a prisoner against illegal treatment inside a lawful custody, which extends the writ well beyond its classical office.

Against whom. It lies against the State and its officers, and also against a private person who detains another, which distinguishes it from the other writs; a parent or spouse withholding a child or an adult, or an employer confining a workman, may be required to produce the person. It does not lie where the detention is under the order of a competent court after conviction, unless the order is a nullity, since the remedy against a judicial order is appeal.

Grounds. The detention falls where it is without authority of law or by an authority lacking jurisdiction; where the law authorising it is unconstitutional; where the procedural safeguards have not been observed; and where the detaining authority failed to apply its mind, acted on stale, vague or irrelevant grounds, or acted mala fide. In preventive detention the safeguards in Article 22 are the commonest ground: clause (5) requires that the grounds of detention be communicated as soon as may be and that the detenu be afforded the earliest opportunity of making a representation, and clause (4) requires reference to an Advisory Board within three months. Failure on any of these vitiates the detention regardless of the merits. In Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740, a detention order made to prevent a breach of "law and order" was quashed because the rule authorised detention only to prevent a breach of "public order", the Court describing law and order, public order and the security of the State as three concentric circles of decreasing width. In Khudiram Das v. State of West Bengal, (1975) 2 SCC 81, the Court held that even where the statute rests on the subjective satisfaction of the detaining authority, the court may examine whether the satisfaction was reached on relevant material and whether the mind was applied.

The writ's lowest and highest points should end the note. In ADM Jabalpur v. Shivkant Shukla, (1976) 2 SCC 521, the Supreme Court held by four to one that during the Emergency, the Presidential order under Article 359 having suspended the right to move any court for the enforcement of Articles 14, 21 and 22, no person had locus standi to seek habeas corpus even against a detention admittedly without authority. Khanna J. dissented, holding that the State had no power to deprive a person of life or liberty without the authority of law even in an Emergency, and he was superseded for the Chief Justiceship. The Forty Fourth Amendment, 1978, amended Article 359 so that Articles 20 and 21 can never be suspended, and Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1, expressly overruled the majority.

(b) Droit administratif

Droit administratif is the body of law, largely judge made, which in France governs the relations between the administration and the citizen, and which is applied by a separate hierarchy of administrative courts. Its two defining features are a distinct body of substantive rules different from the private law, and a distinct set of courts to apply them.

The substantive principles. The chief remedy is the recours pour excès de pouvoir, the action to annul an administrative act, and its four grounds correspond closely to the heads of review in the common law: incompétence, want of jurisdiction; vice de forme, defect of form or procedure, which includes les droits de la défense, the rights of the defence, the French analogue of natural justice; détournement de pouvoir, the use of a power for a purpose other than that for which it was conferred, which is exactly malice in law; and violation de la loi, breach of the law, including error of law and, since the Ville Nouvelle Est decision of 1971, a bilan or balance sheet review weighing the advantages of a project against its costs, which resembles proportionality. Alongside it runs the recours de plein contentieux, in which the court may award damages. The liability of the State for administrative fault is in general wider than at common law: the Blanco decision of the Tribunal des Conflits in 1873, arising from a child injured by a wagon belonging to a State tobacco factory, held that State liability is neither general nor absolute and is governed by special rules of its own, and it is from that decision that the modern subject is dated.

Conclusion. The two notes answer the same question by different routes: how does a legal system stop the administration acting unlawfully? Habeas corpus is the common law's sharpest single instrument, and the Indian courts have widened it at every point at which it could be widened, by allowing anyone to apply, by accepting a letter as a petition, by placing the burden on the detainer, by refusing to apply constructive res judicata, by reaching conditions inside a lawful custody in Sunil Batra, and by adding compensation in Rudul Sah where release had ceased to be a remedy. Its history also shows the limits of any writ: in ADM Jabalpur the writ survived while the right behind it was suspended, and it took a constitutional amendment rather than a judgment to make that impossible again. Droit administratif is the civil law's answer, an entire jurisdiction rather than a single remedy, and Dicey's dismissal of it has been disproved by its record. India has chosen the unitary structure and taken from France only the specialist forum, and the line it has drawn, in L. Chandra Kumar and again in Madras Bar Association in 2025, is that specialisation is welcome and insulation from the constitutional courts is not.

Stage one: before 1978, the classification approach

Until the late 1960s the availability of a hearing in India depended on how the function was classified. If the function was quasi judicial, natural justice applied; if it was administrative, it did not. The test came from Province of Bombay v. Khushaldas S. Advani, AIR 1950 SC 222, which required a duty to act judicially to be superadded before certiorari would lie and before natural justice would be implied, following the English decision in Nakkuda Ali v. Jayaratne, [1951] AC 66.

The consequence was arbitrary, because the classification decided the case and the classification had no principled basis. The same power, described in the same words, could be called administrative in one context and quasi judicial in another, and an authority could avoid a hearing by pointing to the label.

Stage two: Maneka Gandhi and the birth of the Indian post-decisional hearing

Maneka Gandhi v. Union of India, (1978) 1 SCC 248, is the decision from which the whole modern doctrine flows. The petitioner's passport was impounded under Section 10(3)(c) of the Passports Act, 1967, "in the interests of the general public"; no reasons were furnished, the Government declining to give them in the public interest, and no hearing was given before the order.

The Court's holding had three parts. First, that Articles 14, 19 and 21 are not watertight compartments and that a law depriving a person of personal liberty must satisfy all three, so that the "procedure established by law" in Article 21 must be right, just and fair, and not arbitrary, fanciful or oppressive. Second, that the audi alteram partem rule must be read into Section 10(3)(c), since the section did not expressly exclude it. Third, and for present purposes decisively, that the requirement of fairness may in an appropriate case be satisfied by a hearing given after the order, where immediate action is necessary.

The majority rejected that contention and laid down the governing propositions. The audi alteram partem rule is not rigid; it is flexible and may be moulded to fit the situation, but it may not be abrogated unless the statute excludes it expressly or by necessary implication. Urgency may justify replacing a pre-decisional hearing with a post-decisional one, but the urgency must be real. And the post-decisional hearing must be a real one: the authority must be prepared to reconsider the whole matter, and must have and be willing to use the power to undo what it has done. On those principles the takeover was set aside and the Government was directed to give the company a full post-decisional hearing. Chinnappa Reddy J. dissented, holding that the section by necessary implication excluded a prior hearing.

Liberty Oil Mills v. Union of India, (1984) 3 SCC 465, applied the same approach in import control, upholding a scheme in which action was taken first and a hearing followed, on the footing that the statutory context contemplated immediate action and that the later hearing was not an empty formality.

Stage five: the modern position

Three propositions now govern. First, the pre-decisional hearing is the rule, and postponement must be justified on the record by genuine urgency, frustration of purpose, or an express statutory scheme; it is not enough to assert urgency. Second, where a post-decisional hearing is permitted it must be prompt, real and effective, before a mind still open, with power to restore the position, which is Swadeshi Cotton Mills. Third, a hearing may be dispensed with entirely only under the narrow useless formality doctrine: in M.C. Mehta v. Union of India, (1999) 6 SCC 237, the Court held that the theory is an exception of a very limited nature, applicable only where on admitted or indisputable facts only one conclusion is possible in law, and in Aligarh Muslim University v. Mansoor Ali Khan, (2000) 7 SCC 529, it was applied where a rule terminated service automatically on absence beyond the permitted period.

An assessment

The honest verdict is that the post-decisional hearing is a device of necessity and not a principle of fairness. It has a genuine justification: where delay would allow the harm to occur or the mischief to be completed, the choice is not between an early hearing and a late one but between a late hearing and no effective power at all. It has three defects that no amount of doctrine removes. The authority is committed, which is K.I. Shephard. The harm may be irreversible: a management displaced, a business closed, a journey lost, cannot be restored by a later order. And the burden shifts, since before the decision the authority must justify acting and after it the individual must persuade the authority to undo what it has done.

Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405, added two things that recur constantly. The first is that fairness is required of every action, judicial, quasi judicial, administrative or quasi administrative alike. The second, and the more useful in practice, is that an order must be judged by the reasons it bears on its face and cannot be supplemented by fresh reasons in an affidavit, the Court approving Gordhandas Bhanji and observing that an order is not like old wine, becoming better as it grows older. The Court also gave "civil consequences" a deliberately wide meaning, covering not merely property and personal rights but civil liberties, material deprivation and non pecuniary loss, which is what brings so much administrative action within the rule at all.

Union of India v. Tulsiram Patel, AIR 1985 SC 1416, supplies the other side and is the authority for the exceptions. Government servants dismissed without enquiry under the second proviso to Article 311(2) challenged their dismissals. The Constitution Bench held that where that proviso genuinely applies, natural justice stands excluded by the Constitution itself, and that the content of natural justice is what good conscience requires in the given situation, nothing more and nothing less. It is the case to cite whenever an answer turns to when a hearing may be dispensed with.

Automotive Tyre Manufacturers Association v. Designated Authority, (2011) 2 SCC 258, is the counterweight. The Designated Authority conducted an anti dumping investigation on written submissions alone. The Supreme Court held that the Authority was discharging a quasi judicial function affecting rights, that it was bound to afford an oral hearing to the parties, and that its failure to do so vitiated the determination. Read together, the two cases fix the position: the duty to hear is real and is not discharged by paper alone, but the remedy for its breach is calibrated to the prejudice actually suffered.

For full marks, cover: the same ground as question 4 of Q.P. Code 311300, taken here by comparison and by limits, which is the other way to organise it. Set Article 226 against Article 32 and against Article 227, since the extent of a jurisdiction is best shown by what it can do that its neighbours cannot; then work through the five limits, since an "extent" question is only half answered by describing the power; then deal with the writs against private bodies, the territorial question, and the constitutional entrenchment of the jurisdiction.

The three jurisdictions compared

The High Court holds two distinct constitutional powers over the administration and over subordinate adjudication, and the Supreme Court holds a third, narrower one. Article 226 confers an original jurisdiction to issue directions, orders and writs; Article 227 confers a power of superintendence over all courts and tribunals; Article 32 confers on the Supreme Court a guaranteed remedy for the enforcement of fundamental rights.

Two consequences follow immediately and they define the extent of Article 226. Because it lies "for any other purpose", it reaches an ordinary legal right, which Article 32 cannot: in Calcutta Gas Co. (Proprietary) Ltd. v. State of West Bengal, AIR 1962 SC 1044, the Supreme Court held that the words enable a High Court to issue a writ for the enforcement of any legal right, provided the petitioner has a personal or individual right in the subject matter. And because it is discretionary, a High Court may refuse relief although the petitioner is right, which the Supreme Court cannot do under Article 32 where a fundamental right is infringed, as Romesh Thappar v. State of Madras, AIR 1950 SC 124, established.

The reach: against whom a writ runs

The words "any person or authority, including in appropriate cases, any Government" are the widest in the Constitution on this subject. They are not confined to the State within Article 12.

The five limits

First, alternative remedy. The rule is one of policy, convenience and discretion, not of jurisdiction, and the distinction matters. Whirlpool Corporation v. Registrar of Trade Marks, (1998) 8 SCC 1, sets out three settled exceptions: enforcement of a fundamental right; violation of the principles of natural justice; and an order or proceeding wholly without jurisdiction, or a challenge to the vires of an Act. Godrej Sara Lee Ltd. v. Excise and Taxation Officer cum Assessing Authority, decided on 1 February 2023, is the recent correction: the mere availability of an appeal or revision which the petitioner has not pursued does not oust the High Court's jurisdiction or render the petition "not maintainable", and courts must distinguish maintainability, which concerns competence, from entertainability, which is discretionary.

Second, laches. Unexplained delay may defeat a petition, because third parties may have altered their position and a stale claim may unsettle what has been settled. No period is prescribed, and the Limitation Act does not apply, so the question is always whether the delay is explained and whether relief would now be unjust.

The territorial extent

Clause (2), inserted by the Fifteenth Amendment, 1963, extended the jurisdiction to authorities outside the High Court's territories where the cause of action arises wholly or in part within them, which reversed the earlier position that the writ ran only against a person or authority within the territory. In Kusum Ingots and Alloys Ltd. v. Union of India, (2004) 6 SCC 254, the Supreme Court held that even a part of the cause of action arising within a High Court's territory confers jurisdiction, but that the court retains a discretion to refuse on the ground of forum conveniens, and that the mere fact that a legislation was passed at Delhi does not give the Delhi High Court jurisdiction over every challenge to it.

Article 227 in its own right

Article 227 is not a second writ jurisdiction, and treating it as one is the commonest error. It is a power of superintendence, exercisable over all courts and tribunals in the High Court's territories, excluding those constituted under any law relating to the Armed Forces. It is exercisable suo motu, it is both judicial and administrative in character, and under it the High Court may not merely quash but may make the order that the subordinate court ought to have made.

The entrenchment of the jurisdiction

L. Chandra Kumar v. Union of India, (1997) 3 SCC 261, is the decision that converts a wide jurisdiction into a guarantee. A seven judge Bench held that the power of judicial review vested in the High Courts under Articles 226 and 227 and in the Supreme Court under Article 32 is an integral and essential feature of the Constitution, constituting part of the basic structure; struck down Article 323A(2)(d) and Article 323B(3)(d) to the extent that they excluded that jurisdiction; and held that decisions of tribunals are subject to scrutiny before a Division Bench of the High Court within whose territorial jurisdiction the tribunal falls. The most recent application is Madras Bar Association v. Union of India, 2025 INSC 1330, decided on 19 November 2025, striking down provisions of the Tribunals Reforms Act, 2021, that reproduced verbatim provisions already invalidated, holding such re-enactment to be an impermissible legislative override, and directing the establishment of a National Tribunals Commission within four months.

For full marks, cover: the question by working through the sequence a court actually follows when a rule is challenged, which is a cleaner structure than a list of grounds and shows the examiner that you understand how the challenge is argued: is the parent Act valid; was the delegation itself permissible; is the rule within the four corners of the Act; does it offend the Constitution independently; is it arbitrary or unreasonable; was it made in the manner prescribed; and was it published. Add the controls that stand beside judicial control, and close with an assessment of the doctrine's real bite.

Step one: is the parent Act valid?

A challenge to a rule may begin one step higher. If the enabling Act is beyond the legislative competence of the enacting legislature under the Seventh Schedule, or violates a fundamental right, or offends some other constitutional limitation, the Act is void and everything made under it falls with it. No examination of the rule is then necessary. In practice this is the least common route, because most enabling Acts are unobjectionable and the complaint is about what the delegate has done with the power.

Step two: was the delegation permissible?

This is the doctrine of excessive delegation, and it is the constitutional limit on the legislature itself. The legislature must lay down the policy and the standard and may leave only the working out of details to the delegate; it may delegate, but it may not abdicate. The determination of policy is an essential legislative function and is not delegable.

Hamdard Dawakhana v. Union of India, AIR 1960 SC 554, applied the doctrine to strike down a provision. Section 3(d) of the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954, prohibited advertisements relating to the diseases listed in the section "and any other disease or condition which may be specified in the rules made under this Act". The Court held the italicised words invalid, because the Act laid down no principle or standard to guide the executive in adding to the list, and therefore conferred uncontrolled and unguided power. The contrast is Edward Mills Co. Ltd. v. State of Ajmer, AIR 1955 SC 25, where a power to add employments to a schedule of the Minimum Wages Act, 1948, was upheld because the preamble and scheme of the Act supplied the standard, namely the prevention of sweated labour in employments where wages were low.

In taxation the requirement is stricter, and Devi Das Gopal Krishnan v. State of Punjab, AIR 1967 SC 1895, holds that a power to fix the rate of tax without any maximum or guiding principle is excessive delegation, since the imposition of a tax is quintessentially a legislative act.

General Officer Commanding in Chief v. Dr. Subhash Chandra Yadav, (1988) 2 SCC 351, states the requirement: for a rule to have the effect of a statutory provision it must conform to the provisions of the statute and must come within the scope and purview of the rule making power. Kunj Behari Lal Butail v. State of H.P.*, (2000) 3 SCC 40, applies it: a rule made under the Himachal Pradesh Ceiling on Land Holdings Act, 1972, restricted an exemption for land under tea plantations which the Act itself had granted. The Supreme Court struck the rule down, holding that a general power to make rules for carrying out the purposes of an Act does not enable the delegate to make a rule which travels beyond the scope of the enactment or is inconsistent with any provision of it.

Three further defects belong here. A rule made by an authority other than the one on whom the power was conferred, unless sub-delegation is authorised. A rule that is retrospective where the Act does not expressly or by necessary implication permit retrospectivity, which Hukam Chand v. Union of India, AIR 1972 SC 2427, forbids, since a delegate has no inherent power to legislate for the past. And a rule that excludes natural justice where the Act does not, since the principles are read into a statutory power unless displaced.

Step five: is the rule arbitrary or unreasonable?

Subordinate legislation may be struck down for unreasonableness in a way a statute historically could not. Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, (1985) 1 SCC 641, holds that subordinate legislation does not enjoy the same degree of immunity as an Act of Parliament, and may be questioned on the ground that it is contrary to the statute, contrary to other statutory provisions, or so arbitrary that it cannot be said to be in conformity with the statute or to be reasonable. The older source is Kruse v. Johnson, [1898] 2 QB 91, in which Lord Russell of Killowen held that a byelaw made by an elected body will be benevolently interpreted but will be struck down if it is partial and unequal in its operation between classes, manifestly unjust, made in bad faith, or involves such oppressive or gratuitous interference with rights as could find no justification in the minds of reasonable men. Since Shayara Bano v. Union of India, (2017) 9 SCC 1, confirmed manifest arbitrariness as a ground for invalidating even primary legislation, the position of a rule is a fortiori.

Step seven: was it published?

Harla v. State of Rajasthan, AIR 1951 SC 467, holds that natural justice requires a law to be promulgated or published before it can be operative; a resolution of the Council of Ministers of the former State of Jaipur enacting an Opium Act had never been published, and a conviction under it was set aside. State of Maharashtra v. M.H. George, AIR 1965 SC 722, holds that publication in the official Gazette is sufficient and that actual knowledge is unnecessary; the accused had left Zurich for Manila with gold, and the notification restricting transit through India had been published in the Gazette that day. Together they fix the rule: publication in the prescribed manner is essential, actual knowledge is not.

An assessment

Two criticisms should be made. The first is that the doctrine of excessive delegation, however impressive in Delhi Laws Act, has produced remarkably few striking downs since Hamdard Dawakhana, because courts have generally been willing to find a policy somewhere in the preamble, the long title or the scheme of the Act; the requirement of a standard has become easy to satisfy. The second is that parliamentary control is largely formal: thousands of instruments are laid each year, the committee can examine only a fraction, and a motion to annul is almost never carried. The effective control is therefore judicial, exercised at the instance of a person with the resources to bring a challenge, which means that a rule affecting people who cannot litigate is in practice immune.

For full marks, cover: for the first note, why the distinction matters at all, the three categories of question, jurisdictional facts, the "no evidence" rule, and why the distinction has been eroded; for the exclusionary clause, its forms, the constitutional answer to it in India, Anisminic, and the treatment of a constitutional ouster in Kihoto Hollohan; for alternative remedies, that the rule is discretionary, the Whirlpool exceptions, the 2023 correction in Godrej Sara Lee, and the disciplinary context.

(a) The law and fact distinction

The distinction matters because the intensity of judicial control depends on it. A supervisory court corrects errors of law; it does not, as a rule, correct errors of fact. So whether a mistake is characterised as one of law or one of fact often decides the case, and the characterisation is not always obvious.

Syed Yakoob v. K.S. Radhakrishnan, AIR 1964 SC 477, is the leading Indian statement. Reviewing the grant of a stage carriage permit, the Supreme Court held that certiorari lies to correct errors of jurisdiction and breaches of natural justice, and to correct an error of law apparent on the face of the record, but that a finding of fact, however erroneous, cannot be interfered with, because the jurisdiction is supervisory and not appellate. The Court added that the error of law must be self evident and must not require an elaborate argument to establish, and that where two views are possible the view taken by the tribunal is not an error apparent. In Hari Vishnu Kamath v. Ahmad Ishaque*, AIR 1955 SC 233, the Court had already said that no exhaustive definition of an error apparent on the face of the record is possible.

Two important qualifications erode the distinction.

Since Anisminic Ltd. v. Foreign Compensation Commission, [1969] 2 AC 147, the distinction has narrowed further, because a tribunal that asks itself the wrong question or takes into account what it has no right to consider makes a decision that is a nullity; and since almost any material error can be described in those terms, the old category of an error of law within jurisdiction has largely disappeared.

(b) Exclusionary clause

An exclusionary or ouster clause is a statutory provision which purports to prevent a court from examining an administrative or quasi judicial decision. It comes in three strengths: a finality clause ("the decision shall be final"); an ouster clause ("shall not be called in question in any court"); and a conclusive evidence clause ("the certificate shall be conclusive evidence of the matters stated"), which operates on the law of evidence rather than on jurisdiction but has a similar effect.

In India the answer is more direct, because judicial review is constitutionally conferred. Articles 32, 226 and 227 confer jurisdiction, and an ordinary statute cannot take away what the Constitution has given. Beyond that, L. Chandra Kumar v. Union of India, (1997) 3 SCC 261, holds that this power of review is part of the basic structure, so that even a constitutional amendment cannot exclude it; the Court struck down Article 323A(2)(d) and Article 323B(3)(d) so far as they excluded the jurisdiction of the High Courts and the Supreme Court over tribunal decisions.

Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651, shows the technique applied to an ouster clause in the Constitution itself. Paragraph 6(1) of the Tenth Schedule provides that the decision of the Speaker or Chairman on a question of disqualification on the ground of defection shall be final, and paragraph 7 purported to bar the jurisdiction of all courts. The Supreme Court held paragraph 7 invalid for want of ratification by the States under the proviso to Article 368(2), and held that the Speaker acts as a tribunal, so that the finality clause does not exclude judicial review on the grounds of mala fides, perversity, violation of a constitutional mandate and violation of natural justice, though the Court will not interfere at an interlocutory stage before the decision is made.

The rule is one of policy, convenience and discretion, not of jurisdiction, and the distinction is the point of the note. The existence of a remedy does not make the petition incompetent; it gives the court a reason to decline it. Under Article 32 the rule has still less force, because the right to move the Supreme Court is itself a fundamental right, and Romesh Thappar v. State of Madras, AIR 1950 SC 124, held that the Court cannot decline to entertain a petition disclosing infringement of a fundamental right merely because another remedy exists.

Whirlpool Corporation v. Registrar of Trade Marks, (1998) 8 SCC 1, sets out the settled exceptions, in which the High Court will entertain the petition despite an alternative remedy: enforcement of a fundamental right; violation of the principles of natural justice; and an order or proceeding wholly without jurisdiction, or a challenge to the vires of the Act. The cases add a fourth: where the alternative remedy is not efficacious, being illusory, unduly burdensome, subject to a heavy pre-deposit, or available only to the very authority complained against.

In service and disciplinary matters the courts insist more firmly on the departmental appeal, both because the appellate authority may cure the defect and because the record needs to be complete. But that argument has a limit, and Krishnadatt Awasthy v. State of M.P., 2025 INSC 126, decided on 29 January 2025, supplies it: a defect at the initial stage, in particular a denial of hearing, cannot generally be cured at the appellate stage, because an appellate authority reviewing a decision taken without hearing has no properly reasoned decision before it. So the existence of an appeal is not an answer to a complaint that the original decision was made without hearing the person affected. The appeal succeeded and the appointments stood, the Court setting aside the ex parte cancellation. The case had reached three judges because a two judge Bench split on 4 April 2024, Maheshwari J. holding the selection vitiated by bias and Vishwanathan J. holding the cancellation vitiated by the denial of hearing, so it is a rare instance of the two limbs of natural justice pulling against each other, with the fair hearing limb prevailing.

For full marks, cover: for legitimate expectation, its definition, the procedural and substantive division, how it arises, the four Indian decisions that fix its scope, its distinction from promissory estoppel, the grounds on which it is defeated, and the 2025 constitutional limit; for public interest litigation, that it is ordinary review with standing relaxed, the three cases that built it, what it changed in remedies, the abuses, and the safeguards in Balwant Singh Chauffal.

(a) Legitimate expectation

A legitimate expectation is an expectation of a benefit, or of being heard before a benefit is withdrawn, which arises from an express promise, a consistent past practice or a declared policy of a public authority, and which the law protects although the person has no enforceable right. It lies between a legal right and a mere hope, and its function is to control arbitrariness in the exercise of discretion. In India it draws its constitutional force from Article 14 and the duty of every public authority to act fairly.

Union of India v. Hindustan Development Corporation, (1993) 3 SCC 499, is the leading Indian exposition. The Railway Board changed its policy for procuring cast steel bogies, allocating part of the requirement to smaller manufacturers on a different rate, and the established suppliers complained of a legitimate expectation of the earlier allocation. The Court refused relief but stated the doctrine fully: an expectation may arise from an express promise or from an established practice; it confers locus standi and is a ground on which a decision may be attacked as arbitrary; but it is not a right in the conventional sense, mere disappointment does not found a claim, and the doctrine yields to an overriding public interest and to a bona fide change of policy. The Court warned that the doctrine must not be pressed so far as to fetter the power of the administration to change its policy in the public interest.

Punjab Communications Ltd. v. Union of India, (1999) 4 SCC 727, adds the point about change of policy. The Court held that a change in policy can defeat a substantive legitimate expectation provided the change is not arbitrary or unreasonable, and that the court's role is to decide whether the change was made bona fide and on relevant material, not whether it was the wisest course.

Its distinction from promissory estoppel should be stated because examiners test it. Promissory estoppel, received into public law in Motilal Padampat Sugar Mills v. State of U.P., (1979) 2 SCC 409, where an assurance of a three year sales tax exemption acted upon by the setting up of a vanaspati factory was held binding on the Government notwithstanding the absence of consideration or compliance with Article 299, requires a clear promise and detrimental reliance. Legitimate expectation requires neither: a settled practice suffices and no change of position need be shown. The two overlap but they are not the same, and the Supreme Court has emphasised that legitimate expectation is a creature of public law and cannot govern private dealings, where promissory estoppel holds the field.

Its origin lay in a practical diagnosis. Fundamental rights belonged to everyone, but the remedy required a lawyer, a fee and a petition, which excluded exactly those whose rights were most often violated. The relaxation of standing was the device by which the remedy was made to follow the right.

S.P. Gupta v. Union of India, 1981 Supp SCC 87, contains the classical statement: where a legal wrong or injury is caused to a person or to a determinate class of persons who by reason of poverty, helplessness or disability or socially or economically disadvantaged position are unable to approach the court, any member of the public acting bona fide* may move the court for redress. The Court also accepted that a letter addressed to it may be treated as a petition, which is the epistolary jurisdiction.

People's Union for Democratic Rights v. Union of India, (1982) 3 SCC 235, the Asiad workers case, shows the technique: a letter about the conditions of workmen building the venues for the 1982 Asian Games was treated as a petition, and the Court held that payment below the minimum wage amounts to forced labour under Article 23, converting a labour law complaint into a fundamental rights case so that Article 32 was available.

The abuses are real: petitions filed for publicity, for private gain, at the instance of a business rival, or for political motives, and petitions asking the court to decide policy questions for which there is no judicially manageable standard. The Court's own answer is State of Uttaranchal v. Balwant Singh Chauffal, (2010) 3 SCC 402, which directed courts to encourage genuine PIL and discourage the rest, to verify the credentials of the petitioner, to satisfy themselves prima facie about the correctness of the contents, to be satisfied that substantial public interest is involved, to give priority to matters of larger public interest, and to impose exemplary costs on petitions filed for extraneous considerations, and directed the High Courts to frame rules accordingly.

Conclusion. The two notes describe the two halves of fairness in the modern administrative process. Legitimate expectation tells an authority when it must treat a person in a particular way although he has no legal right to it, and Indian law has settled its shape carefully: it arises from a promise or a practice, it is enforced readily in its procedural form as Navjyoti shows and sparingly in its substantive form, it must be weighed against a larger public interest under Kamdhenu, it yields to a bona fide change of policy under Hindustan Development Corporation and Punjab Communications, and after K. Purushottam Reddy in 2025 it can never be used against the constitutional arrangement itself. Public interest litigation tells us who may come to court to enforce those standards, and by relaxing standing in S.P. Gupta, accepting letters as petitions, appointing commissioners in Bandhua Mukti Morcha, and forging new remedies in M.C. Mehta, it made judicial review available to people for whom it had previously been theoretical. Both doctrines are judge made, both extend the reach of review beyond what the text strictly requires, and both have therefore had to be given limits by the same courts that created them, which is why Kamdhenu and Balwant Singh Chauffal belong in the answer as much as Navjyoti and S.P. Gupta.