February 13

Santanu Sabhapandit: Judicial Review of Administrative Action ‐ Beyond the long shadow of Fundamental Rights

There are strong linkages between administrative law and constitutional law in India, which are evident from the provisions of the Constitution and judicial interpretation of those provisions. The Constitution is the source of not only the jurisdiction of the courts to conduct judicial review (See Article 32 and Article 226) but also some of the principles of reviewing administrative action, as the judiciary has traced certain administrative law principles to constitutional provisions (See E.P. Royappa v. State of Tamil Nadu & Another 1974 SCR (2) 348). Beyond the express Constitutional provisions on judicial review, however, Indian administrative law is primarily a judge made law whose principles are to be discerned through a process of refinement of judicial opinion expressed in a large number of judicial pronouncements. Although the Constitutional provisions define its broad contours, the scope and grounds of judicial review and the scope of remedies under judicial review are matters of inference from judicial pronouncements.

Enforcement of fundamental rights is one of the major objectives of judicial review, which is explicitly referred to in Article 32 and Article 226 of the Constitution. Naturally, fundamental rights have had crucial influence over the judiciary’s interpretation of the scope of judicial review. In cases like Sukhdev Singh and Ors. vs. Bhagatram Sardar Singh 1975 SCR (3) 619 (“Sukhdev Singh”), Ramana Dayaram Shetty vs. International Airport Authority of India and Ors 1979 SCR (3) 1014, and Ajay Hasia vs. Khalid Mujib Sehravardi 1981 SCR (2) 79 (“Ajay Hasia“), the objective of protecting fundamental rights have led the judiciary to expand the scope of judicial review and identify parameters to determine amenability to judicial review. These and later cases that relied on the expansive approach have shaped how jurisdictional criteria for judicial review is perceived in India.

The fundamental right based expansive approach to the scope of judicial review has provided some clear criteria in an otherwise complex area of determining who may be amenable to judicial review. However, there are views from within the judiciary that emphasize the need for caution in applying the approach (See Justice Shetty’s observations in Chander Mohan Khanna vs. The National Council of Educational Research & Training 1991 SCR Supl. (1) 165; Justice Lahoti’s observations in Pradeep Kumar Biswas vs. Indian Institute of Chemical Biology and Others Civil Appeal 992/2002). The reliance of the approach on what may be considered as a ‘State’ under Article 12, or, in other words, on the ‘nature of entity’, leads to certain spinoff issues such as once an entity is considered a ‘State’, the entity becomes vulnerable to judicial review actions for many of its decisions. In this regard, Article 226 may provide an alternative framework for determining amenability in reference to the nature of the impugned decision.

The potential of Article 226 to afford a wide scope of judicial review has been recognized by the judiciary (See Dwarkanath vs. ITO 1965 3 SCR 536). At the very least, the scope of judicial review Article 226 goes beyond enforcement of fundamental rights to include ‘any other purpose’. To the extent it’s scope extends beyond the objective of enforcement of fundamental rights, how far has the judiciary articulated the jurisdictional criteria under Article 226 and the parameters that determine the fulfilment of such criteria? To what extent do fundamental rights based criteria developed by the SCI influence the criteria applied under Article 226?

A review of relevant cases suggests that (See [upcoming paper]) in the context of jurisdictional criteria, not only there is a lack of clarity and consistency in the application of such criteria, but also there seems to be less than adequate recognition of the potential scope of judicial review beyond the boundaries of fundamental rights. While cases like Anadi Mukta Sadguru vs. V.R. Rudani 1989 SCR (2) 697 and Binny Ltd. vs. V. Sadasivan Civil Appeal No. 1976/1998, clearly establish a framework of jurisdictional criteria under Article 226 by emphasising a ‘nature of duty’ approach, subsequent cases do not indicate consistent application of such criteria or approach. Compared to the clarity with which the judiciary has articulated the principles and jurisdictional criteria in Sukhdev Singh or Ajay Hasia, the criteria and the relevant principles for attaining the potentially wide scope of judicial review under Article 226 remains less developed. On the other hand, more often than not, issues of amenability in cases under Article 226 are determined by reference to jurisdictional criteria that were developed primarily in reference to protection of fundamental rights (See Mysore Paper Mills Limited vs. Mysore Paper Mills Officers Association Civil Appeal 5247-5248/1998, Virendra Kumar Srivastava vs. U P Rajya Karmachari Kalyan Nigam Civil Appeal 5047/2000, SS Rana vs. Registrar, Co‐op Societies Civil Appeal 6052/2004). Reliance on such criteria may be essential where infringement of a fundamental right is alleged. However, where infringement of administrative law principles or other legal rights are alleged, fundamental rights may have partial or no relevance to a case under Article 226. Applying fundamental rights based jurisdictional criteria to such cases may not be justified and may lead to erroneous conclusions. In any case, moulding the issue of amenability in reference to fundamental rights, where fundamental rights are not relevant, consumes litigation time and diverts focus from a ‘nature of duty’ based analysis of the impugned action.

The potentially wide scope of judicial review under Article 226 may not only enable the courts to avoid certain complexities associated with fundamental right based jurisdictional criteria, but it may enable them to extend the reach of judicial review to entities and decisions that may not be covered by further expansion to the definition of ‘State’. It is hoped that better clarity will be achieved through further refinement and articulation of the relevant principles for jurisdictional criteria under Article 226. That process is likely to be fraught with complexities given the inherent difficulties of drawing a precise distinction between public law and private law. But the efficiency of the process is likely to be enhanced by the recognition that there is limited relevance of fundamental rights for the jurisdictional criteria under Article 226.


Santanu Sabhapandit is a PhD candidate in comparative Administrative Law in Monash University, Melbourne. He holds a LLM degree jointly offered by Erasmus University, Rotterdam and Hamburg University, Hamburg and a LLB degree from Delhi University, Delhi. He worked as an in-house counsel for ten years prior to commencing doctoral studies.