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. The Constitution is the source not only of the jurisdiction of the courts to conduct judicial review (See Article 32 and Article 226) but also of 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). Beyond the express constitutional provisions on judicial review, however, Indian administrative law is primarily a judge made law. 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 (rights-based judicial review). 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, Ramana Dayaram Shetty vs. International Airport Authority of India and Ors, and Ajay Hasia vs. Khalid Mujib Sehravardi 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 an expansive approach to the scope of judicial review have shaped how amenability 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 issue 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, Justice Lahoti’s observations in Pradeep Kumar Biswas vs. Indian Institute of Chemical Biology and Others). The reliance of the approach on what may be considered as a ‘State’ under Article 12, and in turn, on parameters indicating some form of government involvement for determining amenability to judicial review, leads to certain spinoff issues. Once an entity is considered a ‘State’, it becomes vulnerable to judicial review actions for potentially any of its actions, irrespective of the nature of such actions. In this regard, Article 226 may provide an alternative framework for determining amenability in reference to the nature of the impugned action.

The potential of Article 226 to afford a wide scope of judicial review has been recognized by the judiciary (See Dwarkanath vs. ITO). The scope of judicial review under Article 226 goes beyond the enforcement of fundamental rights to include review for ‘any other purpose’. To the extent the scope of judicial review extends beyond or is independent of the objective of enforcement of fundamental rights, the amenability criteria applicable to rights-based judicial review have limited relevance for amenability to judicial review under Article 226. In this regard, it is interesting to look at the influence of fundamental rights based criteria developed by the judiciary on the amenability criteria applied under Article 226.

A review of relevant cases (See here) suggests that not only there is a lack of clarity and consistency in the application of amenability criteria under Article 226, but also there seems to be a 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 and Binny Ltd. vs. V. Sadasivan seek to establish a framework of determining amenability to judicial review under Article 226 by emphasising a ‘nature of duty’ approach, subsequent cases do not indicate consistent application of such approach. Compared to the judiciary’s articulation of the amenability criteria for rights-based judicial review and related principles in Sukhdev Singh or Ajay Hasia, the criteria or principles for attaining the potentially wide scope of judicial review under Article 226 remains less developed. More often than not, issues of amenability in cases under Article 226 are determined by reference to amenability criteria that were developed primarily for rights-based judicial review (See Mysore Paper Mills Limited vs. Mysore Paper Mills Officers Association, Virendra Kumar Srivastava vs. U P Rajya Karmachari Kalyan Nigam, SS Rana vs. Registrar, Co-op Societies). Reliance on such criteria may be essential where infringement of a fundamental right is alleged. However, where infringement of an administrative law principle is alleged, fundamental rights may have little or no relevance to a case under Article 226. Applying amenability criteria for rights-based judicial review in such cases may not be justified and may lead to erroneous conclusions. Moulding the issue of amenability in reference to fundamental rights where fundamental rights have little relevance, 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 rights-based judicial review, but it may expand the reach of judicial review to entities and decisions without stretching the definition of ‘State’ any further. It is hoped that better clarity will be achieved through further refinement of the relevant principles for amenability to judicial review 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 amenability 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.