April 10

Farrah Ahmed and Swati Jhaveri: Reclaiming Indian Administrative Law

This post argues that constitutional law has largely eclipsed common law judicial review of administrative action in India and it argues that this development has diminished the efficacy of common law judicial review as a means of addressing administrative failures.

Article 14 of the Indian Constitution guarantees to everyone within India a ‘Fundamental Right’ to equality before law and equal protection of the law. In EP Royappa v State of Tamil Nadu, this right to equality was interpreted to include protections from arbitrary state action. According to the Supreme Court, ‘equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch’. It followed, according to the Court, that the constitutional protection of equality includes protection against arbitrary state action.

While this reasoning has been criticised, after Royappa, anyone wanting to challenge administrative action in India had an avenue to do so in addition to traditional common law grounds: constitutional judicial review by way of writ petition to the High Court or Supreme Court. A wide range of non-statutory bodies and decisions are subject to such review.

The ‘arbitrariness doctrine’ has been strongly criticised for a number of reasons. Some question its legitimacy and legal basis. There is also a fair degree of agreement that cases involving the arbitrariness doctrine provide little guidance on what qualifies as arbitrary state action.

The problems with the arbitrariness doctrine can be seen through a well-known case involving allegedly arbitrary executive action. In Ajay Hasia v Khalid Mujib Sehravardi, the petitioners argued that the admissions process to a University course was arbitrary because (a) it assigned a very high weight to performance in an oral interview, and (b) the questions at the oral interview (which only lasted a few minutes) were not relevant to admission to the course.

The Court referred to the admission practices for recruitment to government services, and judicial comments on the appropriate weight to be attributed to interviews, and concluded,

having regard to the drawbacks and deficiencies in the oral interview test and the conditions prevailing in the country, particularly when there is deterioration in moral values and corruption and nepotism are very much on the increase, allocation of a high percentage of marks for the oral interview as compared to the marks allocated for the written test, cannot be accepted by the Court as free from the vice of arbitrariness.

Once the Court accepted that the test lasted 2–3 minutes and comprised irrelevant questions, it simply concluded that ‘the oral interview test must be held to be vitiated and the selection made on the basis of such test must be held to be arbitrary’.

This case illustrates how Article 14 has overshadowed administrative law grounds of review. In many Article 14 cases these grounds are not mentioned at all, even though they are highly relevant. The matter is instead decided on the basis of Article 14, without any explicit connection being made between Article 14 jurisprudence and common law grounds of review (even though these grounds are recognised in India).

Despite the availability of review on common law grounds, it has been so overshadowed by Article 14 that it is overlooked even by careful commentators (and, it seems, often by courts and counsel as well). The eclipse of administrative law leads to administrators receiving insufficient guidance on their legal duties and to inadequate access to justice.

The Ajay Hasia case discussed earlier demonstrates the lack of judicial guidance about what arbitrariness is, and how it is to be avoided. While the Court was concerned to offer guidance to the administrators in this particular case (suggesting that oral interviews should not be weighted at more than 15 per cent), it offered no test or criteria for identifying arbitrary action. The explanation for why the respondents’ actions were arbitrary were very closely tied to the facts.

This lack of guidance was acknowledged by the Supreme Court in Kumari Shrilekha Vidyarthi v State of UP:

The meaning and true import of arbitrariness is more easily visualized than precisely stated or defined. The question, whether an impugned act is arbitrary or not, is ultimately to be answered on the facts and in the circumstances of a given case. (emphasis added)

The sidelining of administrative law appears to be associated with a lack of judicial guidance to administrators about what they did wrong — what generalisable norm they contravened, and what they can do to avoid unlawful action in the future.

Moreover, when constitutional law eclipses administrative law, nudging applicants to use constitutional law to challenge administrative action, this has significant implications for access to justice. Challenges based on breaches of fundamental rights proceed by way of writ petition to the High Courts or Supreme Courts. These constitutional courts are more expensive and difficult to access. Forcing more applicants to start their legal processes at that high level exacerbates India’s massive problems with delays in litigation.

The sidelining of administrative law also contributes to a widespread dichotomic view of the Indian judiciary, recently described by Anuj Bhuwania: the ‘higher judiciary is often viewed as the panacea for the various endemic social and political problems that plague India’; the lower judiciary, meanwhile, is ‘purely pathological — inefficient, corrupt’. This view naturally leads to very low confidence in the lower judiciary amongst both the profession and the general public. Lower courts are, on this view, are meant to be avoided; they are not fora in which final resolution can be sought.

No doubt there are genuine concerns about the quality of adjudication in the lower courts; the view is not pure caricature. There is also reason to suspect that these problems caused administrative law to be sidelined in favour of constitutional law to begin with. But the path we are on leads to an unmanageably top-heavy case load. The need for (better functioning) lower courts to bear more of that load — including cases involving administrative wrongs — is clear.

Constitutional law jurisprudence in India — particularly the expansive interpretation of fundamental rights — has obscured the significance, and distinctive nature, of administrative law norms. In many cases, courts fail to recognise or respond to breaches of administrative law norms. Administrative law is not alone. The complaints raised here are echoed in assessments on Indian private law: Shyamkrishna Balaganesh for instance concludes that the Indian Supreme Court’s ‘fusion of constitutional law and tort law has successfully cabined the independent efficacy, normativity, and analytical basis of equivalent private law claims in Indian lower courts’. These complaints paint a picture of non-constitutional areas of Indian law withering in the shadow of constitutional jurisprudence.

Farrah Ahmed is an Associate Professor at Melbourne Law School, University of Melbourne
Swati Jhaveri is an Assistant Professor at the Faculty of Law, National University of Singapore