001 2005 Administrative Law
001 2005 Administrative Law
001 2005 Administrative Law
ADMINISTRATIVE LAW
I. P. Massey*
I INTRODUCTION
judicial action of the administration has become blurred and is being gradually
obliterated, yet difference still remains. Reiterating its earlier decisions,2 the
Supreme Court held that the classification of an act as quasi-judicial or
administrative depends on the facts and circumstances of each case. But
generally speaking if there is a contest between two contending parties and a
statutory authority is to adjudicate upon the competing contentions, that action
would be quasi-judicial. Elaborating the law further,3 the court identified
three characteristics of quasi-judicial action: (i) it is in substance a
determination upon investigation of a question by the application of an
objective standard to facts found in the light of pre-existing rules; (ii) it
declares rights or imposes upon parties obligation affecting their civil rights;
and (iii) that the investigation is subject to certain procedural attributes
contemplating an opportunity of presenting its case to the authority,
ascertainment of facts and if the dispute be on a question of law on the
presentation of legal arguments, and a decision resulting in the disposal of the
matter on findings on those questions of law and fact. Applying the above test,
the apex court concluded in Manju Verma (Dr.) v. State of U.P.* that the
power exercised by the Chief Justice of the Allahabad High Court under para
14 of the United Provinces High Courts (Amalgamation) Order, 1948 to
transfer a writ petition from Lucknow bench to Allahabad bench in
administrative capacity is quasi-judicial power subject to review by the apex
court. The court opined that the chief justice could not have allowed the plea
without hearing the affected party and without determining on objective
criteria and upon investigation whether the case is transferable and should be
transferred. The decision of the chief justice thus would have a direct bearing
on the right of the appellant to choose "forum convenience". Hence, the action
is quasi-judicial subject to review by the higher forum.
2 Engineering Mazdoor Sabha v. UOI; AIR 1963 SC 874 and Jaswant Sugar Mills v.
Lakshmi Chand, (2002) 5 SCC 605.
3 Manju Verma (Dr.) v. Stale of LLP., (2005) 1 SCC 73.
4 Ibid.
5 (2005) 2 SCC 334.
high court was further of the opinion that even if there was a retrospective
amendment it was authorized by the parent Act. Agreeing with the high court
the apex court further amplified that in order to determine the constitutionality
of the notification relevance of the background in which notification was
issued can be taken into consideration and therefore, appellant is entitled to
the sales tax deferment only to the extent it was necessary to take it out of the
'sickness' i.e. on rehabilitation and any further deferment would be beyond the
powers of the government under section 17 A of the T.N. General Sales Tax
Act, 1959.
Moving in the same direction, the Supreme Court further laid down that
while determining the constitutionality of delegated legislation, which is an
administrative necessity, no straitjacket approach is desirable and the intensity
of review in public law will depend on the subject matter in each individual
case. The court emphasized that there is difference in approach between the
traditional grounds of review of delegated legislation and proportionality
approach. It is important that in cases involving serious violation of public
interest proportionality approach may produce better results. Thus, in cases
involving constitutionality of delegated legislation, 'context' has become an
important factor.8 Food Corporation of India v. Bhanu Lodh,9 provided an
opportunity to court to lay down the new principle of "proportionality" and
"context" of public law review while determining the constitutionality of
delegated legislation. In this case, section 6(2) of the Food Corporation Act,
1964 empowered the central government to issue 'policy instructions' to the
board of directors of the corporation. In exercise of its powers the central
government issued policy instructions regarding recruitment policy and service
conditions. However, after receiving several complaints regarding
irregularities in appointments by the Food Corporation, the government later
on issued instructions and declared appointments already made as null and
void. The question before the court was whether these instructions are within
the power delegated to the government under the Act and hence constitutional.
Upholding the constitutionality of policy instructions of the central
government the court opined that the 'questions of policy' could not only be
with regard to the organization, management and functions, but also with
regard to its 'employment policy' which in the long run may affect the interest
of the consumers and producers for whom Food Corporation of India is
established.
IV CONSTITUENCY OF PUBLIC REVIEW
Reach of public law review is directly proportionate to the quality of
administrative action. In a very intensely contested case 10 where the stakes
were very high, main question for decision before the constitution bench of the
apex court was whether the Board of Control for Cricket in India (BCCI), a
society registered under the Societies Registration Act, 1860 and recognized
by the government to promote the game of cricket is 'state' within the
expression 'other authorities' under article 12 of the Constitution and hence,
subject to the writ jurisdiction of the court? By a majority of 3:2, the apex
court held that BCCI is not 'state' and hence beyond the jurisdiction of the
court.
After analyzing the entire case law on the point, the majority of court
opined that the intention of the Constitution framers in incorporating article
12 "was to treat such authority which has got certain powers to make laws,
rules and regulations to be included in the term 'other authorities' as presently
incorporated in article 12 of the Constitution. The court pointed out that the
distinction to be noted between Sukhdev Singhu and Sabhajit Tewaryu is
that in the former the Supreme Court held that bodies which are creatures of
statute having important state functions and where state has passive control of
the activities of those bodies would be 'state* for the purpose of article 12;
while in Sabhajit Tewaryn the court held that a body which was registered
under a statute and not performing important state functions and not
functioning under the pervasive control of the government would not be a part
of the 'state' for the purpose of article 12 of the Constitution. Facts established
in this case showed that the board is not a creature of the statute; no part of
the share capital is held by the government; there is no state control; board
enjoys monopoly status in the field of cricket but such status is not state
conferred or state protected; and the board is autonomous and is not created
by transfer of a government owned corporation. Keeping these facts in view,
the apex court came to the conclusion that BCCI is not state within the
meaning of the term 'other authorities' in article 12 of the Constitution.
On a mere theoretical ground the court opined that the Constitution is a
living organism and it is the duty of the court to interpret the same to fulfil the
needs and aspirations of the people, depending on the needs of the times.
Today, the state is distancing itself from commercial activities and
concentrating on governance. Therefore, there seems to be no need to further
expand the scope of 'other authorities' under article 12 by judicial
interpretation. The court concluded, "It should be borne in mind that in a
democracy there is a dividing line between a state enterprise and a non-state
enterprise, which is distinct and the judiciary should not be an instrument to
erase the said dividing line unless of course, the circumstances of day require
it to do so." 14
Minority in this case emphasized on functional and purposive approach to
resolve the issue. According to the minority, besides 'agency' and
'instrumentality test' following further tests may be followed: when the body
acts as a public authority and has public duty to perform; when it is bound to
Right to notice
Moving in the same direction the apex court further amplified that right
to notice as a part of audi atteram partem rule cannot be claimed in a routine
manner unless some prejudice is shown.19 The court was of the view that it is
not necessary for the administrative authority to give notice and hearing to a
party before a technical opinion submitted by the assessee is sent to the expert
for comments. If adjudicating authority relies on the report of such expert,
then certainly it must be brought to the notice of the other party, but if the
report is not relied upon by the authority then non-communication of the
report to the party, does not violate the principles of natural justice.
Order simpliciter
It has now been firmly established in administrative law that unless law
provides otherwise, principles of natural justice shall not apply where an
administrative order passed is simpliciter and is not punitive in nature.
Applying the same principle in Registrar, High Court of Gujarat v. C.G.
Sharma20 the Supreme Court came to the conclusion that the termination of
service of a probationer by the high court after perusing the confidential
reports and other relevant vigilance files and coming to the conclusion that
overall performance of the judicial officer is unsatisfactory recommended the
termination of service of the judicial officer to the state government in public
interest is not punitive or stigmatic but is simpliciter hence, no opportunity of
notice and hearing need be given as the action is based purely on subjective
satisfaction.
Report of enquiry
An important question of law agitated in Div. Manager, Plantation Div.
Andaman and Nicobar Island v. Munnu Barick2] was whether non-supply of
enquiry report to a workman before final decision is taken by the disciplinary
authority violates the principles of natural justice simpliciter0 Pointing to the
law already laid down in Karunakar22 the apex court emphasised 'prejudice
doctrine*, which makes it obligatory on the part of the workman to show that
he had been prejudiced by reason of non-supply of enquiry report. Reiterating
its earlier stand, the apex cqurt repeated that the principles of natural justice
cannot be put in a straitjacket formula. It must be viewed with flexibility. In
a given case where deviation takes place as regards compliance with the
principles of natural justice, the court may insist upon the proof of prejudice
before setting aside the impugned order.
Post-decisional hearing
The concept of post-decisional hearing has been developed to maintain a
balance between administrative efficiency and fairness to the individual. In the
interest of fairness, the court held that opportunity of being heard immediately
after an emergent action would satisfy the mandate of natural justice. 23
However, doubts were expressed on the validity of post-decisional hearing
when pre-decisional hearing is mandated by law.24 In a later decision the court
clarified that in situations where pre-decisional hearing is mandated by law,
pre-decisional hearing is necessary, though not an elaborate one, even in
emergent situations if the action involves grave consequences relating to
fundamental freedoms. 25 In a recent decision 26 the apex court further
emphasised that in judging the legal validity of post-decisional hearing legal
formulations cannot be divorced from the fact situation of the case, as the
purpose of natural justice is to prohibit accidents in administrative justice. In
this case personal hearing had been granted by the appellate authority, though
not statutorily prescribed before confirming the dismissal order of the
delinquent officer of the bank. Therefore, in the absence of any specific
prejudice shown by the officer, the court came to the conclusion that in this
given situation post-decisional hearing can obliterate the procedural deficiency
of the pre-decisional hearing. In the instant case, the respondent employee did
not raise any ground relating to the violation of the principles of natural justice
either in the memorandum of appeal or at the time of personal hearing before
the appellate authority. Additionally, there was no material placed by the
employee to show how he had been prejudiced. Moreover, in the appeal
before the appellate authority findings of the enquiry officer and disciplinary
authority had been challenged. Under these circumstances question of any
prejudice did not arise. On the basis of these specific facts, the court came to
the conclusion that the delinquent officer had the opportunity to meet the stand
of the bank, therefore, there was no violation of the principles of natural
justice.
without any notice and hearing. Standing order had authorized the authority
to dismiss any employee, in exceptional situation, after recording reasons. A
single judge of the high court granted ex parte interim relief which was later
on denied by the division bench, hence, special leave petition before the
Supreme Court. A fresh writ petition under article 32 was also filed in which
constitutional validity of standing order 20(vi) was also challenged as
violative of articles 14 and 19 being unreasonable, arbitrary and irrational. In
view of the fact that there were two conflicting decisions of the Supreme Court
on the point, matter was decided by a larger bench. In Workmen v. Hindustan
Steel Limited,2* the court had declared a similar standing order as
unconstitutional violating articles 14 and 19 of the Constitution. However, in
another case, Hah Pada Khan v. Union of India29 the court upheld the
constitutionality of a similar standing order. After hearing the arguments the
Supreme Court dismissed both the appeal and the writ petition, holding that
principles of natural justice are not rigid or immutable hence, they cannot be
used to paralyse the exercise of administrative power when need of
promptitude and urgency demand immediate action. 30 Therefore, where an
employee is involved in a serious act of indiscipline which is likely to affect
the functioning of the institution, prompt action, which involves an element of
deterence to save the situation from worsening is necessary, principles of
natural justice may not apply in the larger interest of the society. Thus, the
court is trying to shift the balance from concept of individual rights to
communitarian concept in view of the changed socio-economic imperatives.
This proves the fact that no court can decide a case in a vacuum on merely
theoretical or conceptual basis but must take the realities into consideration,
otherwise law would falter in the face of specifics of life.
involved the courts will only play a secondary role while the primary judgment
as to reasonbleness will remain with the administrative authority. The
secondary judgment of the court is to be based on Wednesburyn and CCSJ733
principles to find out if the administrative authority has reasonaboly arrived
at the decision as the primary authority. However in a case where
administrative action affects fundamental rights (articles 19 and 21) the
question, whether the doctrine of 'proportionality' will apply empowering
court to assume primary role, was left open because in this case it was not
contended that any fundamental freedom was affected.34 The direction of the
court seems to be to give administration necessary flexibilities if it exercises
its role legally and rationally and the court would confine judicial review to
exercising "secondary role" unless fundamental freedoms are directly and
substantially in issue.
Regarding application of the doctrine of proportionality to determine the
quantum of punishment, the apex court was of the view that it cannot be a
routine matter. Where departmental proceedings reveal several acts of
misconduct and charges clearly establish failure in discharge of duties with
utmost integrity, honesty, devotion and diligence, the scope of judicial review
on the ground of proportionality is highly limited to situation of illegality and
irrationality.35
IX ADMINISTRATIVE DISCRETION
Endorsing the same statement of law, the Supreme Court in Bharat Heavy
Electricals Ltd. v. M. Chandershekhar Reddy39 held: "there is no such thing
as unlimited discretion vested with any judicial or quasi-judicial forum. An
unlimited discretion is a sworn enemy of constitutional guarantee against
discrimination. An unlimited discretion leads to unreasonableness. No
authority, be it judicial or quasi-judicial has any power to exercise discretion
vested in it unless the same is on justifiable grounds supported by acceptable
material and reasons thereof. In this case the labour court, while exercising
its discretion recorded that though the confidence of the employer in the
employee is shaken still it gave three reasons for exercising its discretion: (i)
There is no earlier instance of misconduct; (ii) he takes part in cultural
activities; (iii) punishment of dismissal is harsh. The decision of the labour
court was upheld by the high court in appeal. The apex court reversing the
order of reinstatement by the labour court and the high court opined that by
no stretch of imagination either the extenuating circumstances recorded by the
labour court or exercise of discretion could be termed either as reasonable or
judicious. 40
Elaborating on the ambit of the power of judicial review of administrative
discretion which is based on subjective satisfaction, the apex court held that
discretionary powers of an administrative authority can be subject to judicial
review on two main grounds: (i) failure to exercise discretion; (ii) excess or
abuse of discretion. These two classes are not mutually exclusive. Thus, an
authority in which discretion is vested can be compelled to exercise discretion,
but not to exercise it in a particular manner. The court has to find out if the
administration has left out relevant factors or taken into account irrelevant
factors. The decision must be within the four corners of law and must be
reasonably exercised. The decision must not be one which no sensible man
could have reasonably arrived at. Having regard to the above principles, the
authority must act in a bona fide manner. The decision could be one of many
choices but it is for the authority to decide upon the choice and not for the
court to substitute its views; however, a little play in the joints is certainly
permissible while dealing with the subjective satisfaction.41
X PROMISSORY ESTOPPEL
ambit of section 115 of the Evidence Act. Elaborating the scope of the
doctrine in Bannari Amman Sugars Ltd. v. CTO44 the apex court held that no
vested right as to tax exemption is acquired by a person who is granted
concession by the government. If any concession is given by the government
it can be withdrawn at any time and no time limit should be insisted upon
before it is withdrawn. The court clarified that the rule of promissory estoppel
can be invoked by the industry if on the basis of representation made by the
government the industry was established to avail the benefit of the exemption.
Though it is firmly established that the government may change its policy at
any time because public interest is always considered superior to private
equity, however, the withdrawl of representation / promise which induced a
person to change his position to his disadvantage must not be arbitrary,
unreasonable and must satisfy the requirements of articles 14 and 19 of the
Constitution. Reasonableness of restriction is to be determined in an objective
manner and from the standpoint of interest of the general public. A restriction
cannot be said to be unreasonable because it operates harshly in a given case.
In order to determine whether the change of policy is unreasonable or not, the
court must see the nature of the right infringed, underlying purpose of the
restriction imposed, the extent of urgency of the evil sought to be remedied,
the disproportion of the imposition, and prevailing conditions at a given time.
The court opined that canalization of a particular business in favour of even
a specified individual is reasonable where interest of the country is concerned
or where business affects the economy of the country. The Supreme Court
further elucidated that in order to invoke the doctrine of promissory estoppel,
clear, sound and positive foundation must be laid by the party invoking the
doctrine. Mere bold assertion without supporting material would not attract the
doctrine simply because the party has altered its position relying on
government assurance. The courts are bound to consider all aspects including
the results sought to be achieved and the extended public good.
XI RES JUDICATA
it was not open to the high court to reopen the matter again in a writ
proceeding and hold contrary to the decision of the apex court. This decision
thus, concludes the controversy that reopening of the same issue by the high
court or any court or tribunal and recording a contrary finding is a clear
violation of the principle of res judicata which has been now finally and
firmly established itself in writ jurisdiction.
are involved, like the one in service matters, PIL should not be allowed.48
for the tender conditions. These conditions were challenged by those who did
not fulfil these conditions on the ground of arbitrariness. Elaborating the
extent of judicial review in such cases, the apex court held that article 14 of
the Constitution prohibits government from arbitrarily choosing a contractor
at will and pleasure. Government has to act fairly, reasonably and in public
interest in awarding contracts. At the same time no person can claim a
fundamental right to carry on business with the government. All that he can
claim is that in competing for the contract he should not be unfairly treated
and discriminated to the detriment of public interest. Therefore, in dealing
with the contracts of the government the court must be prepared to enforce
standards of fairness. However, in the absence of any evidence of mala fide
on the part of the authority showing that the conditions were tailor-made to
promote certain parties, judicial interference is uncalled for. The court made
it amply clear that if two alternatives are available to the authority, the court
should not dictate the choice because on the subject of business management
expertise is available with the state authorities and not with the court. On the
basis of these considerations, the apex court did not find anything arbitrary or
discriminatory which deserved interference with conditions of the tender.
The Supreme Court has now firmly established that 'impracticability' or
'inadequacy' of a notified action is valid ground for judicial review. 54 In an
earlier decision 55 the court had held that a notified action may be quashed if
nothing has been done beyond publishing the notification to effectuate the
concerned statute. However, in a situation where only partial infrastructure/
facilities/convenience have been provided, the court instead of quashing the
notified action may issue time-bound directions for providing necessary
facilities. In the light of above statement, staying of the operation of
notification of the government to implement the Maharashtra Act 15 of 1987
due to inadequacy of infrastructure (court rooms, appointment of judges etc)
by the high court was upheld by the Supreme Court. Though high court is
generally not permitted to decide whether sufficient and adequate reasons
existed for bringing the law into operation, yet in case of dealing with the
administration of justice, high court may issue directions because of its
judicial and administrative control over subordinate courts. The clear message
which the court is trying to give is that before taking any measure which
increases the burden of the courts, adequacy of infrastructural facilities
available must form an essential part of the planning.
It is a settled law that in the exercise of power of judicial review courts
do not interfere with the quantum of punishment awarded to the delinquent
employee by the authority unless it is unduly harsh, vindictive or generally
disproportionate. However, even in such cases judicial discretion is not
unlimited and must be exercised judiciously. Reiterating its earlier position in
Bharat Heavy Electricals Ltd v. M. Chandershekhar Reddy56 the apex court
held that without a finding, based on record, that the fact of loss of confidence
or quantum of punishment is so harsh as to be vindictive or shockingly
disproportionate, interference with the award of punishment in a domestic
enquiry is impermissible. In this case an employee had taken a house building
loan from the company by depositing the title deeds. However, later on by
forging the signature of the concerned authority he took back the title deeds
and tried to sell the property. Domestic enquiry found the employee guilty and
thereafter, his services were terminated on the ground of loss of confidence in
the employee. Labour court, which heard the dispute, nevertheless, passed
order for reinstatement on the ground that it was the first misconduct and that
the employee was a cultural activist and took part in cultural activities of the
company. In appeal, the high court agreed with the decision of the labour
court. Reversing the decision, the apex court held that taking part in cultural
activities and the fact that it was the first instance of misconduct could not be
a sufficient ground germane to the records for altering the punishment
awarded by the company where there was a complete lack of faith and
confidence in the employee. Approach of the court clearly seems to be
'discipline oriented' which can provide for management flexibilities in this age
of economic liberalization as a principle of judicial review of administrative
action.
Article 136 of the Constitution which is in the nature of a residuary
reserve power of judicial review in the area of public law lays down that the
Supreme Court may, in its direction, grant special leave to appeal from any
judgment, decree, determination, sentence or order in any cause or matter
passed or made by any court or tribunal. Since the court has power to grant
special leave to appeal against the decisions of administrative tribunals and
other agencies, it is now regarded as an important mode of judicial review of
administrative adjudicatory actions. In Manju Verma (Dr.) v. State ofU.P.51
an important question which claimed judicial response was whether an order
passed by the Chief Justice of the Allahabad High Court on the administrative
side under para 14 of United Provinces High Courts (Amalgamation) Order,
1948 transferring a case from Lucknow bench to Allahabad bench of the high
court is appealable under article 136 of the Constitution? Respondent, in this
case, raised a preliminary objection before the Supreme Court that appeal is
not maintainable as the order of the chief justice is administrative passed on
the administrative side and thus it is not a judicial or quasi-judicial order
passed by a court or tribunal which is a requirement of article 136 for filing
appeal. Rejecting the contention, the court held that article 136 confers broad
powers on the Supreme Court to grant special leave to appeal from any order
provided two conditions are present: (i) the proposed appeal must be against
a judicial or quasi-judicial and not purely executive or administrative order;
(ii) the determination must have been made or passed by a court or a tribunal.
Keeping in view these two jurisdictional conditions, the court held that the
57 Supra note 3.
58 See generally Durga Shanker Mehta v. Thakur Raghuraj Singh, AIR 1954 SC 520.
order passed by the chief justice was quasi-judicial as there was lis between
two contesting parties making rival claims and the statutory authority under a
statutory provision was required to decide a dispute, which made the authority
quasi-judicial authority.58 Replying to the question whether the chief justice
in this case could be said to have acted as a 'court' or 'tribunal', the court
opined that the chief justice was acting as a 'tribunal' if not as a court.
Clarifying further, the apex court made it clear that the expression 'tribunal'
as used under article 136 does not mean something as 'court' but includes,
within its ambit, all adjudicating bodies, provided they are constituted by the
state and are invested with judicial as distinguished from purely administrative
or executive functions except those established under any law relating to
armed forces. 59 Thus, the apex court concluded that the order of the chief
justice passed under para 14 of the United Provinces High Courts
(Amalgamation) Order, 1948 to transfer a writ from Lucknow bench to
Allahabad bench of the high court, though passed on the administrative side,
was subject to the jurisdiction of the Supreme Court under article 136 of the
Constitution.
Explaining the nature and scope of judicial review under article 136
further, the court made it clear that the jurisdiction of the court is plenary
which can be exercised in spite of other specific provisions for appeal
contained in the Constitution or other laws. It opined that article 136 confers
on the Supreme Court special or residuary powers which are exercisable
outside the purview of the ordinary laws in cases where the needs of justice
demand interference by the apex court and this jurisdiction cannot be taken
away by any legislation subordinate to the Constitution.60
In order to make writ jurisdiction more 'people centric' by extending its
long arms, the Supreme Court maintained that a person in the same trade has
a right to file writ for cancellation of licence granted to another person in
violation of the provisions of the law and the rules, because it will have impact
on his trade and he will suffer civil consequences. In this case61 the appellant
who was running a cinema had filed a writ petition against the grant of licence
to another person in violation of the law and rules for opening a video parlour.
The high court declined the writ on the ground of locus standi because the
appellant had not suffered any damage or no legal right of his was violated.
Thus, by expanding the writ jurisdiction the apex court has provided enlarged
protection to the right of people and also infused the administration with the
culture of fairness.
Aristotle once said that generalities of law falter before the specifics of
life. Thus, courts always try to balance generalities with specifics in order to
meet the needs of the hour. In State of NCT of Delhi v. Sanjeev62, the apex
court went out of its way to balance the competing interests of the individual
59 See generally Indian National Congress (1) v. Institute of Social Welfare, (2002) 5 SCC
685.
60 Mahindra Saree Emporium (II) v. G. V. Srinivas Murthy, (2005) 1 SCC 481.
61 Sai Chalchitra v. Commr. Meerut Mandal, (2005) 3 SCC 683.
62 Supra note 41.
and the society in an objective manner. In this case the respondent was
engaged in several illegal activities and this was causing concern and alarm to
the residents. Therefore, acting under section 47 of the Delhi Police Act, an
externment order was passed for a period of one year. This order was
challenged before Lt. Governor of Delhi who rejected the appeal, hence writ
before high court. Under section 47 of the Delhi Police Act, there are three
options available to the authority: (i) to direct such person to conduct himself
as deemed necessary to prevent violence and alarm; or (ii) to direct him to
remove himself outside any part of Delhi; or (iii) to direct him to remove
himself outside the whole territory of Delhi. In an earlier case, 63 the High
Court of Delhi had held that the authority while passing an order under section
47 must indicate as to why one of the three options is being adopted. Relying
on this decision, the high court held that though one of the options was
adopted, yet there was no clear material or elaborate reasoning indicating the
grounds for selecting an alternative option, hence appeal before the apex
court. Though by the time appeal was heard the period of externment was
over, yet the court deemed it proper to decide the matter in order to clarify the
doubtful area of judicial review in view of some divergent views of the high
courts.
Disposing the appeal, the court held that material justifying externment
can also throw light on options to be exercised. If referring to the materials,
the authority directing externment also indicates the option it thinks to be
proper and appropriate, it cannot be said to be vitiated, even though there is
no specific reference to the other options. It is a matter of legitimate inference
that when considering the material to adjudicate on the question of desirability
of externment options are also considered as which one of the three options
can be adopted. There cannot be any hair-splitting in such matter.64 The court
clarified that where the action is based on subjective satisfaction of the
authority, the court will interfere only when satisfaction recorded is
demonstrably perverse, based on no clear evidence, misreading of evidence,
or which a reasonable man could not form, or that the person concerned was
not given due opportunity resulting in prejudice. Thus, objectivity is inbuilt
in the subjective satisfaction of the authority.
Elaborating on the scope of judicial review of administrative action the
court opined that it is limited to consideration of legality of decision making
process and not legality of order per se. Mere possibility of another view
cannot be a ground for interference. In case of an administrative action court
will not interfere unless the decision suffers from illegality, irrationality and
procedural impropriety. It must be specifically established that in which
specific category the impugned action falls. Mere assertion in that regard will
not be sufficient. Illegality and procedural impropriety as ground of judicial
review are easy to ascertain but to characterize an administrative decision as
'irrational' the court emphasized that it has to hold on material, that it is a
XIV CONCLUSION
Judicial role perception and performance during the period under review
pertaining to the development of an effective administrative law regime clearly
demonstrates, that within its own limitations judiciary in India is trying hard
to develop administrative law as an instrument to ensure observation of rule
of law by the administration which runs like a golden thread through the pages
of the Constitution and indisputably constitutes its basic feature and requires
that every organ of the state must act within the parameters of the law and the
Constitution. This has certainly kept alive the hope of the common man in the
democratic governance of the country. Alternative would have been disastrous
and would have carried in its deluge all the fine values of life which we all so
dearly cherish.