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 Question:'article 14 of the constitution incorporates the rule of equality .equality is not violated by mere conferment of power'. Explain the above statement. Is conferment of power in the executive immune from judicial review? How such power is controlled .discuss with the help of judiciary?

 Dicey's rule of law:

Dicey said:'it means, in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the government. Englishmen are ruled by the law, and by the law alone; a man may with us be punished for breach of law, but he can be punished for nothing else. it means ,again, equality before the law ,or the equal subjection of all classes to the ordinary law courts ;the 'rule of law 'in this sense  excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens or from the jurisdiction of the ordinary tribunals. There can be with us nothing really corresponding to the 'administrative law' (droit administrative) or the 'administrative tribunals' (tribunaux  administratifs)of France '''.'

Dicey wrote in the hey-day of laissez 'faire and he dealt with the rights of individuals not with the powers of the administration.

But the true view is that dicey's rule of law, which was founded on the separation of powers, fixed public attention on administrative law and delegated legislation. Dicey dealt with individual liberty and criticized administrative discretion .but he did not deal with the administration as such, and he failed to distinguish between discretion given to public officials by statute and the arbitrary discretion at one time claimed by the king.

Dicey himself showed 'a change of heart 'in his long introduction to the eighth edition of the law of the constitution. There, he doubted whether law courts were in all cases best suited to adjudicate upon the mistakes or the offences of civil servants, and he said that it was for consideration whether a body of men who combined legal knowledge with official experience, and who were independent of government, would not enforce official law more effectively than the high court.

And a special tribunal substantially on the lines of the couseild'etat, as better suited to enforce that law than the high court. a long introduction that marked a real change in his thinking

Discretion concept and meaning

Diplock: - a right to choose between more than one possible course of action

Power to decide according to one's own judgment

It is usually conferred by such phrases as 'if in his opinion 'if he thinks fit; if he deems.

Discretion extends to methods, forms, timings, degrees of emphasis and many other subsidiary factors.

Exercise and control of discretionary powers;

Conferment of discretionary power on the administrative authorities is inevitable and to some extent a necessary evil.

There is a possibility of a statute conferring unfettered discretions on the administrative authority.

But these unfettered discretions can be challenged as unreasonable restrictions under article 14 and article 19.

The requirement of article 14, being the duty to act, justly, and reasonably has to be strictly complied with.

The basic requirement of article 14 is fairness in action by the state.

Principles of judicial review: discretionary power

A discretionary power is not completely discretionary in the sense of being entirely uncontrolled .in almost all the democratic countries it is accepted that discretion conferred on the administration is not unfettered, uncontrolled or non-reviewable by the courts.

Nature and extent of judicial review of administrative action vary greatly among the countries of England, USA and India.

England:

Extensive review done under the exercise of doctrine of 'rule of law'. British formula prescribes two grounds of challenge.

1) That the order in question is not within the powers of the act, and

2) The failure to comply with requirements of the act'.

 Ultra vires rule

Exceeding an express statutory power by administrative authorities.

The decision of house of lords in pad fields v minister of agriculture (1968) case is an important landmark in the current era of judicial activism in this area of administrative law. In this case, the minister had  refused to appoint a committee , as  he was statutorily empowered to do so when he thought fit to investigate complaints made by members of the milk marketing board that the majority of the board had fixed milk prices in the way that was unfavorable to the complainants minister's reason, for refusing to accede to the complainants request inter alia was that it would be politically embarrassing for him if he decided not to implement the committee's recommendations .

House of Lords held:

'Minister's decision was ultra virus and the discretion was not unfettered '

In the council of civil service unions v minister for the civil service;

House of Lords reiterated broader standards of review of the exercise of prerogative powers.

1) Powers exercised directly under the prerogative are not by virtue of their prerogative source automatically immune from the judicial review.

If the subject matter of a prerogative power is justifiable then the exercise of the power is open to judicial review in the same way as, a statutory power.

However prerogative powers such as those relating to the making of treaties the defense of the realm ,the prerogative of mercy, the grant of honors ,the  dissolution of parliament  and the appointment  of minister are not justifiable or reviewable .

2) Administrative action is subject to control by judicial review under three heads :

A) Illegality 'guilty of an error of law

E.g. by purporting to exercise a power it does not possess (ultra virus).

b) Irrationality: - acting so unreasonably that no reasonable authority would have made the decision.

c) Procedural impropriety: - failed in its duty to act.

USA

the supremacy clause of article 6 of the American constitution establish that the constitution of the united states binds state officials .The federal courts can review the constitutionality of the statutes and the actions of state officials .

In America, judicial review is the doctrine that the courts have the power to invalidate governmental action which is repugnant to the constitution.

In America, judicial review of administrative action is the rule and non 'reviewability an exception.

Substantial evidence rule:

In USA , judicial review does not confine to question of law only but also to question of facts, the question  whether the administrative findings of fact rests on substantial evidence is really a question of law .if not supported by substantial evidence ,it will be considered as arbitrary ,capricious and unauthorized.

Report of the attorney generals committee on administrative process:

'it is a general rule that the determination of law are reviewable by  the courts, but the  determinations of facts ,are not reviewable .in America ,finding of fact is reviewable by the courts on the ground that it is not supported by 'substantial evidence'.

In the universal camera corp. v national labor relation board justice 'frankfurter stated that:

'In determining the substantiality of evidence, the reviewing court must take into account not only the evidence supporting the administrative findings but also 'contradictory evidence', or the evidence from which conflicting inferences could be drawn.

India:

Although the doctrine of separation of powers has not been recognized in the constitution in its absolute rigidity, but the functions of various organs have been defined meticulously. No organ can usurp the functions assigned to another .judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive.

The latest trend in the judicial opinion is to expand the area of justifiability under article 14,19 and 21.

Approach of the Indian courts in reviewing administrative determinations are found mainly in two different ways:

1) Jurisdictional principle

2) Rule of law

Jurisdictional principle

1) Error of jurisdiction

Ultra virus act of administrative authority or tribunal .

After the establishment of the constitution, the writ of certiorari was issued for the first time in Ibrahim aboobakers case to quash the decision of an authority on this ground and Supreme Court said:

'The decision of an authority can be quashed if it acted without jurisdiction or in excess or in violation of principles of natural justice '.

In state of trading corporation v Mysore under the Indian constitution and the central sales tax act ,1956 , a state cannot tax on interest sale .an assessment of sales tax on a sale was challenged as falling out of the jurisdiction of the assessing authority on the ground that the sale in question was on interstate sale .the court held that the authority had no jurisdiction to tax interstate sale because of the constitutional prohibition ,and it could not give jurisdiction to itself to do so by deciding a collateral fact wrongly.

Two types of error of jurisdiction:

A) Error of law:

Error of law which effects within the jurisdiction, if apparent on the face of the record, are reviewable by the courts.

Error of fact:

1) Error of fact which goes to the jurisdiction

2) Error of fact which does not go to the jurisdiction

 Exclusion of judicial review

Rationale for exclusion:

A)-quicker and speedy justice to weaker sections of society

Example: tenancy acts, land reforms acts.

   Determination of tenancy rights by special authorities under the acts.

    Statutes dealing with debts.

b) Protection of industrial workers from unnecessary harassment:

Finality clause in statutes.

In Canada, finality clauses in labor legislations, labor board decision is final

c) Decision requiring expertise in which considerations of policy or expediency is relevant.

Indian railways act,1890

Electricity supply act,1948

d) Decisions which affect revenue of the state

e) Autonomy to local authorities

Elected and composed of experts.

f) Laws dealing with emergency or extraordinary situations

Legislative intention of exclusion

a) Express exclusion formulae

b) Implied exclusion formulae

c) Total exclusion formulae

An order under this act shall be final and not liable to be questioned in any court of law'

Exclusion formula applies only to the ordinary civil courts.

Special leave petition under article 136 against final decision of tribunal

Unreviewable discretionary powers except:

1) Enforcement of due process requirements

2) On constitutional and jurisdictional questions

3) On questions of interpretation and constitutionality

4) Fraudulent actions

5) Clearly arbitrary or beyond the agency's jurisdiction.

6) No locus standi

( R.D. shetty v.  International airport authority)

(k. narayan  v.  Government of Andhra Pradesh)

7) Policy decisions:

Not reviewable under article 32 of Indian constitution.

Bennett Coleman and co.ltd v. union of India

News print control policy

Ram Jawaya v state of Punjab

State of M.P. v Nandalal Jaisawal

Constitutional exclusion

Article 74,103(1),105,136(2),217(3),311(2)(b),329,363

Durga Shankar v Raghuraj Singh

Art 329

Elections case

Since E.P. Royappa v state of Tamil Nadu (AIR, 1974 S.C. 555)

Cases:

Air India v. Nargesh Mirza (air 1981 sc 1829):

A regulation framed by air india providing for termination of services of an air hostess on her first pregnancy was held to be extremely unreasonable ,arbitrary and interfering with the ordinary course of human nature and hence violative of article 14 of constitution .here the court expanded the concept of unreasonableness.

State of west Bengal v. Anwar Ali (AIR 1952 SC 75):

In order to speed up the trial for certain offences under W.B. special courts act, discretion was conferred on the state government to refer any offence for the trial by the special court. Since the procedure before special court was stringent in comparison to that for normal trails ,the court declared law invalid on the ground that the use of vague expressions ,like 'speedier trial' confer a wide discretion and can be a basis of unreasonable classification thus violative of article 14.

State of Punjab v. khem Chand(AIR 1974 SC 543):

The petitioner's truck was requisitioned by the D.M. Rohtak, for famine relief work under the east Punjab requisition of movable property act, 1947. It was held that act confers wide discretionary powers by not laying down the proper guidelines. Moreover the word 'public purpose' is not properly defined.

Dwarka Prasad Laxmi Narain v. state of U.P. (AIR 1954 SC 224):

In this case the constitutionality of U.P. coal control order, 1953 was in issue. The apex court held that by virtue of the delegation of powers by the central government to the provincial government under section 4 of the essential supplies act, the U.P. government was competent to make provisions ,by notified order, for  regulating  the supply and distribution of coal in such a way as they considered proper with a view to secure the objects as specified in section 3 of the act ,but all that is necessary is that these provisions should not infringe the fundamental rights of the citizens guaranteed under part 3 of the constitution and if they impose restrictions upon the carrying  on of trade or business, they must be reasonable restrictions imposed in the interest of the general public as laid down in article 19(6) of the constitution.

A.N.Parasuraman v. state of Tamil Nadu (AIR 1990 SC 40):

The appellants challenged certain sections of Tamil Nadu Pvt. Educational institutions (regulation) act, 1966 on the ground that they did not lay down any guideline for the exercise of the power by the delegated authority as a result of which the authority was in a position to act according to his whims. The act did not indicate conditions for the exercise of power by the competent authority and was, therefore, discriminatory and arbitrary.

The court held that act conferred unguided power on the authority and, therefore, was ultra vires and illegal. The purpose of the act was to regulate private educational institutions but it does not give any idea as to the manner in which the control over the institution could be exercised.

CONCLUSION:

The discussion ,thus  confirm that conferment of an arbitrary ,sweeping and uncontrolled discretion on an administrative authority violates article 14 and 19 as it beats the dangers of discrimination amongst those similarly situated and is unreasonable .such a conferment can be dealt with by courts using doctrine of excessive delegation of discretion.

References:

1. Principals of  administrative law,m.p.jain and s.n.jain,sixth edition reprint 2011

2. A.N.Parasuraman v. state of Tamil Nadu (AIR 1990 SC 40)

3. Dwarka Prasad Laxmi Narain v. state of U.P. (AIR 1954 SC 224)

4. State of west Bengal v. Anwar Ali (AIR 1952 SC 75)

5. State of Punjab v. khem Chand(AIR 1974 SC 543)

6. Air India v. Nargesh Mirza (air 1981 sc 1829)

7. E.P. Royappa v state of Tamil Nadu (AIR, 1974 S.C. 555)

8. state of trading corporation v Mysore

9. Durga Shankar v Raghuraj Singh

10. Ram Jawaya v state of Punjab

11. State of M.P. v Nandalal Jaisawal

12. Bennett Coleman and co.ltd v. union of India

13. ( R.D. shetty v.  International airport authority)

14. (k. narayan  v.  Government of Andhra Pradesh)

15. universal camera corp. v national labor relation board

16. Report of the attorney generals committee on administrative process

17. supremacy clause of article 6 of the American constitution

18. council of civil service unions v minister for the civil service

19. pad fields v minister of agriculture (1968) case

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