Jaipur National UniversitySeedling School of Law and Governance

Administrative Law Project OnJudicial Review of Administrative Action

Submitted To: Miss Rachna Choudhary (Faculty of Law) Submitted By: Abha BALLB (5th sem.)

INTRODUCTION One of the most significant questions for originalists-perhaps the most significant question-is: What was the original understanding of judicial review? Scholars and jurists have sharply disagreed on the answer. Opinions range from the claim that judicial review was not part of the original JUDICIAL REVIEW BEFORE MARBURY 457 understanding at all1 to the contention that the original conception of judicial review was so expansive that courts had the power to invalidate statutes on broad natural law grounds. 2 The Supreme Court has claimed originalist sanction for the view that it is "the ultimate expositor of the constitutional text, and in the past decade has struck down a string of congressional statutes on originalist grounds. The power of judiciary to review and determine the validity of a law or an order may be described as the powers of Judicial Review.It means that the constitution is the supreme law of the land and any law inconsistent therewith is void through judicial review. It is the power exerted by the courts of a country to examine the actions of the legislatures, executive and administrative arms of government and to ensure that such actions conform to the provisions of the nations Constitution. Judicial review has two important functions, like, of legitimizing government action and the protection of constitution against any undue encroachment by the government. The Supreme Court has been vested with the power of judicial review. It means that the Supreme Court may review its own Judgement order. Judicial review can be defined as the competence of a court of law to declare the constitutionality or otherwise of a legislative enactment.Being the guardian of the Fundamental Rights and arbiter of the constitutional conflicts between the Union and the States with respect to the division of powers between them, the Supreme Court enjoys the competence to exercise the power of reviewing legislative enactments both of Parliament and the States legislatures.The power of the court to declare legislative enactments invalid is expressively provided by the Constitution under Article 13, which declares that every law in force, or every future law inconsistent with or in derogation of the Fundamental Rights, shall be void. Other Articles of the Constitution (131-136) have also expressively vested in the Supreme Court the power of reviewing legislative enactments of the Union and the States.The jurisdiction of the Supreme Court was curtailed by the 42nd Amendment of the Constitution (1976), in several ways. But some of these changes have been repealed by the 43rd Amendment Act, 1977. But there are several other provisions which were introduced by the 42nd Amendment Act 1976 not repealed so far. In many cases the judicial reviews played a pivotal role in restoring the fundamental rights of the citizens and safeguarded the constitution but it cannot be undermined that the judicial review has become an outreach in man of the cases. The acknowledgement of this difference between judicial activism and judicial overreach is vital for the smooth functioning of a constitutional democracy with the separation of powers as its central characteristic and supremacy of the constitution as the foundation of its edifice. This paper helps to understand the importance of judicial review and also to highlight the judicial activism into outreach, the main problem of the judicial review is it fails to acknowledge the separation of power which is the very essence of the constitution, and more so the judicial actions are not accountable as compared to that of the legislature and executive. The author aims to understand the intricacies of the concept of judicial review. The proviso of judicial review has been implemented in the constitution of India from the United States Constitution. Judicial review is the doctrine under which lawmaking and administrative proceedings are matter to review by the judiciary. The notion of judicial review is espoused in the constitution of India from judicial review in the United States. Judicial review is dealt under Article 13 of the Constitution of India. Judicial review cites that the Constitution of India is the superlative authority of the state and the entire laws are under itspreeminence.The Apex Court of India has been conferred with the authority of judicial review. So with this power or authority of judicial review, it means that the Supreme Court of India can review its own verdict or decision. Judicial review can be defined as the proficiency of a court of law to affirm the authorization or else of a legislative enactment.The Supreme Court of India as the protector or custodian of the Fundamental Rights and intermediary or arbitrator of the legitimate or constitutional difference among the Centre and the States with respect to the separation of powers between them under the Union, State and Concurrent list, the Apex Court have the capacity to put into effect the power of reviewing legislative enactments equally of Parliament of India and the States legislatures.The authority of the court of law to pronounce legislative endorsement void is meaningfully specified by the under Article 13 of the Constitution of India, which affirm that each and every law in power, or any prospect law conflicting with or in deprecation of the Fundamental Rights, shall be null and void. Further, other Articles of the Constitution of India, e.g. Article 131-136 have also expressively vested in the Supreme Court, the power of reviewing legislative enactments of the Centre and the States.The jurisdiction of the Apex Court was truncated by the 42nd Amendment of the Constitution in the year 1976, which is also famous asMini Constitution. However several modifications have been made in the Constitution by 43rd Amendment and some of the provisions have been repealed by the 43rd Amendment Act, 1977. Although, there are few additional provisions which were commenced by the 42nd Amendment Act, 1976 but not repealed till now.Meaning Judicial review is a courts power to review, and possibly nullify, laws and governmental acts that violate the constitution and higher norms. It is a way to assure that governmental actors respect the constitution and do not use powers granted to them by the constitution to seize illegitimate power. Judicial review is generally the final word by a governmental institution on a laws validityThe system of judicial review of administrative action has been inherited from Britain. it is on this foundation that the Indian court have built the superstructure of control mechanism. The whole law of judiciary review of administrative action has been developed by judge on case to case basis. Consequently, a ticket of technicality and inconsistency surrounds it. However, present trend of judicial decision to widen the scope of judicial review of administrative action and to restrict the immunity from judicial review to class of cases which relate to deployment of troops and international treaties, etc.[footnoteRef:1] [1: Indian Railway Construction Co. Ltd .V. Ajay Kumar,(2003) 4 SCC 579]

Judicial review of administrative policy Norms of judicial review of a administrative policy are more exacting and intrusive than the legislative policy. in case of administrative policy there is more need of scrutiny and balancing. Courts are very reluctant to strike down legislation unless there is a clear violation of constitutional provisions. Court is not concerned with wisdom of the legislature but only with its legislative competence, and court will uphold the policy irrespective of courts own view[footnoteRef:2]. [2: Karnataka Bank Ltd .v. State of A.P., (2008) 2 SCC 254]

However, an administrative policy laid down by its rule making power or in exercise of its executive powers can be review if:1. It is unconstitutional;2. It is beyond the power of the parent act or regulation;3. The delegate has acted beyond the power of delegation;4. It is contrary to statutory policy a larger policy.[footnoteRef:3] [3: DDA v. Joint Action Committee, Allotment of SFS Flats,(2008) 2SCC 672.]

Executive decision cannot be termed as policy decision and there is also no presumption of its Constitutionality. Courts will apply doctrine of wednesbury unreasonabless and doctrine of proportionality in judging the validity of an administrative policy.The duty of the court in exercising the power of judicial review is thus to confine itself to the following questions[footnoteRef:4] [4: (1994)6 SCC 651,676.]

Whether a decision-making authority exceeded its powers?

Whether the authority has committed an error of law?

Whether the authority has committed a breach of the principles of natural justice?

Whether the authority has reached a decision which no reasonable person would have reached?

Whether the authority has abused its power?

The power of judicial review is not directed against the decision but is confined to the decision-making process.[footnoteRef:5] Therefore, courts generally do not appreciate evidences of enter into determination of questions which demand elaborate examination of evidences or interfere in the punishment imposed unless the administrative decision is mala fide or made in constitutional provision or is such which shocks the conscience the court.[footnoteRef:6] [5: Haryana Development authority v. Roochira Ceramics,(1996)6 SCC 584.] [6: B. C. Chaturvedi v. Union of India,(1995)6 SCC 749.]

Thus the judicial review of administrative actions can be exercised on the following grounds: Illegality: This means that the decision-making must correctly understand the law that regulates his decision-making power and must give effect to it. Irrationality: This means that the decision is so outrageous in its defiance of logic or of accepted moral standards that no sensible person could have arrived at such a decision. Procedural impropriety: This means that the procedure for taking administrative decision and action must be fair, reasonable and just. Proportionality: This means in any administrative decision and action the end and means relationship must be rational. Unreasonableness: This means that either the facts do not warrant the conclusion reached by the authority or the decision is partial and unequal in its operation.

Thus the modern trend in the area of judicial review is towards judicial retraint.[footnoteRef:7] Against this backdrop the policy decision of the government is not the subject of judicial review unless it is unreasonable or against public interest.[footnoteRef:8] [7: Tata Cellullar v. Union of India,(1994) 6 SCC 651,677-678.] [8: State of U.P. v. U.P> University colleges pensioners Assn., (1994) 2 SCC 729.]

Judicial review of Administrative Action: ModePublic law review Basic purpose of judicial review is to enforce constitutionalism and to guard against majoritarianisn. Thus an important aspect of public law review is not only the enforcement of private right but to keep the administrative and quasi administrative machinery within proper control. This aspect of public law review was rightly stressed by the Supreme Court in S.L Kapoor v. Jagmohan.[footnoteRef:9] In this case two non-official members of the New Delhi Municipal Committee had filed petition before the Supreme Court under Art136 against the governmental action of superseding the municipal Committee without complying with the principle of Natural Justice. During the pendency of the case, the term of office of the petitioner expired. It was argued that since the petition has become infructuous, the court has no power to continue with the appeal. Rejecting the contention the Apex Court held that since the petition involves an issue of public importance, the court can still decide the issue even in the face of loss of standing of the petitioners. [9: (1980) 4 SCC 382]

The prime function of judicial review is to check the abuse of administrative powers and to enforce accountability on the operators of these powers.The power of public law review is exercised by the Supreme Court and High Court through writs of Certiorari, Prohibition, Mandamus, Quo-warranto and Habeas Corpus and also through the exercise of power under Articles 136 and 226 of the Constitution. CertiorariCertiorari is a Latin term being in the passive form of the word Certiorari meaning to inform. It was a royal demand for information. Certiorari can be described as one of the most valuable and efficient remedies. Certiorari is one of the five prerogative writs adopted by the Indian Constitution under Article 226 which would be enforced against the decisions of the authority exercising judicial or quasi judicial powers. Such powers are exercised when the authorities have failed to exercise the jurisdiction though vested in it or failed to exercise the jurisdiction though vested on him or to correct the apparent error on the face of record or there is violation of the principle of natural justice. An instance showing the certiorari powers was exercised by the Honble Supreme court in A.K.Kraipak v. Union of India[footnoteRef:10], where the selection was challenged on the ground of bias. The Supreme Court delineated the distinction between quasi judicial and administrative authority. The Supreme Court exercising the powers issued the writ of Certiorari for quashing the action. [10: (1969)2 SCC 262]

ProhibitionThe writ of Prohibition is issued by the court exercising the power and authorities from continuing the proceedings as basically such authority has no power or jurisdiction to decide the case. Prohibition is an extra ordinary prerogative writ of a preventive nature. The underlying principle is that prevention is better than cure. In East India Commercial Co. Ltd v. Collector of Customs[footnoteRef:11], a writ of prohibition is an order directed to an inferior Tribunal forbidding it from continuing with a proceeding therein on the ground that the proceeding is without or in excess of jurisdiction or contrary to the laws of the land, statutory or otherwise. [11: AIR 1962 SC 1893]

MandamusMandamus is a judicial remedy which is in the form of an order from a superior court to any Government agency, court or public authority to do or forbear from doing any specific act which that body is obliged to do under the law. The writ of mandamus is issued whenever the public authorities fail to perform the statutory duties confirmed on them. Such writ is issued to perform the duties as provided by the state under the statute or forbear or restrain from doing any specific act. The first case reported on the writ of mandamus was the Middleton case in 1573 wherein a citizens franchise was restored. The writ of mandamus can be issued if the public authority vested with power abuses the power or acts mala fide to it. In Halsburys Laws of England, it is mentioned that,As a general rule the order will not be granted unless the party complained of has known what it was required to do, so that he had the means of considering whether or not he should comply, and it must be shown by evidence that there was a distinct demand of that which the party seeking the mandamus desires to enforce and that that demand was met by a refusal.Quo WarrantoQuo Warranto means by what warrant or authority. Quo Warranto writ is issued against the person of public who occupies the public seat without any qualification for the appointment. It is issued to restrain the authority or candidate from discharging the functions of public office. In University of Mysore v. Govinda Rao[footnoteRef:12], the Supreme Court observed that the procedure of quo Warranto confers the jurisdiction and authority on the judiciary to control executive action in making the appointments to public offices against the relevant statutory provisions; it also protects a citizen being deprived of public office to which he may have a right. [12: 1964 SCR (4) 576]

Habeas CorpusThe Latin term Habeas Corpus means have the body. The incalculable value of habeas corpus is that it enables the immediate determination of the right of the appellants freedom . The writ of Habeas Corpus is a process for securing liberty to the party for illegal and unjustifiable detention. It objects for providing a prompt and effective remedy against illegal restraints. The writ of Habeas Corpus can be filled by any person on behalf of person detained or by the detained person himself. It is a judicial order issued by Supreme Court or High Court through which a person confined may secure his release. The writ of Habeas Corpus can be filed by any person on behalf of the other person. In Icchu Devi v. Union of India[footnoteRef:13], the Supreme Court held that in a case of writ of Habeas corpus there are no strict observances of the rules of burden of proof. Even a post card by any pro bono publico is satisfactory to galvanize the court into examining the legality of detention. In A.D.M. Jabalpur v. Shivakant Shukla[footnoteRef:14], it was observed that the writ of Habeas Corpus is a process for securing the liberty of the subject by affording an effective means of immediate relief from unlawful or unjustifiable detention whether in prison or private custody. By it the High Court and the judges of that court at the instance of a subject aggrieved command the production of that subject and inquire into the cause of his imprisonment. If there is no legal justification for that detention, then the party is ordered to be released. [13: (1980) 4 SCC 531] [14: (1976) 2 SCC 521]

Role of writs in administrative actionsNow as far as the role of the writs is concerned, let us go by illustration over the cases on discretion. Conferment of discretionary powers has been accepted as necessary phenomena of modern administrative and constitutional machinery. Law making agency legislates the law on any subject to serve the public interest and while making law, it has become indispensable to provide for discretionary powers that are subject to judicial review. The rider is that the Donnie of the discretionary power has to exercise the discretion in good faith and for the purpose for which it is granted and subject to limitations prescribed under the Act. The Courts have retained their jurisdiction to test the Statute on the ground of reasonableness. Mostly, the courts review on two counts; firstly whether the statute is substantively valid piece of legislation and, secondly whether the statute provides procedural safeguards. If these two tests are not found, the law is declared ultra vires and void of Article 14 of the Constitution.Beside this, Courts control the discretionary powers of the executive government being exercised after the statutes have come to exist. Once they come into existence, it becomes the duty of the Executive Government to regulate the powers within limitations prescribed to achieve the object of the Statute. The discretionary powers entrusted to the different executives of the Government play substantial role in administrative decision making and immediately the settled principles of administrative law trap the exercise of powers. If these discretionary powers are not properly exercised, or there is abuse and misuse of powers by the executives or they take into account irrelevant consideration for that they are not entitled to take or simply misdirect them in applying the proper provision of law, the discretionary exercise of powers is void. Judicial review is excluded when it is found that executives maintain the standard of reasonableness in their decisions. Errors are often crept in either because they would maintain pure administrative spirit as opposed to judicial flavor or that they influence their decisions by some irrelevant considerations or that sometimes, the authorities may themselves misdirect in law or that they may not apply their mind to the facts and circumstances of the cases. Besides, this aspect, they may act in derogation of fundamental principles of natural justice by not conforming to the standard or reasons and justice or those they do not just truly appreciate the existence or non existence of circumstances that may entitle them to exercise the discretion.The Executive have to reach their decisions by taking into account relevant considerations. They should not refuse to consider relevant matter nor should they take into account considerations that are wholly irrelevant or extraneous. They should not misdirect themselves on a point of law. Only such a decision will be lawful. The courts have power to see that the Executive acts lawfully. They cannot avoid scrutiny by courts by failing to give reasons. If they give reasons and they are not good reasons, the court can direct them to reconsider the matter in the light of relevant matters though the propriety adequacy or satisfactory character of these reasons may not be open to judicial scrutiny. Even if the Executive considers it inexpedient to exercise their powers they should state their reasons and there must be material to show that they have considered all the relevant facts.The role of writs is also sensibly laid down in a famous Padfields case[footnoteRef:15]:..In England in earlier days the Courts usually refused to interfere where the Government or the concerned officer passed what was called a non-speaking order, that is, an order which on the face of it did not specify the reasons for the orders. Where a speaking order was passed the Courts proceeded to consider whether the reasons given for the order or decision were relevant reasons. Where there was a non-speaking order they used to say that it was like the face of the Sphinx in the sense that it was incurable and therefore hold that they could not consider the question of the validity of the order. Even in England the Courts have travelled very far since those days. They no longer find the face of the Sphinx inscrutable. [15: (1968) 1 ALL ER 694]

Application of the Writ of CertiorariThe writ of Certiorari is basically issued against the statutory bodies exercising judicial or quasi judicial powers. Such writ is issued against the authorities namely the government and the courts or other statutory bodies who have power to determine and decide the line between the parties. In deciding such issues if the decision making order is passed without any authority or has passed the order in exercise of such authority or has committed an error of law and facts the high court is empowered to correct such error of the lower court or government authorities. Certiorari may apply when the administrative or executive authority fails to observe their duty to act fairly with respect to the administrative functions. The writ of Certiorari may also be issued against a subordinate tribunal even if the decision impugned is pronounced. A leading case of Ryots of Garabandho v. Zamindar of Parlakimedi[footnoteRef:16] , was the first decision on the writ of Certiorari. [16: (1932) I.L.R. 56 Mad.]

Application of the Writ of MandamusThe writ of mandamus is ordered when the statutory authorities who entrusted with the duties fail to discharge its obligatory duty. It may be applied when the government authorities vested with absolute powers fail to perform their administrative and statutory duties. In Ratlam Municipal Council v. Vardichand[footnoteRef:17], on account of the public nuisance created in the area by the corporation in not maintaining the drainage system and the dirty water stinking had clogged around which obviously created nuisance at the hands of municipality for not discharging the duties under the act. As a result the residents of Ratlam municipality moved the Sub-divisional magistrate under section 133 of Code of Criminal Procedure, 1973 for abatement of nuisance and the court issued the directions that, Judicial discretion when facts for its exercise are present has a mandatory import. Therefore when the Sub-Divisional Magistrate, Ratlam, has before him information and evidence which disclose the presence of public nuisance, considers it lawful to remove such obstruction. This is a public duty implicit in the public power to be exercised on behalf of the public and is pursuant to public proceeding. [17: (1984) 4 SCC 162]

Lord Denning observed:In my opinion every genuine complaint which is worthy of investigation by the committee of investigation should be referred to that committee. The Minister is not at liberty to refuse it on grounds which are arbitrary or capricious. Not because he has a personal antipathy to the compliant or does not like his political views. Nor on any other irrelevant ground... It is said that the decision of the Minister is administrative and not judicial. But that does not mean that he can do as he likes, regardless of right or wrong. Nor does it mean that the Courts are powerless to correct him. Good administration requires that complaints should be investigated and that grievance should be remedied. When parliament has set up machinery for that very purpose, it is not for the Minister to brush it on one side. He should not refuse to have a complaint investigated without good reason... But it is said that the Minister is not bound to give any reason at all. And that, if he gives no reason, his refusal cannot be questioned. So why does it matter if he gives bad reason? I do not agree. This is the only remedy available to a person aggrieved Else why did it set up a committee of investigation? Minister would at least have good reasons for refusal; and if asked, he should give them. If he does not do so, the court may infer that he has no good reasons. If it appears to the Court that the Minister has been, or must have been, influenced by extraneous considerations which ought not to have influenced him or, conversely, has failed, or must have failed, to take into account considerations which ought to have influenced him. The court has power to interfere; it can issue a mandamus to compel him to consider the complaint properly.Application of the Writ of ProhibitionThe writ of Prohibition is issued essentially against the government or its authorities when they are not conferred with the power or jurisdiction to decide the dispute. The court by virtue of this power restrains the authority to exercise such powers which are not given to the authority.Application of the Writ of Quo WarrantoThe high Court would exercise the power of Quo Warranto against the public authority or government who acts contrary to the provisions of the statute and restrains the authority or public servant from usurping the public office on account of lack of qualification. It is a means of asserting sovereign right. In Sonu Sampat v. Jalgaon Borough Municipality[footnoteRef:18] , If the appointment of an officer is illegal, everyday that he acts in that office, a fresh cause of action arises and there can be therefore no question of delay in presenting a petition for quo warranto in which his very, right to act in such a responsible post has been questioned. [18: I.L.R 1958 Bom. 113]

Application of the Writ of Habeas CorpusThe writ of Habeas Corpus is a writ issued in order to protect the liberty and freedom which is conceived to be very vital. It is issued against the wrongful detention or confinement through the police authority. By virtue of this writ the police authorities or other such statutory authorities are empowered to bring the custody of the person who has been wrongfully detained by the court of law. In the case of State of Bihar v. Kameshwar Singh[footnoteRef:19] it was stated that, the writ of Habeas Corpus is in the nature of an order for calling upon the person who has detained or arrested another person to produce the latter before the court, in order to let court know on what ground he has been confined and to set him free if there is no legal justification for the imprisonment. One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of article 21 secured, is to mulct its violators in the payment of monetary compensation. [19: AIR 1952 Pat 417]

ConclusionThe prerogative powers of writ jurisdiction conferred by the constitution for judicial review of administrative action is undoubtedly discretionary and yet unbounded in its limits. The discretion however should be exercised on sound legal principles. In this respect it is important to emphasis that the absence of arbitrary power is the first essential of the rule of law upon which the whole constitution system is based. In a system governed by rule of law when discretion is conferred upon the executive authorities it must be based on clearly defied limits. Thus the rule of law from this point of view means that the discretion or the decision must be based on some principles and rules. In general the decision should be predictable and citizens should know where he is. If a decision is taken not on the basis of any principle or rules then such decision is arbitrary and is taken not in accordance with the rule of law.The law has reached its finest moments stated Duglas, C.J. in United States v. Wunderlich[footnoteRef:20] when it has freed man from the shackles of unlimited discretion. The man has suffered on account of absolute discretion. The decision should be guided by rule of law and it should not be based on whims, fancy and humor. [20: 342 U.S. 98 (1951)]

The Constitution is the law of the laws and nobody is supreme. Even the judges of Supreme Court are not above law and they are bound by the decisions which are the law of the land declared by them under the writ petitions. Thus, the constitutional remedies provided under the constitution operate as a check and keeps the administration of government within the bounds of law.

Private Law ReviewPrivate law review refers to powers of ordinary courts of the land, exercised in accordance with ordinary law of the land to control, administrative action. Private law review is exercised through injunction. Declaratory action and suit for damages. This non constitutional mode of judicial review of any administrative action n can be exercised by the civil and criminal courts, tribunals, special courts like the one constituted under the scheduled castes, schedule tribes (Prevention of Atrocities) Act, Consumer Courts and Environmental authorities, etc. In countries like the USA where the administrative process has grown tremendously, emphasis on writs as a strategy for the control of administrative acts is shifting in favor of more speedy and flexible remedies like injunction and declaration. This demonstrates the inherent virtue of private law review.The instrumentalities of private law review, being ordinary remedies, are free from technicalities of writ with regard to locus standi, nature of administrative authority and action. Private law remedies are broad based when compared with writs insofar as these allow production of evidence and examination of witnesses as a fundamental requirement for a decision. Private law review is cheaper and easily available. However, one difficulty with this kind of judicial review is the requirement of two months notice under section 80 of the code of civil procedure before any suit can be filed against the government. This created a difficulty where immediate injunctive relief was required. But after the amendment of section 80 of civil procedure Amendment Act, 1976, this difficulty ha been removed as courts have now been authorized to waive the requirement of notice in suitable case.a. InjunctionThe jurisdiction of Indian court to issue injunction is statutory. Section 36 to 42 of the Specific Relief Act,1963 govern the grant of injunctive relief. Injunction may be defined as an ordinary judicial process that operates in personam by which any person or authority is ordered to do or to refrain from doing a particular act which such person or authority is obliged to do or to refrain from doing under any law .the remedy is coercive but not rigid and can individual case. The court in its proceeding for injunction can review all action: judicial, quasi judicial, administrative, ministerial or discretionary. Temporary injunction is granted as an interim measure on an application by the plaintiff to preserve the status quo until the case is heard and decided. The grant of temporary injunction is governed by order 39 of the Civil Procedure Code, 1908Perpetual injunction is granted on the final determination of the case to prevent the infringement of those rights to which the plaintiff is entitled permanently. Under section 38 of the specific relief act, perpetual injunction may be granted to prevent the breach of an obligation existing in favour of the plaintiff either expressly or be necessary implication, or to prevent arising from contract, or to prevent the invasion of the right to, or enjoyment of the propertyInjunction will not grant: To restrain a person from instituting or prosecuting any judicial proceeding, civil or criminal; To restrain any person from petitioning to any legislative body; To prevent the breach of a contract which cannot be specifically enforced,i.e., service Contract

b. DeclarationDeclaration action may be defined as a judicial remedy conclusively determines the right and obligation of public and private person and authorities without addition of any coercive or directory decree.Conditions for the grant of declaratory reliefi. The person must be entitled to a legal character or to a right to an property- the term legal character is not in frequent use in legal drafting, but if interpreted in its wide connotation, may include every jural relationship of an individual which is recognised by law.

ii. There must be some danger or detriment to such right or character.- there must be some person or authority , public or private either interested in denying such character or right or must have actually denied it.

iii. Plaintiff must seek further relief if he is entitled to it.- this place a restriction on the power of the court to grant a mere declaration. in situation where the plaintiff is entitled to consequently relief and does not claim it, the court will not grant declaratory relief.[footnoteRef:21] [21: Qabool Singh v. Board of Revenue, AIR 1973 All 158]

c. Suit for injuctionWhenever any person has been wronged by the action of an administrative authority, he can file a suit for damage against such authority, he can file a suit for damage against such authority. Such a suit is filed in the civil court of first instances and its procedure is regulated by the Civil Procedure Code. The requirement of two months noticed is mandatory under section 80 of the amended Code before the filing the suit, unless it is waived by the court in special circumstances.

d. Affirmative action for the enforcement of public dutiesDuring the last few years, the supreme court of India has certainly developed a fine jurisprudence of right mobilization. Affirmative action for the enforcement of public duties is one of the areas where the genius of the Indian judiciary has been registered in a unique manner. It is a fact that judicial redress can more readily be available for wrongful acts than for wrongful omission of public bodies and the effectiveness of the judicial remedies is also limited either by their intrinsic characteristics or by restrictive technical rules.[footnoteRef:22] [22: De Smith: JUDICIAL REVIEW ADMINISTRATIVE ACTION , 1980, P. 526]

NON BINDING (ADIVORY) REVIEWThis kind of review of administrative action can be exercised by Human Right Commission, Lokayukta (Ombudsman), and various other statutory commissions like Women Commission, Child Commission, Minority Commission, Scheduled Caste and Tribes Commission, etc. Jurisdiction of these bodies is advisory but not without any effect. Sanction behind the advisory jurisdiction, over any administrative action, is public opinion which, in any democratic society, is the real sanction.