Judicial Review

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    Jaipur National University

    Seedling School of Law and Governance

    Administrative Law Project

    On

    Judicial Review of Administrative Action

    Submitted To: Miss Rachna Choudhary (Faculty of Law)

    Submitted By: Abha BALLB (5th

    sem.)

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    Meaning

    Judicial review is a courtspower 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

    validity

    The 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.1

    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 view2.

    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.3

    1

    Indian Railway Construction Co. Ltd .V. Ajay Kumar,(2003) 4 SCC 5792 Karnataka Bank Ltd .v. State of A.P., (2008) 2 SCC 254

    3DDA v. Joint Action Committee, Allotment of SFS Flats,(2008) 2SCC 672.

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    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 cour t in exercising the power of judicial r eview is thus to conf ine itself to

    the following questions4

    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 havereached?

    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.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.6

    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 thatregulates 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 ofaccepted moral standards that no sensible person could have arrived at such a decision.

    4

    (1994)6 SCC 651,676.5Haryana Development authority v. Roochira Ceramics,(1996)6 SCC 584.

    6B. C. Chaturvedi v. Union of India,(1995)6 SCC 749.

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    Procedural impropriety: This means that the procedure for taking administrative decisionand action must be fair, reasonable and just.

    Proportionality: This means in any administrative decision and action the end and meansrelationship must be rational.

    Unreasonableness: This means that either the facts do not warrant the conclusion reachedby 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.7Against this

    backdrop the policy decision of the government is not the subject of judicial review unless it

    is unreasonable or against public interest.8

    Judicial review of Administrative Action: Mode

    Public 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.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.

    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.

    7

    Tata Cellullar v. Union of India,(1994) 6 SCC 651,677-678.8State of U.P. v. U.P> University colleges pensioners Assn., (1994) 2 SCC 729.

    9(1980) 4 SCC 382

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    Certiorari

    Certiorari 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 India10, 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.

    Prohibition

    The 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 Customs11, 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.

    Mandamus

    Mandamus 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 1573wherein a citizens franchise was restored. The writ of mandamus can be issued

    10(1969)2 SCC 262

    11AIR 1962 SC 1893

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    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 Warranto

    Quo 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 Rao12

    ,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.

    Habeas Corpus

    The Latin term Habeas Corpus means have the body. The incalculable value of h abeas

    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

    India13, 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.

    121964 SCR (4) 576

    13(1980) 4 SCC 531

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    Jabalpur v. Shivakant Shukla14

    , 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.

    Role of writs in administrative actions

    Now 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 lawon 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 thesetwo 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

    14(1976) 2 SCC 521

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    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 case15:..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.

    Application of the Writ of Certiorari

    The 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 between15

    (1968) 1 ALL ER 694

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    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 Parlakimedi16,

    was the first decision on the writ of Certiorari.

    Application of the Writ of Mandamus

    The writ of mandamus is ordered when the statutory authorities who entrusted with the dutiesfail 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. Vardichand17, 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, 1973for 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.

    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

    16(1932) I.L.R. 56 Mad.

    17(1984) 4 SCC 162

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    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 Prohibition

    The writ of Prohibition is issued essentially against the government or its authorities whenthey 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 Warranto

    The 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 Municipality18,

    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.

    Application of the Writ of Habeas Corpus

    18 I.L.R 1958 Bom. 113

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    The 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

    Singh19

    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.

    Conclusion

    The 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.

    Wunderlich20when 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.

    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

    19AIR 1952 Pat 417

    20342 U.S. 98 (1951)

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    the constitution operate as a check and keeps the administration of government within the

    bounds of law.

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    Private Law Review

    Private 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 thecode 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.

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    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, 1908

    Perpetual 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

    property

    I njunction will not grant:

    To restrain a person from instituting or prosecuting any judicial proceeding, civil orcriminal;

    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 relief

    i. The person must be entitled to a legal character or to a right to an property- theterm 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 detr iment to such r ight or character.-there must besome person or authority , public or private either interested in denying such character

    or right or must have actually denied it.

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    iii. Plainti ff must seek fur ther r eli ef i f he is enti tled to it.-this place a restriction on thepower 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.21

    c. Suit for injuctionWheneverany 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.22

    21Qabool Singh v. Board of Revenue, AIR 1973 All 158

    22De Smith: JUDICIAL REVIEW ADMINISTRATIVE ACTION , 1980, P. 526

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    NONBINDING (ADIVORY) REVIEW

    This 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.