Judicial Review Of Administrative Action Research Articles

Judicial Control of Administrative Action in India through Writ of Quo-warranto

Abstract A comprehensive mechanism is available for judicial control of administrative action under the provisions of the Constitution of India, CPC, specific relief act etc. Firstly, it includes judicial review of administrative action under Articles 32 and 136 by the Supreme Court of India and under Articles 226 and 227 by the High Courts, Public Law Review and Private Law Review. Effective implementation of writ of quo-warranto is urgently needed as it is essential and significant to keep administration / public officials within their limits. Creation of an awareness claim of writ of quo-warranto is equally important. Quo-warranto is important to exercise control on public officials who are not performing their public duty reasonably and properly. It gives relief to the individuals against irregular administrative action. Writ of quo-warranto is crucial to keep administrative authorities within their limits which is the core object of administrative law. Indian judiciary has played crucial role in the effective implementation of writ of quo-warranto.

Understanding Judicial Review of Administrative Actions With Respect to the "Doctrine of Ultra Vires"

Understanding Judicial Review of Administrative Actions With Respect to the "Doctrine of Ultra Vires"

Judicial Review as Dialogical Accountability: Aotearoa New Zealand’s Supervisory Jurisdiction

Abstract This article explores the way judicial review of administrative action in Aotearoa New Zealand engenders a form of dialogical accountability; that is, a relational form of accountability as conceptualised by Bovens. In particular, the article explains the current practice and experience in a way attentive to its expressive character, highlighting the features of judicial review – both procedural infrastructure and substantive doctrinal norms – that foster and support this dynamic relationship of dialogue between actor and forum. The articular concludes with some reflections on the virtue of viewing judicial review in dialogical terms and implications for its place within the myriad of other accountability conversations operating within modern government in New Zealand.

The Emerging Concept of Administrative Action in India

The scope of judicial review of administrative action has been the central theme of discussion in administrative law. Initially common law countries including India adopted the doctrine of wednesbury reasonableness to review administrative action. But subsequently under influence of civil law systems and Strasburg jurisprudence the doctrine of proportionality is being gradually accepted as the standard of judicial review by the common law countries. There are two models of proportionality namely the British Model or the state limiting conception of proportionality and the European model or the optimizing concept of proportionality. Of the two the European model is more objective and hence preferred. The Indian Supreme Court accepted the doctrine of proportionality in the year 2000. Yet even today the Indian legal system has not come to terms with the doctrine. There is hardly any case where the doctrine has been practically applied. The need of the hour is to increasingly apply the doctrine of proportionality to review administrative action in India.

Judicial Review of Administrative Action Based on AI

Judicial Review of Administrative Action Based on AI

The duty to give reasons under Kenya’s Fair Administrative Action Act, 2015 in Kenya: Seven years later

Article 47 of the Constitution of Kenya 2010 has constitutionalised the right to be given written reasons for administrative actions and decisions. The same has been set out in Sections 4 and 6 of the Fair Administrative Action Act 2015. Based on the amber light and public administration theories, this paper argues that the right to be given reasons for decisions taken by administrative authorities has not only been used as a tool to offer legal protection to individuals adversely affected by administrative action but also helps in enhancing good public administration in Kenya. On the one hand, courts of law have considered the right to be given written reasons both as a constitutional ground for judicial review of administrative action under Article 47 of the Constitution and as a remedy available in judicial review as stated in Section 11 of the Fair Administrative Action Act. It has provided affected individuals with a basis to challenge an administrative action and decision through a judicial review process that not only preserves but also develops and progresses relevant common law principles. On the other hand, courts of law have viewed the right to be given written reasons as a tool aimed at enhancing public administration by ensuring that public administrators reflect on the lawfulness, quality, rationality, and fairness of their actions. However, the objective of Section 6 of the Fair Administrative Action Act may not be fully achieved because it does not expressly require public ad-ministrators to give adequate reasons to persons whose rights have been adversely affected by administrative action. Besides, it does not provide the criterion to be used to determine when the departure from the requirement to provide reasons for administrative actions is reasonable and justifiable.

Judicial Review and its Distinction with Appeal

Judicial Review is the basic and essential feature of the Indian constitutional scheme entrusted to the judiciary. The supremacy of the Indian Constitution is maintained in large part by judicial review. Additionally, it aids in preserving the harmony between the state’s three organs so that no law can be passed without being subject to review. Perhaps the most significant advancement in public law in the latter half of this century has been the judicial review of administrative action, and this paper focuses precisely on that. Judiciary review thus seeks to safeguard citizens from the misuse or abuse of authority by any branch of the state. This paper tries to cover the nuances of judicial review, like the grounds of judicial review, the doctrine of ultra vires, writs, and finally, its distinction with an appeal.

Institutional Values in Judicial Review of Administrative Action: Re-Reading Attorney-General (NSW) V Quin

Owing to its focus on statutory interpretation, judicial review of administrative action in Australia has been perceived to be ‘formalist’, particularly when compared with review in comparable nations such as England. This led Michael Taggart to characterise review in Australia as ‘exceptionalist’. The judgment of Brennan J in Attorney-General (NSW) v Quin, in which Brennan J emphasised the importance of courts remaining away from ‘the merits’ of administrative decision-making while exercising the supervisory jurisdiction has become closely associated with the view that review in Australia is rigid and formalist. In this article, I re-evaluate the judgment of Brennan J and place it in the context of its facts and of its time. This helps to reveal that the approach to judicial review of administrative action set out by Brennan J in Quin should not be seen as formalist. Rather, both Brennan J’s approach and the contemporary ‘statutory approach’ to judicial review can be seen as informed by values connected with what are understood to be the appropriate functions of each institution of government found within the Australian political system.

The State of the Art in Contemporary Administrative Law

This is a comment on Mark Aronson, Judicial Review of Administrative Action: Between Grand Theory and Muddling Through (2021) 28 AJAL 6. Three themes run through Professor Aronson's excellent essay: the tension between generality and specificity in administrative law (and a related, but distinct, tension between rules and standards); the role of apex courts in articulating general principles of administrative law and applying those principles in specific contexts; and the relationship between courts and academic commentators. I discuss these in turn before turning to what I consider to be an unarticulated theory underpinning Professor Aronson’s essay, suggesting (somewhat mischievously) that he is a legal antipositivist. In what follows, I first discuss generality and specificity (Part I), second, apex courts and administrative law (Part II) and, third, academics and administrative law (Part III) before concluding as promised/threatened with some more philosophical reflections (Part IV).

Leading Works in Public Law: de Smith’s Judicial Review of Administrative Action (Stevens & Sons, London, 1959)

In his classic text, Judicial Review of Administrative Action, Professor de Smith drew out from the prerogative writs a body of general principles relating to judicial review of administrative action. Published in 1959, de Smith’s book wove a principled pattern from disparate strands of jurisprudence. His landmark work set the scene for the development of a common law tapestry of judicial review of administrative action, which by the end of the century had definitively replaced the earlier patchwork quilt of case law. I begin with an introduction to the author of the text and a description of the 1959 text (“The Work”). Subsequently, I explain the background against which the text was written (“The Context). I then consider its importance in the development of contemporary administrative law (“The Significance”). I conclude by considering the evolution of Judicial Review of Administrative Action in the decades after its progenitor’s death and the evolution of the law of judicial review of administrative action (“The Legacy”). In both its creation and its evolution in the hands of others, Judicial Review of Administrative Action has been of central importance to the common law tradition of administrative law.

Who’s Afraid of Bob Jones?: “Fundamental National Public Policy” and Critical Race Theory in a Delicate Democracy

In Summer of 2021, Republican legislators across the United States introduced a host of bills to prohibit government funding for schools or agencies that teach critical race theory (“CRT”), described by the American Association of Law Schools not as a single doctrine but a set of “frameworks” to “explain and illustrate how structural racism produces racial inequity within our social, economic, political, legal, and educational systems[,] even absent individual racist intent.” Characterizing such an explicitly race-conscious analysis of legal and social institutions as “divisive,” opponents of CRT, such as former Vice President Mike Pence, labeled it “nothing short of state-sponsored and state-sanctioned racism.” The political campaign to “Stop CRT,” as articulated by strategist Christopher Rufo, seeks to redirect the time-honored civil-rights strategy of defunding racially discriminatory social institutions for use against race-conscious efforts to remedy the ongoing disparate racial, economic, and other social effects perpetuated by the same institutions. The movement to Stop CRT thus seeks to freeze civil rights progress where it stood decades ago, as when the Supreme Court acknowledged a “fundamental national public policy” against racial segregation in its 1983 decision in the notorious case of Bob Jones University v. United States, while leaving unresolved vital questions about whether and how to allocate public resources affirmatively to foster diversity, equity, inclusion, and accessibility in democratic society. In Bob Jones, the Court upheld the federal taxation of private schools that excluded Black students because their religious beliefs allegedly mandated “racial separation.” Specifically, the Court ruled that the Internal Revenue Service (IRS) properly withheld federal tax-exempt status to otherwise qualifying entities to enforce “fundamental national public policy” (“FNPP”), as expressed by all three branches of the federal government, against racial segregation in schools, and deemed desegregation a compelling government interest that outweighed any burden on religion. As a private tax dispute, Bob Jones stands alongside legions of other complaints brought by taxpayers aggrieved by IRS actions. But as a case involving an educational institution raising a religious liberty claim against antidiscrimination regulation, Bob Jones raised broader public law issues involving constitutional and federal statutory interpretation, as well as judicial review of administrative action. This article assesses the legal and symbolic influence of Bob Jones not to relitigate the case or to rewrite history, but to highlight the case’s lasting symbolic impact and lessons for future civil rights advocacy, especially as informed by CRTs that developed alongside the federal courts’ retreat from enforcing existing antidiscrimination norms. Part I examines the case of Bob Jones to show how its political and legal context shaped its unique posture and path to the Supreme Court. Part II examines the afterlife of Bob Jones and its symbolic importance to conservatives motivated to prevent its expansion, even as the decision limits its own impact by leaving crucial substantive questions unresolved: namely, the role of pluralism in enforcing civil rights against First Amendment claims, the viability of race-conscious remedies for racial discrimination, and the visibility of redistributive economic justice concerns. Finally, Part III shows how CRT’s insistence on confronting those same questions reveals persistent inequities sustained by U.S. social and legal institutions, drawing the fire of efforts to Stop CRT. Part III assesses the prospects for moving the difficult questions left unresolved in Bob Jones back to the center of analysis, even with the current Supreme Court in a polarized and partisan political climate. The Article ultimately concludes that the legal reorientation demanded by Bob Jones and initiated by critical theorists, whatever their fate in the Court’s jurisprudence in the near term, remains crucial for identifying and challenging ongoing power disparities in and through every level of democratic government and society.

Review Essay: The Dubious Morality of Modern Administrative Law by Richard Epstein

Philip Hamburger published Is Administrative Law Unlawful? in 2014. That book triggered responses by several famous scholars, including Gillian Metzger, Cass Sunstein and Adrian Vermeule, that attempted to justify and defend administrative law. Sunstein and Vermeule, in particular, published an article and then a book. They argued that administrative law is “moral,” using the approach of Lon Fuller’s classic work of legal philosophy The Morality of Law. Jumping into the fray, Richard Epstein has written an important new book, The Dubious Morality of Modern Administrative Law. Perhaps surprisingly, Epstein comes off as a bit of centrist, compared to the other authors writing on the topic. In his book Epstein propounds a positive thesis that the current structure of judicial review of administrative actions scrutinizes the agency choice of policy far more intensively than agency interpretation of law. Epstein also advances the normative thesis that this is backwards, and that courts should review agency interpretations of law de novo, while giving some deference to agency policy choice. I show that whereas Epstein’s normative claim may have some bite, his positive claim is unproven. Epstein’s analytical approach might be more interesting than his thesis but is also far more cumbersome. There are three core elements to his analytical style. First, as he explicitly states, he thinks the right way to do administrative law is to evaluate the substantive policy choices at issue. Second, when discussing adjudication or the role of guidance documents Epstein writes like a traditional administrative law scholar. He spends most of his words concentrating on process and fairness. But when Epstein discusses most other topics he sounds like a regulation scholar, approaching administrative law by considering in detail whether the administrative agency’s choice of a substantive regulation is good or not. Third, Epstein argues that when one evaluates a regulation to see whether it comports with the rule of law one should apply the eight criteria of legal morality from Lon Fuller’s work, augmented by the right to an unbiased decisionmaker and a right to be heard, plus the substantive values protected by the classical liberal legal order of contract, property, and protections against eminent domain, leavened with some measure of Burkean respect for administrative institutions that have operated successfully for decades. This approach allows Epstein to talk about almost everything when discussing the morality of administrative law. However, the huge number of moving parts in his methodology renders it both impossible to predict what Epstein will think about any particular case, and also wildly impractical for anyone else to use.

Book Review: <i>Judicial Review of Administrative Action Across the Common Law World: Origins and Adaptation</i> by Swati Jhaveri and Michael Ramsden, eds

Book Review: <i>Judicial Review of Administrative Action Across the Common Law World: Origins and Adaptation</i> by Swati Jhaveri and Michael Ramsden, eds

One Year of Vavilov

A year ago, in Canada (Citizenship and Immigration) v Vavilov, the Supreme Court of Canada fundamentally reshaped Canadian administrative law. Drawing on the approximately 1,500 cases in which this landmark decision has already been cited, I analyze how the Vavilov framework has been operationalized. In turn, I assess the implications of Vavilov for the application of the reasonableness standard, the selection of the standard of review and remedial discretion. Vavilov has made significant changes to the Canadian law of judicial review of administrative action. Reasonableness review is now characterized by justification, demonstrated expertise, responsiveness and contemporaneity. Many decision-makers long accustomed to deference are going to have to recalibrate their decision-making practices. Some deference persists on statutory appeals, as appellate courts classify issues within decision-makers' expertise as questions of mixed fact and law subject to the highly deferential standard of palpable and overriding error. Where, however, appeals are brought on questions of law or jurisdiction, there is much less scope for deference. In terms of remedial discretion, judges have largely been restrained in refusing to remit unreasonable decisions, though there are worrying signs of judicial activism in this regard. Overall, the roll-out of the Vavilov framework has been relatively smooth, with judges abiding by the spirit of Vavilov, that is, the simplification and clarification of Canadian administrative law.

Comparative Study on Judicial Review of Administrative Relations Between Center and State

As very well narrated by Indian Supreme Court Justice Syed Shah Mohammed Quadri “The essential difference between a government of despots and a government of democratically elected person is that in the former case, there are no limitations on the power or their exercise whereas in the latter case, the powers are defined and their exercise is regulated by law. In a democratic country like ours, governed by the rule of law, the principle is, ‘be thou so high the law is above you’” . Now with the advent of the rule of law, there has been an outburst of administrative actions or relations between the centre and the state. On the face of it, administration law can be imprecisely said to be a law for regulating governmental powers, however the fact of the matter is, to regulated the government powers within the prescribed limits of the federal structure of India and also to protects its citizen from the abuse from broad spectrum of authorities, be it judicial, quasi- judicial or administrative. In the current trend the fundamental purpose of administrative law is to see that those actions are not outside its scope of powers (ultra-vires). The research paper will analyze three different constitutions namely India, Canada & Australia and there expressed provision relating to administration relation between the center and state and its judicial review. This paper will analyze the given provision and power relating to the administrative relation and the grounds and procedure of judicial review of administrative action.

The Bullet-Proof Administrative Decision-Maker: Maximizing the Chances of Surviving a Judicial Review

To some, the law of judicial review of administrative action is complicated, challenging and ever-changing. It can seem like a trap for the unwary. It is hard enough for administrative decision-makers who have legal training to avoid being reversed on judicial review. It is harder for those without legal training. In this article, we hope to help Canadian administrative decision-makers by providing practical tips on how to minimize the chances of their decision being quashed on judicial review. In so doing, we hope to improve the standard of administrative decision-making generally — by and large, administrative decisions that withstand judicial review are more likely to be good administrative decisions.

Judicial Review of Administrative Action at National Level under the EU Charter of Fundamental Rights and General Principles of EU Law

This article aims to determine when the national authorities have the obligation to comply with EU fundamental rights, in the framework of administrative procedures carried out in the EU Member States. It also aims to determine the legal remedies available at national level in the context of judicial review in case of violation, by the national authorities, of EU fundamental rights guaranteed by the Charter of Fundamental Rights of the EU or as general principles of EU law. To this end, this study explains the impact of the legally binding EU Charter on public administration of the Member States and the field of application of the EU Charter at national level. The article also deals with the distinction between EU fundamental rights as primary EU law guaranteed by the EU Charter and EU fundamental rights as general principles of EU law. With reference to the judicial remedies available to national courts, the study outlines the effects of EU law (primacy of EU law, direct effect, direct application) in relation to the EU fundamental rights and the measures that can be adopted by the national courts when the action of the national administrative authorities is not compatible with EU fundamental rights. Finally, the article presents the most important findings concerning judicial protection of EU fundamental rights at the national level, especially from the perspective of the right to an effective remedy and to a fair trial stipulated by Article 47 of the EU Charter.

The Changing Legal Landscape

AbstractThe Willi Steiner Memorial Lecture 2019 was delivered at the British and Irish Association of Law Librarians’ Annual Conference by Brenda Hale, Baroness Hale of Richmond, DBE,1 the President of the Supreme Court of the United Kingdom. Lady Hale reflected upon some of the major changes in the law and access to justice since she was an undergraduate at the University of Cambridge and Willi Steiner was Law Librarian at the Squire Law Library. Her lecture coincided with BIALL's fiftieth anniversary year and focused on five significant developments: the explosion of judicial review of administrative action, the arrival of EU law, the growth of international human rights law, the recognition of gender and other equality, and devolution and the evolution of a new constitutional role for the courts.

Implied fetters on the exercise of discretionary contractual powers

Long-term commercial contracts commonly grant one of the parties a discretionary power to vary the contract in particular respects. In Australia, the exercise of discretionary contractual powers may be fettered by a general duty of good faith in contract performance. In England, the exercise of discretionary contractual powers may be fettered by a number of more specifi c implied duties. This paper considers the content of these duties. The paper argues that the substance of the duty of good faith implied by Australian courts is similar to the specifi c duties implied in England. It argues that the duties need not be unduly disruptive to commercial certainty or party autonomy. In fettering the exercise of discretionary contractual powers, courts have drawn on principles governing the judicial review of administrative action, namely requirements that a discretionary power should not be exercised for an ‘extraneous’ purpose or unreasonably. Moreover, Australian courts have repeatedly recognised that the implied duties fettering the exercise of discretionary contractual powers will not prevent parties from acting to preserve their legitimate interests. Courts have also been cautious in applying the duties to fetter the exercise of contractual powers to terminate.

A Typology of Materiality

The question of when an error will be sufficiently “material” to justify the quashing of a tainted decision has prompted some discussion and debate on the High Court of Australia in two important recent cases: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 and Hossain v Minister for Immigration and Border Protection [2018] HCA 34. This is a difficult issue, which causes conceptual confusion and obscures important underlying issues. By reference to material drawn from Australia, Canada, England, Ireland and New Zealand, I argue that there are three distinct types of materiality. First, materiality can be used to denote whether an error is sufficiently serious to count as jurisdictional. Second, materiality can be used to denote a causal link between the error complained of and the decision under review. Third, materiality can be used to denote judicial discretion to refuse relief. I suggest that distinguishing between these types facilitates clearer analysis and debate about the appropriate place of “material” error in judicial review of administrative action.