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Control over administration actions: Is existing judicial mechanism strong enough?

There are many case references where it has been shown that administrative actions have been challenged by PIL. But there are some difficulties in controlling judicial actions by PIL.
Md. Mahabub Ul Alam Khan
Control over administration actions: Is existing judicial mechanism strong enough?

Administrative action is basically works for ensuring the rights of the people through the specific legal aspect of administrative law. The primary work of administrative law is to make a check and balance between the works of the governmental organs.

Functions of the governmental organs are executed by maintaining proper rules and regulations through the administrative law.

It is to be considered that the existing judicial mechanism is not strong enough to control the actions of the administrative authorities. Judicial control actually refers to the specific jurisdiction of the courts to ensure that public decision-makers act within their legal powers. When a public body acts beyond the powers conferred that is to be considered as acting ultra vires. But in Bangladesh, public law review is exercising through writs which have been mentioned under article 102 of the Constitution of Bangladesh and in case of private law, review is being exercised by an injunction, suit for damages and declaratory action under statutory laws. Nowadays, it has been seen that administrative actions are also being reviewed by the higher courts in the name of Public Interest Litigation (PIL) in our country.

In the early age, administrative actions are reviewed by writs under article 102 of the constitution. There are Writ of Habeas Corpus, Writ of Mandamus, Writ of Certiorari, Writ of Prohibition, Writ of Quo-warranto. By these five kinds of writs the administrative actions could be challenged but in a later time the procedure had been upgraded by the system of Public Interest Litigation or PIL. 

There are many case references where it has been shown that administrative actions have been challenged by PIL. But there are some difficulties in controlling judicial actions by PIL. In Bangladesh perspective, it seems to be very difficult to go through the grassroots of the cases and for that reason we cannot ensure social justice in many of the cases. There are many political involvements. Sometimes PIL doesn’t ensure justice for the actual party of the litigant. There is no other expert in the court who can find the actual fact.

In the case of Sultana Nahar vs. Bangladesh (1998) it has been found that the actual fact has not came out in the light. And the applicant had not got any remedy from the court. In that regard, it might be assumed that by filing writs and PIL it is not best expected way through which remedy for the victims might be ensured.

We have to introduce practicable doctrines which should have been included in the existing judicial mechanism for controlling administrative actions through judiciary. The doctrine of legitimate expectation basically focuses on a factor which works for the general civilians. Here the administrative authority needs to give explanation for any of its decision or act.

In Navjyoti Coop. Group Housing Society v. Union of India, Court has declared its decision on a later time on the basis of ‘doctrine of legitimate expectation’. So it should be exercised in our judicial control also. Though we have the doctrine in our judicial mechanism but there is no proper use of this doctrine.

Doctrine of proportionality basically refers that the punishment should be proportionate. Doctrine of proportionality is entirely applicable in constitutional decision where the court has to decide on the reasonable ground of a restriction on the exercise of fundamental rights. And its application in the sector of administrative law is still lying in an early stage.

Doctrine of public accountability refers that the administrative bodies have the accountability of their works and decisions, and they are also accountable to the public under this doctrine.

In the case of State of Bihar v. Subash Singh the court by applying the doctrine public accountability held that the Head of Department is ultimately responsible and accountable unless there are special circumstances absolving him of the accountability.

In conclusion, it might be observed that relevant doctrines have been introduced in our judicial mechanism but we are missing out the regular exercise of these doctrines. Because of that we have to face some difficulties in terms of judicial control over the administrative action. Proper and regular use of these doctrines with the writs and Public Interest Litigation will make our judicial mechanism stronger and including this, we may use case references which has been concluded with relevant judgment as precedent. 

The writer is a student of law at Daffodil International University.

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Published by the Editor on behalf of Independent Publications Limited at Media Printers, 446/H, Tejgaon I/A, Dhaka-1215.
Editorial, News & Commercial Offices : Beximco Media Complex, 149-150 Tejgaon I/A, Dhaka-1208, Bangladesh. GPO Box No. 934, Dhaka-1000.

Editor : M. Shamsur Rahman
Published by the Editor on behalf of Independent Publications Limited at Media Printers, 446/H, Tejgaon I/A, Dhaka-1215.
Editorial, News & Commercial Offices : Beximco Media Complex, 149-150 Tejgaon I/A, Dhaka-1208, Bangladesh. GPO Box No. 934, Dhaka-1000.

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