Broadly speaking, administrative action is subject to judicial review on three grounds, namely, (i) illegality (ii) irrationality and (iii) processual impropriety.
But this may be true of cases where the public authority has performed its public duty and the action is questioned. But where the allegation is that the public authority is guilty of non-performance of its public duty and it is shown that it has failed to perform its constitutional or statutory duty, can it be said that there is no remedy available through court and a mandamus cannot issue? In order, however, for a mandamus to issue to compel performance of a duty, it must clearly appear from the language of the statute that a duty is imposed, the performance or non-performance of which is not a matter of mere discretion. But even in cases where the duty is discretionary, as distinct from a statutory obligation, a limited mandamus could issue directing the public authority to exercise its discretion within a reasonable time on sound legal principles and not merely on whim.
Therefore, if the executive which is charged with a duty under the Constitution to undertake a periodical review of the judge-strength fails in the performance of that duty, an order of mandamus can lie to compel performance within a reasonable time. Therefore, in principle, it is not possible to say that the issue is wholly outside the Court’s purview and the remedy is merely to knock the doors of the legislature. Albeit, a proper foundation must be laid because the Court will be extreme1y slow in exercising its extraordinary powers to issue a writ of mandamus compelling performance of a certain duty unless it is fully satisfied that the executive has totally omitted to pay attention to its constitutional obligation and needs to be awakened from its slumber.
But in the guise of exercising the power of judicial review care must be taken to ensure, as pointed out by Tulzapurkar, J., that the judiciary does not usurp this executive function to itself. But as Tulzapurkar, J. warns no directive would be possible unless forced by glaring and compelling circumstances which would be possible only if full, complete and correct assessment of the requisite strength of each High Court is available and the court feels that the executive has been oblivious to the said facts. In the absence of judicially manageable standards this may not be possible, in which case the exercise of power would be in vain and normally a court does not act in vain. We are, therefore, of the opinion that if there is a wilful and deliberate failure on the part of the executive to perform its duty under Art. 216, a writ can issue to the limited extent of merely directing the executive to perform its part but the court cannot usurp the function itself and direct the executive to raise the judge-strength to any particular level[Supreme Court Advocates-on-Record Association and another Vs Union of India AIR 1994 SC 268]
Categories: Judicial Dictionary