Rights-based review in administrative decisions
I. Introduction
A rights-based review of administrative decisions focuses on ensuring that individual rights and freedoms are respected when public authorities make decisions. It emphasizes the substantive impact of administrative action on human rights, not just the procedural correctness.
In countries like India and Australia (including Victoria/Melbourne), rights-based review is conducted through:
Constitutional rights (e.g., Part III of the Indian Constitution)
Human rights legislation (e.g., Charter of Human Rights and Responsibilities Act 2006 (Vic) in Victoria)
II. What Is Rights-Based Review?
Rights-based review examines whether:
Administrative actions comply with constitutional/human rights.
Authorities have considered the impact of their decisions on those rights.
Any limitation of rights is justified, proportionate, and necessary.
III. Principles of Rights-Based Review
| Principle | Explanation |
|---|---|
| Legality | The action must be authorised by law. |
| Compatibility | The action must be compatible with human/constitutional rights. |
| Proportionality | Any limitation of a right must be necessary and reasonable. |
| Accountability | Decision-makers must justify rights-infringing actions. |
| Transparency | Reasons must be given, especially when rights are affected. |
IV. Key Case Law on Rights-Based Review
Let’s explore 5 important cases that demonstrate how courts have enforced rights-based review in administrative law.
1. Maneka Gandhi v. Union of India (1978) 1 SCC 248 (India)
✅ Key Points:
Facts: Maneka Gandhi’s passport was impounded without providing reasons or a hearing.
Legal Issue: Does administrative action affecting liberty under Article 21 require fairness?
Held: Yes. Article 21 requires just, fair, and reasonable procedures. Also, Articles 14, 19, and 21 are interconnected.
Significance:
Pioneering case for substantive due process in India.
Rights-based review prevents arbitrary executive action.
Administrative decisions must respect fundamental rights.
2. DPP v Kaba [2014] VSC 52 (Victoria, Australia)
✅ Key Points:
Facts: Kaba was stopped by police without clear legal basis. He claimed his Charter rights were violated.
Legal Issue: Did the police act in a manner incompatible with the Charter of Human Rights and Responsibilities Act 2006 (Vic)?
Held: Yes. Administrative authorities (including police) must act compatibly with Charter rights unless lawfully limited.
Significance:
Confirmed that public authorities are bound by the Charter.
Promoted a rights-focused culture in administrative decision-making in Victoria.
3. Olga Tellis v. Bombay Municipal Corporation (1985) 3 SCC 545 (India)
✅ Key Points:
Facts: Municipal authorities evicted pavement dwellers without prior notice.
Legal Issue: Did this violate their right to life under Article 21?
Held: Yes. The right to livelihood is part of the right to life, and cannot be taken away without due process.
Significance:
Introduced socio-economic dimensions into rights-based review.
Administrative action affecting life/livelihood requires fair hearing and proportionality.
4. Kracke v Mental Health Review Board (2009) 29 VAR 1 (Victoria, Australia)
✅ Key Points:
Facts: Kracke’s involuntary mental health treatment was extended without timely review.
Legal Issue: Did the delay breach rights under the Victorian Charter?
Held: Yes. Delay in administrative review violated rights to liberty and fair hearing.
Significance:
Set a precedent for enforcing timely administrative processes.
Reinforced that tribunals must consider Charter rights when making or delaying decisions.
5. A.K. Gopalan v. State of Madras (1950) SCR 88 (India) – [Contrast Case]
✅ Key Points:
Facts: Gopalan was detained under preventive detention laws.
Held: Initially held that Article 21 only required procedure established by law, regardless of fairness.
Later Overruled: In Maneka Gandhi, the Court held that the procedure must also be fair and just.
Significance:
Demonstrates how the Indian judiciary shifted toward a rights-based approach from a purely legalistic one.
V. How Rights-Based Review Works in Practice
| Step | Explanation |
|---|---|
| 1. Identification of Right | Determine if a legal/constitutional/human right is involved. |
| 2. Impact Assessment | Assess how the administrative decision affects that right. |
| 3. Compatibility Check | Was the decision compatible with the right? |
| 4. Limitation Analysis | If the right is limited, is the limitation lawful, reasonable, and proportionate? |
| 5. Outcome | Decision may be quashed, modified, or upheld depending on the assessment. |
VI. Examples of Rights Commonly Reviewed
| Right | Jurisdiction | Example |
|---|---|---|
| Right to life and liberty | India (Art. 21) | Preventive detention, health care access |
| Right to fair hearing | India & Victoria | Evictions, license cancellations |
| Right to privacy | India (Puttaswamy case) | Surveillance, data collection by authorities |
| Right to equality | India (Art. 14), Charter (Vic) | Discriminatory administrative policies |
| Freedom of expression | India (Art. 19), Charter | Bans on protests, media censorship |
VII. Conclusion
Rights-based review ensures that administrative decisions are not only legal but also just, respecting the dignity, liberty, and fairness owed to every person. It strengthens accountability in governance and brings a human rights lens to public decision-making.
Both Indian and Victorian legal systems have gradually evolved toward stronger rights-based frameworks, with courts and tribunals acting as crucial protectors of individual freedoms.
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