Judicial Review Grounds

8/18/2019 Judicial Review Grounds

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Grounds Of Judicial Review

Judicial Review is the power of the Supreme Court or High Court to examine an

executive or legislative act and to invalidate that act if it is contrary to constitutional

principles. This power has been incorporated in the Constitution itself and cannot be

done away with since it is a basic feature. The researcher has analysed the ground of

judicial review. Though there is no clarity regarding the same through an analysis of

case law the researcher has attempted to arrive at certain accepted basis for such a

review to take place. InCouncil of Civil Services Union v Minister of Civil Servicethe

grounds of judicial review were stated to be jurisdictional error, irrationality, procedural

impropriety, proportionality and legitimate expectation. Jurisdictional errors are subject

to review in cases when there is a lack of jurisdiction, excess of jurisdiction or an abuse

of jurisdiction. If an administrative action appears to be irrational and satisfies the

Wednesbury Test that evolved after the case of Associated Provincial Picture House v.

Wednesburythen it can be reviewed. An action that is not in compliance with procedures

and which is not reasonable, goes beyond what is desirable can be reviewed. Lastly, if a

certain law leads to the birth of a legitimate expectation in the mind of a person which is

subsequently breached then the action leading to such a breach can be reviewed.

Relevant case laws have been used to shed light on how this concept has evolved andmore specifically they also provide clarity regarding in what circumstances such

discretion can be exercised. The research paper finally goes on to acknowledge that

such a power can be dangerous as no checks can be imposed upon it other than self

imposed discipline.

Introduction

In recent times, many administrative decisions taken by the Government are being

struck down either on avoidable grounds of illegality or procedural irregularity or some

other grounds which could have been validly averted. Judicial review is the basic feature

of the Indian Constitution and therefore, cannot be abrogated even by an amendment of

the Constitution. It is incorporated in Articles 226 and 227 of the Constitution insofar as

the High Courts are concerned. In regard to the Supreme Court Articles 32 and 136 of


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ground that the authority exercised jurisdiction which did not belong to it. This review

power may be exercised inter alia on following grounds:

i) That the law under which administrative authority is constituted and exercising

jurisdiction is itself unconstitutional.

ii) That the authority is not properly constituted as required by law.

iii) That the authority has wrongly decided a jurisdictional fact and thereby assumed

jurisdiction which did not belong to it.

InRafiq Khan vs. State of U.P[ii]., Panchayat Raj Act, 1947, did not empower the Sub-

Divisional Magistrate to modify the order of conviction & sentence passed by a

Panchayat Adalat. He could either quash the entire order or cancel the jurisdiction of the

Panchayat Adalat. The magistrate maintained the conviction of the accused in respect of

one of the offences only & quashed the conviction in respect of other offences. The

Allahabad High Court quashed the conviction in respect of other offences by a writ of

certiorari.

In R. vs. Minister of Transport[iii], the Minister had no power to revoke a license. The

order of the minister revoking the license, was thus, held to be passed without

jurisdiction & hence ultra vires.

Excess of Jurisdiction:

This covers a situation wherein though authority initially had the jurisdiction but

exceeded it and hence its actions become illegal. This may happen under following

situations:

i) Continue to exercise jurisdiction despite occurrence of an event ousting

jurisdiction.

ii) Entertaining matters outside its jurisdiction.

In R vs. Richmond upon Thames Council ex parte McCarthy & Stone Ltd[iv]., the local

planning authority implemented a scheme of charging 25 pound for informal


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consultation between corporation officers & property developers. The House of Lords

held that imposition of the charge was unlawful. Such a charge was neither incidental to

the planning function of the local authority, nor could a charge be levied on the public

without statutory authority. The council had misconstrued its powers & accordingly,

acted ultra vires.

Abuse of Jurisdiction:

All administrative powers must be exercised fairly, in good faith for the purpose it is

given, therefore, if powers are abused it will be a ground of judicial review. In the

following situations abuse of power may arise:

• Improper purpose:

Administrative power cannot be used for the purpose it was not given. In Attorney

General vs. Fulham Corporation[v], the authority was empowered under the statute to

establish washhouses for the non-commercial use of local residents. The Corporation

decided to open a laundry on a commercial basis. The Corporation was held to have

acted ultra vires the statute.

• Error apparent on the face of the record :

An error is said to be apparent on the face of the record if it can be ascertained merely

by examining the record & without having to have recourse to other evidence. InSyed

Yakoob vs. K.S. Radhakrishnan[vi], the Supreme Court explained, there would be a

case of error of law apparent on the face of the record where the conclusion of law

recorded by an inferior tribunal is:

1.Based on an obvious misinterpretation of the relevant statutory provision,

2.In ignorance of it,

3.In disregard of it,

4.Expressly founded on reasons which are wrong in law


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• Non-consideration of relevant material:

In exercising discretion, a decision-maker must have regard to relevant matters &

disregard irrelevant matters. InR vs. Somerset County Council, ex p Fewings[vii] the

local authority decided to ban stag hunting on land owned by the council & designated

for recreational purposes. The Court of Appeal accepted that in some circumstances,

stag hunting could legitimately be banned. Animal welfare & social considerations were

relevant matters to take into account.

• In bad faith:

Where a decision –maker has acted dishonestly by claiming to have acted for a

particular motive when in reality the decision was taken with another motive in mind, hemay be said to have acted in bad faith. InR vs. Derbyshire County Council, ex p Times

Supplements[viii], the local education authorities were under a duty to advertise

vacancies in a manner likely to bring it to the notice of persons who are qualified to fill

the post. Articles published in that paper were critical of the education authority. The

council decided to stop advertising vacancies in The Times despite the fact that these

publications were read by the greatest number of potential applicants. The papers

sought judicial review. DC held that the council’s decisions had been made in bad faith.

They had not been taken on educational grounds but were motivated by vindictivenesstowards the paper.

• Fettering discretion:

An authority may act ultra vires if, in the exercise of its powers, it adopts a policy which

effectively means that it is not truly exercising its discretion at all. InH Lavender & Sons

Ltd vs. Minister of Housing & Local Government[ix], Lavender had applied for planning

permission to extract sand & gravel from high grade agricultural land. The local planning

authority refused permission & lavender applied to the Minister of Housing & Local

Government. The appeal was dismissed; the Minister of Housing & Local Government

being persuaded by the Minister of Agriculture that such land should be preserved for

agricultural purposes. The decision was set aside. The minister was entitled to have a

policy but, in reality the minister’s decision had been based solely on another minister’s


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objection. The minister, therefore, did not open hi mind to Lavender’s application &

thereby fettered his discretion.

Irrationality (Wednesbury est!

A general principle which has remained unchanged is that discretionary power

conferred on an administrative authority is required to be exercised reasonably. A

person in whom is vested a discretion must exercise his discretion upon reasonable

grounds. A decision of the administrative authority shall be considered as irrational if it is

so outrageous in its defiance to logic or accepted norms of moral standard that no

sensible person, on the given facts and circumstances, could arrive at such a decision.

Irrationality as a ground of judicial review was developed by the Court in Associated

Provincial Picture House v. Wednesbury[x], later came to be known as “Wednesbury

test” to determine ‘irrationality’ of an administrative action. The local authority had the

power to grant licenses for the opening of cinemas subject to such conditions as the

authority ‘thought fit’ to impose. The authority, when granting a Sunday licence, imposed

a condition that no children under the age of 15 years should be admitted. The

applicants argued that the imposition of the condition was unreasonable and ultra

viresthe corporation’s powers. Stating that the Court should not substitute its view for

that of the corporation the court observed: interference would not be permissible unless

it is found that the decision was illegal or suffered from procedural improprieties or was

one which no sensible decision maker could, on the material before him and within the

framework of law, have arrived at it. The Court would consider whether relevant matters

were not taken into account or whether the action was not bona fide or whether the

decision was absurd.

InRoberts vs. Hopwood[xi], the council, in adopting a policy of paying higher wages

than the national average for its workers, was unreasonable, for the discretion of the

council was limited by law. It was not free to pursue a socialist policy at the expense of

its rate payers.

InR v Broadmoor Special Hospital Authority ex parte S[xii], the Court of Appeal,

dismissing an appeal from an application for judicial review, ruled that the hospital’s

policy of conducting routine and random searches of patients without their consent was


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lawful. The applicants had claimed that the power to search could not be implied into the

Mental Health Act 1983, and that, if such power existed, it was irrational and its exercise

unlawfully fettered the hospital’s discretion because it was not subject to any exception

or medical grounds. The Court of Appeal upheld the finding of an implied power of

search, ruling that it was consistent with a ‘self-evident and pressing need’ to enable the

hospital to fulfill its primary function of treating patients and ensuring a safe and

therapeutic environment for both patients and staff. Since the hospital’s policy was in the

interests of all, it had to be permitted to override medical objections raised in individual

cases.

A decision by an authority may also be unreasonable if conditions are attached to the

decisions which are difficult or impossible to perform.Where an authority makes a

decision which is in part good, but in part bad the court may either invalidate the entire

decision or sever the bad part of the decision from the good.

The decision in Agricultural Horticultural and Forestry Industry Training Board v

Aylesbury Mushrooms Ltd[xiii] illustrates the principle. There, the Training Board was

under a mandatory statutory duty to consult certain organizations and trades unions

before reaching a decision. The Board failed to consult the Mushroom Growers

Association. The court held that the decision was good, and could remain, in relation to

those associations which had been consulted, but bad in relation to the Mushroom

Growers Association, and that the Board had a duty to reconsider their decision after

consultations with the Association. In applying this test court would not apply ‘strict

scrutiny’ and would not judge adequacy or sufficiency of the material unless

fundamental rights are violated, and would not substitute its judgment with the judgment

of the administrator unless the decision is perverse. If the action of the administrative

authority violates any of these principles court can quash such action as violative of

Articles 14, 19 or 21 of the Constitution.

The Delhi High Court inNeha Jain vs. University of Delhi[xiv], holding that that

cancellation of examination & debarring the student for next exams as disproportionate

punishment for adopting unfair means in the examination, substituted cancellation of

only one paper as sufficient punishment Since the basic requirement of article 14 is


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fairness in action of the State, and non-arbitrariness in essence and substance, being

the heart of fair play, judicial interference with policy decision is permissible:

• If the decision is shown to be patently arbitrary, discriminatory or mala fide[xv].

• If it is found to be unreasonable or violative of any provision of the Constitution or

any other Statute[xvi].

• If it can be said to suffer from any legal infirmity in the sense of its being wholly

beyond the scope of the regulation-making power[xvii].

• If it is demonstrably capricious or arbitrary & not informed by any reason[xviii].

Irrationality applied to a decision which is so outrageous in its defiance of logic that no

sensible person who had applied his mind to the question to be decided would have

arrived at it.

"rocedural I#$ro$riety

Failure to comply with procedures laid down by statute may invalidate a

decision.Procedural Impropriety is to encompass two areas: failure to observe rules laid

down in statute; and a failure to observe the basic common law rule of natural justice.InBradbury v Enfield London Borough Council [xix], the Education Act 1944 provided

that, if a local education authority intends to establish new schools or cease to maintain

existing schools, notice must be given to the minister, following which, public notice must

be given in order to allow interested parties to comment. The Council breached the

requirement of public notice and the plaintiffs sought an injunction. The Council claimed

that educational chaos would occur if they were required to comply with the procedural

requirements. That plea met with little sympathy in court.

In the Aylesbury Mushroom case[xx], the court ruled that the statutory requirements of

consultation with organizations or associations which represented substantial numbers

of people could not be avoided by consultation with the largest representative body of all

agricultural horticultural and forestry industry, workers – the Nation Farmers’ Union. The

Board claimed that consultation with the Nation Farmers’ Union involved consultation


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with all smaller representative bodies; a claim rejected by the court. For true

consultation to take place in accordance with law there must be communication with the

representative organizations and the opportunity given of responding thereto, without

which ‘there can be no consultation’. In Aylesbury Mushroom, the Mushroom Growers

Association was not bound by the order, although the order remained effective as

against those who were consulted. It is a fundamental requirement of justice that, when

a person’s interests are affected by a judicial or administrative decision, he or she has

the opportunity both to know and to understand any allegations made, and to make

representations to the decision maker to meet the allegations. The principles of natural

justice which are imposed by the courts comprise two elements:

• Audi alteram partem (hear both sides)

• Nemo judex in causasua (there should be an absence of bias with no person

being a judge in their own cause).

The essence of justice lies in a fair hearing. The rule against bias is strict: it is not

necessary to show that actual bias existed; the merest appearance or possibility of bias

will suffice. The suspicion of bias must, however, be a reasonable one.

InPinochet case[xxi], extradition proceedings against the former Chilean Head of Statewere challenged on the basis that one of the Law Lords, Lord Hoffmann, had links with

Amnesty International, the charitable pressure group which works on behalf of political

prisoners around the world, which had been allowed to present evidence to the court. It

was accepted that there was no actual bias on the part of Lord Hoffmann, but there

were concerns that the public perception might be that a senior judge was biased. As a

result, the proceedings were abandoned and reheard by a new bench of seven judges.

The courts have long been struggling with the distinction between ‘judicial’ and

‘administrative’ functions in an attempt to bring the ever- expanding administration of

government departments under judicial control. Two lines of thought were apparent. The

first emphasized the distinction between a body which was exercising powers under

restrictive rules and a body which was conferred with a wide measure of administrative

discretionary power. The second line of thought placed great weight on the absence of


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any true distinction between judicial and administrative functions, regarding the former

as but a specialized form of the latter.

Ridge v Baldwin [xxii]represents a classic case which reveals judicial insistence on

procedural fairness irrespective of the type of body determining a question. Ridge, the

Chief Constable of Brighton, had been suspended from duty following charges of

conspiracy to obstruct the course of justice. Despite Ridge having been cleared of any

allegations against him, the Judge made comments which were critical of Ridge’s

conduct. Subsequently, Ridge was dismissed from the force. Ridge was not invited to

attend the meeting at which the decision to dismiss him was reached, although he was

later give an opportunity to appear before the committee which confirmed its earlier

decision. Ridge appealed to the Home Secretary, who dismissed his appeal. Ridge then

sought a declaration that the dismissal was ultra vires, on the basis that the committee

had violated the rules of natural justice. The decision inRidge v. Baldwin is also

important because it emphasizes the link between the right of a person to be heard and

the right to know the case brought against them.

"ro$ortionality

Proportionality means that the administrative action should not be more drastic than it

ought to be for obtaining desired result. Proportionality is sometimes explained by the

expression ‘taking a sledgehammer to crack a nut’. Thus this doctrine tries to balance

means with ends. Proportionality shares space with ‘reasonableness’ and courts while

exercising power of review sees, ‘is it a course of action that could have been

reasonably followed’. Courts in India have been following this doctrine for a long time but

English Courts have started using this doctrine in administrative law after the passing of

the Human Rights Act, 1998. Thus if an action taken by the authority is grossly

disproportionate, the said decision is not immune from judicial scrutiny. The sentence

has to suit the offence & the offender. It should not be vindictive or unduly harsh.

InHind Construction Co. vs. Workmen[xxiii], some workers remained absent from duty

treating a particular day as holiday. They were dismissed from service. The industrial

tribunal set aside the action. This court held that the absence could have been treated

as leave without pay. The workmen might have been warned and fined. The Court said


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that it was impossible to think that any reasonable employer would have imposed the

extreme punishment of dismissal on its entire permanent staff in this manner. The court

explained that the punishment imposed the workmen was not only severe but out of

proportion.

InSardar singh vs. Union of India[xxiv], a jawan, serving in the Indian Army was granted

leave. While going to his home town, he purchased 11 bottles of rum from the Army

canteen, though he was entitled to carry only 4 bottles. In the Court Martial proceedings

instituted against him on that ground, he was sentenced to undergo R.I. for 3 months

and was also dismissed from service. The Supreme Court set aside the punishment &

held the action taken against the appellant as arbitrary & punishment as severe. The

doctrine of Proportionality is an important principle. It enables the Courts to check the

possible abuse of discretionary power by the Executive. Though there is much common

substance in the principles of Irrationality & Proportionality, the latter however, requires

the Court to judge whether the action taken was really needed as well as whether it was

within the range of courses of action that could reasonably be followed.

InManagement K. Tea Estates vs. Mazdoor Sangh[xxv], the workmen of the tea

estates, alleged to have entered the estate armed with deadly weapons with a view to

gherao the Manager & others in regard to their demand for bonus, caused damage to

property of the estate & wrongfully confined the Manager & others. Punishment of

dismissal of concerned workmen de hors the allegation of allegation of extortion was

held to be not disproportionate to the misconduct proved against them.

The Supreme Court has always maintained that it would employ the doctrine of

Proportionality to test the validity of an administrative action only when the Fundamental

Rights of the aggrieved person are disproportionately violated by the administrative

authority.

Le%iti#ate Ex$ectations

A legitimate expectation will arise in the mind of the complainant wherever he or she has

been led to understand — by the words or actions of the decision maker – that certain

procedures will be followed in reaching a decision. A Legitimate Expectation amounts to


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an expectation of receiving some benefit or privilege to which the individual has no right.

Legitimate Expectation means expectation having some reasonable basis. The doctrine

of Legitimate Expectation has evolved to give relief to the people when they are not able

to justify their claims on the basis of law in the strict sense of the term they had suffered

civil consequences because their legitimate expectation has been violated. Two

considerations apply to legitimate expectations. The first is where an individual or group

has been led to believe that a certain procedure will apply. The second is where an

individual or group relies upon a policy or guidelines which have previously governed an

area of executive action.

InR v Liverpool Corporation ex parte Liverpool Taxi Fleet Operators Association[xxvi],

the corporation had given undertakings to the taxi drivers to the effect that their licenses

would not be revoked without prior consultation. When the corporation acted in breach

of this undertaking, the court ruled that it had a duty to comply with its commitment to

consultation. A public body may act in a manner which creates an expectation in the

mind of a person or body.

InR v Secretary of State for Health ex parte U Tobacco International Inc.[xxvii], the

company had opened a factory in 1985 with a govt. grant, for the production of oral

snuff. The government made the grant available notwithstanding its awareness of the

health risks of the product. In 1988, however, the government — having received further

advice from a committee — announced its intention to ban snuff. The company sought

judicial review, relying on a legitimate expectation based on the government’s action.

The court ruled, however, that, even though the applicant had a legitimate expectation,

that expectation could not override the public interest in banning a harmful substance.

InR.P. Singh vs. State of Bihar[xxviii], the Supreme Court explained that the expression

“established practice” referred to a regular, consistent, predictable & certain conduct,

process or activity of the decision-making authority. The expectation should be

legitimate i.e. logical, reasonable & valid. The doctrine of legitimate expectation would

apply in cases where the decision taken by the authority is found to be arbitrary,

unreasonable & not taken in public interest. Change in policy however, can defeat the

legitimate expectation. In such a case, even by the way of change of old policy, the

Courts would not intervene with the decision.


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In Jatinder Kumar vs. State of Haryana[xxix], the Court held that the Government had a

right to review the decisions taken by the previous establishments & hence it could

suspend the process of recruitment started by previous Government, because of

allegations of irregularities & this could not be challenged on the ground of violation of

legitimate expectation.

&onclusion

Judicial review is a powerful weapon to restrain unconstitutional exercise of power by

the legislature and executive. The expanding horizon of judicial review has taken in its

fold the concept of social and economic justice. While exercise of powers by the

legislature and executive is subject to judicial restraint, the only check on our own

exercise of power is the self-imposed discipline of judicial restraint. Mere possibility of

another view cannot be a ground for interference. Therefore, courts will not interfere

unless the decision suffers from illegality, irrationality, procedural impropriety and

proportionality deficiency. Mere assertion of these ground is not sufficient, each ground

must be proved by evidence on record. Asserting the power of judicial review, the court

emphasized that the doctrine of immunity from judicial review is restricted to cases or

class of cases which relate to deployment of troops and entering into international

treaties etc. in policy matters and where subjective satisfaction of the authority is

involved, court will not interfere unless the decision is totally perverse and violates any

provisions of the Constitution. If proper care is taken at the level of making

administrative decisions, there will be little scope for grievance and invoking courts’

jurisdiction. This will not only reduce the burden on courts but will also create a sense of

security and satisfaction in people which is the essence of good governance and

foundation of a welfare State.

Documents

Judicial Review Grounds