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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. In Council of Civil Services Union v Minister of Civil Service the
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 and
more 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

the Constitution embody the principle of judicial review. Article 32 is included in Part III
as a fundamental right for enforcement of any of the fundamental rights conferred under
Part III. Generally, judicial review of any administrative action can be exercised on four
grounds viz,
a)

Jurisdictional Error

b)

Irrationality

c)

Procedural impropriety

d)

Proportionality

e) Legitimate Expectation
These grounds of judicial review were developed by Lord Diplock in Council of Civil
Service Union v. Minster of Civil Service[i]. Though these grounds of judicial review are
not exhaustive and cannot be put in watertight compartments yet these provide
sufficient base for the courts to exercise their review jurisdiction over administrative
action in the interest of efficiency, fairness and accountability.

Jurisdictional Error
The term jurisdiction means power to decide. The jurisdiction of the administrative
authority depends upon facts the existence of which is necessary to the initiation of
proceedings & without which the act of the Court is a nullity. These are called
jurisdictional facts. This ground of judicial review is based on the principle that
administrative authorities must correctly understand the law and it limits before any
action is taken. Court may quash an administrative action on the ground of ultra vires in
following situations.

Lack of Jurisdiction:
It would be a case of lack of jurisdiction where the tribunal or authority has no
jurisdiction at all to pass an order. Court may review an administrative action on the

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.
In Rafiq Khan vs. State of U.P[ii]., Panchayat Raj Act, 1947, did not empower the SubDivisional 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

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. InAttorney
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. In Syed
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

Non-consideration of relevant material:

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


disregard irrelevant matters. In R 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, he
may be said to have acted in bad faith. In R 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 councils decisions had been made in bad faith.
They had not been taken on educational grounds but were motivated by vindictiveness
towards 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. In H 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 ministers decision had been based solely on another ministers

objection. The minister, therefore, did not open hi mind to Lavenders application &
thereby fettered his discretion.

Irrationality (Wednesbury Test)


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 corporations 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.
In Roberts 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.
In R 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 hospitals
policy of conducting routine and random searches of patients without their consent was

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 hospitals 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 hospitals 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 in Neha 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

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.

Procedural Impropriety
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.
In Bradbury 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

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 persons 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.
In Pinochet case[xxi], extradition proceedings against the former Chilean Head of State
were 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

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 Ridges
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 in Ridge 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.

Proportionality
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.
In Hind 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

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.
In Sardar 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.
In Management 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.

Legitimate Expectations
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

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.
In R 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.
In R 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 governments 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.
In R.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.

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.

Conclusion
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.