Grounds of Judicial Review: Abuse of Discretion

Ignoring a relevant consideration is as much a ground as taking an irrelevant one. If the Act requires the authority to have regard to the interests of existing operators and it did not, the decision is bad.

The weight given to a relevant consideration is for the authority, not the court. That is the line between review and appeal: the court checks that the right things were considered; it does not re-weigh them. Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899, holds that the court is not an appellate authority and may not direct or advise the executive on matters of policy.

Ground 3: mala fides

Mala fides is Latin for bad faith. It covers two things.

Malice in fact: a personal ill will, spite or dishonest motive on the part of the authority. Malice in law: acting knowingly for a purpose other than that for which the power was given, without any personal ill will. This is the commoner and more useful form, and it overlaps improper purpose.

Mala fides in the first sense is a serious allegation, must be specifically pleaded with particulars, and is hard to prove, because the person alleging it rarely has access to the file. A student answering a problem should reach for improper purpose or irrelevant considerations first, and plead mala fides only where the facts show personal animus.

Distinguish it from bias, treated in [The Rule Against Bias]: bias concerns an interest and is proved by position, without any allegation of dishonesty; mala fides concerns motive and is an allegation of dishonesty.

Ground 4: colourable exercise of power

Where the authority does indirectly what it may not do directly, or dresses up a decision as one thing when it is really another. A dismissal disguised as a compulsory retirement, or an acquisition for a public purpose which is in truth for a private one, is a colourable exercise. The expression fraud on the power is used for the same idea.

Ground 5: unreasonableness

The classical English formulation, from the Wednesbury case, is that a decision may be set aside if it is so unreasonable that no reasonable authority could ever have come to it. That is a deliberately high threshold: it is not enough that the court would have decided differently, or that the decision is unwise.

In India the ground is stronger, because of Article 14. Since arbitrariness is itself a violation of Article 14, an unreasonable administrative decision can be attacked as arbitrary without meeting the full Wednesbury standard. That is the effect of Maneka Gandhi v. Union of India, AIR 1978 SC 597.

Facts. A passport issued in June 1976 was impounded in July 1977 by an order under section 10(3)(c) of the Passports Act 1967 stating only that it was "in public interest". No hearing was given, and the Government declined to supply reasons, saying it was not in the interest of the general public to do so.

Held. Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment; equality and arbitrariness are sworn enemies, one belonging to the rule of law in a republic and the other to the whim and caprice of an absolute monarch. The principle of reasonableness pervades Article 14, and the procedure contemplated by Article 21 must answer the test of reasonableness in order to conform to Article 14, being right and just and fair and not arbitrary, fanciful or oppressive. Natural justice may be implied where the statute is silent, and there is no distinction between quasi-judicial and administrative functions for this purpose.

Why it matters here. It converts unreasonableness from a narrow common law ground into a constitutional one. An Indian lawyer attacking a discretionary decision pleads Article 14 arbitrariness, and the Wednesbury formula is used as an illustration of it rather than as the sole test.

Ground 6: no evidence, and mistake of fact

A finding reached with no material at all is not a finding, and a satisfaction formed on nothing is not a satisfaction. This is the practical answer to a statute that says "if the authority is satisfied": the court will not weigh the material, but it will ask whether there was any.

A mistake as to a jurisdictional fact, meaning a fact whose existence is a precondition of the power, is also reviewable, because an authority cannot give itself power by getting that fact wrong: [Administrative Discretion and Why It Is Conferred].

Ground 7: proportionality

Where the interference is out of proportion to the object, the decision may be set aside. In India this operates most strongly where a fundamental right is restricted. It has its own chapter: [The Doctrine of Proportionality].

The delegated legislation parallel

The same reasoning applies to rules as to decisions. A rule made for an improper purpose, on irrelevant considerations, in bad faith, or which is manifestly unjust or oppressive, is void, which is the substantive ultra vires discussed in [Judicial Control over Delegated Legislation]. The grounds are one family applied to two kinds of act.

A worked example

The Municipal Commissioner has power to "refuse permission for a procession where he is satisfied that it is likely to cause a breach of the peace". He refuses permission to the Shramik Union.

Take the possible reasons one at a time.

1. Because two rival groups have announced counter demonstrations along the route and the police report says violence is likely. Lawful. The statutory purpose is met and the satisfaction rests on material.
2. Because the Union criticised the Commissioner in the press last week. Improper purpose, and on these facts malice in fact as well. Void.
3. Because the Commissioner considered that processions inconvenience shopkeepers. Irrelevant consideration: the statute makes breach of the peace the criterion, not inconvenience. Void, unless inconvenience is shown to bear on the risk of disorder.
4. Because the Union's members are mostly of one community and the Commissioner thinks such processions "always cause trouble". Irrelevant consideration and arbitrariness under Article 14.
5. Because a minister telephoned and told him to refuse. Not abuse of discretion at all: it is acting under dictation, which is a failure to exercise discretion, and belongs to the next chapter.
6. Because the Commissioner had no report, no information and no material of any kind. No evidence: there was nothing on which to be satisfied.
7. He permits the procession but confines it to a lane 400 metres long at 6 a.m. Arguably a colourable exercise, granting in form and refusing in substance, and on the modern law disproportionate.

What beginners get wrong

Pleading mala fides as a first resort. It is the hardest ground to prove and the easiest to lose. Improper purpose and irrelevant considerations reach the same result without alleging dishonesty.

Confusing weight with relevance. That the authority gave little weight to something relevant is not a ground; that it did not consider it at all is.

Treating unreasonableness as an invitation to reargue the merits. The Wednesbury threshold is very high; in India the constitutional route through Article 14 is the more productive one.

Forgetting that the burden is on the challenger. Administrative action is presumed to be lawful and made in good faith.

Quick revision

1. Abuse of discretion: the power was used, but improperly.
2. Grounds: improper or ulterior purpose; irrelevant considerations taken or relevant ones ignored; mala fides, in fact or in law; colourable exercise, also called fraud on the power; unreasonableness; no evidence or mistake of a jurisdictional fact; disproportionality.
3. Purpose is found from the statute, not from what the authority believed. On mixed purposes ask which was dominant.
4. Weight is for the authority; relevance is for the court.
5. Malice in fact is personal ill will; malice in law is acting for a purpose other than that for which the power was given. Distinguish both from bias, which is about interest and implies no dishonesty.
6. Maneka Gandhi v. Union of India, AIR 1978 SC 597: Article 14 strikes at arbitrariness; equality and arbitrariness are sworn enemies. Unreasonableness in India runs through Article 14 as well as through the Wednesbury formula.
7. Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899: the court is not an appellate authority and will not substitute its view on policy.

Test yourself

1. State the grounds on which the exercise of administrative discretion may be reviewed for abuse. That the power was exercised for an improper or ulterior purpose, that is, a purpose other than the one for which the statute conferred it; that the authority took into account considerations the statute makes irrelevant, or failed to take into account considerations it makes relevant; that the authority acted in bad faith, whether from personal ill will, which is malice in fact, or by knowingly using the power for a purpose other than the statutory one, which is malice in law; that the exercise was colourable, doing indirectly what could not be done directly; that the decision was so unreasonable that no reasonable authority could have reached it, or, in India, was arbitrary and therefore contrary to Article 14; that it rested on no evidence at all, or on a mistake as to a jurisdictional fact; and that it was disproportionate to the object.

2. Distinguish malice in fact from malice in law, and both from bias. Malice in fact is personal spite, ill will or a dishonest motive on the part of the authority. Malice in law is the knowing use of a power for a purpose other than that for which it was conferred, without any personal animus; it overlaps improper purpose and is the more useful ground in practice, because it does not require proof of a state of mind directed at the individual. Bias is different from both: it concerns an interest, whether pecuniary, personal, subject matter, departmental or policy, is established by the decision maker's position rather than by his motive, and carries no imputation of dishonesty. Bias belongs to natural justice; mala fides belongs to the review of discretion.

3. Is it a ground of review that the authority gave insufficient weight to a relevant consideration? Ordinarily not. The court's function is to ensure that the authority considered what the statute required it to consider and excluded what the statute made irrelevant. The weight to be given to each relevant matter is for the authority, because to re-weigh them would be to decide the merits, and Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899, holds that in judicial review the court is not an appellate authority. Failure to consider a relevant matter at all is a ground; giving it little weight, without more, is not.

4. Explain unreasonableness as a ground of review in India. The classical English test is that a decision may be quashed only if it is so unreasonable that no reasonable authority could ever have come to it, a deliberately high threshold which excludes disagreement on the merits. In India the ground is reinforced by Article 14, because Maneka Gandhi v. Union of India, AIR 1978 SC 597, held that Article 14 strikes at arbitrariness in State action, that equality and arbitrariness are sworn enemies, and that the principle of reasonableness pervades Article 14. An arbitrary administrative decision is therefore unconstitutional without the challenger having to satisfy the full Wednesbury standard, and the English formula operates in India as an illustration of arbitrariness rather than as the only route.

5. A licensing authority refuses a licence because the applicant supported a rival political party. Advise. The refusal is liable to be quashed on several grounds at once. The statutory purpose of a licensing power is directed to matters such as the suitability of the applicant and the premises; the applicant's political affiliation is not among them, so the authority has taken into account an irrelevant consideration and has used the power for a purpose other than the one for which it was conferred, which is improper purpose and malice in law. If personal animosity is shown, malice in fact may also be pleaded, though it must be specifically alleged with particulars. The decision is in any event arbitrary and so contrary to Article 14 on the reasoning of Maneka Gandhi v. Union of India, AIR 1978 SC 597. The ordinary relief is certiorari quashing the refusal and a direction to decide the application afresh according to law, rather than an order that the licence be granted.