The Grounds of Judicial Review, Classified
Chapter Forty-Eight
Syllabus topic 4, "Grounds of Review"
Pages 146 to 148 of 430
In one line
There are only about a dozen ways of attacking an administrative decision, and every one of them is a variation on three ideas: no power, unfair procedure, or an unreasonable result.
In the wording a student can write in an exam: the grounds of judicial review of administrative action may be classified under illegality, which includes want of jurisdiction, ultra vires and every abuse of discretion; procedural impropriety, which includes breach of natural justice and of mandatory statutory procedure; and irrationality, which includes Wednesbury unreasonableness and, in India, arbitrariness under Article 14 and disproportionality where a fundamental right is affected.
MU's question
This is the most frequently set essay in Module II. The University asks for the grounds of judicial review, sometimes generally, sometimes over administrative discretion, and sometimes through a quotation. The examiner is looking for a map first and detail afterwards, so the map is here and the detail is in the twenty chapters that follow.
The map
A. Illegality, or the decision-maker misunderstood the law that regulates his power
- Want or excess of jurisdiction, including a wrong decision on a jurisdictional fact.
- Substantive ultra vires: the act is outside the power conferred.
- Procedural ultra vires: a mandatory procedural condition was not observed.
- Abuse of discretion, which subdivides into:
- mala fides, that is malice in fact or in law;
- improper purpose and colourable exercise;
- irrelevant considerations, and ignoring relevant ones;
- non-application of mind;
- acting under dictation;
- fettering the discretion by a self-imposed rule;
- unlawful sub-delegation of the discretion.
- Error of law, including an error apparent on the face of the record.
- Violation of a fundamental right, which in India is a ground in its own right.
B. Procedural impropriety, or the decision-maker did not follow a fair procedure
- Breach of the rule against bias.
- Breach of the right to a fair hearing, including notice, disclosure, evidence and reasons.
- Breach of a legitimate expectation of consultation or of a hearing.
- Failure to observe a mandatory statutory procedure.
C. Irrationality, or the decision itself cannot be justified
- Wednesbury unreasonableness.
- Arbitrariness under Article 14.
- Disproportionality, where a fundamental right or a punishment is in issue.
- Failure to give reasons, which sits between B and C because an unreasoned order cannot be shown to be rational.
Where the classification comes from
Council of Civil Service Unions v. Minister for the Civil Service, [1985] AC 374, worked in [Illegality, Irrationality and Procedural Impropriety], where Lord Diplock grouped the grounds under illegality, irrationality and procedural impropriety and said that proportionality might be added in future. Indian courts use the same three heads and have added the fourth.
What is different about the Indian list
Article 14 does work no English ground does. Since E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555, arbitrariness is unconstitutional, so a great deal of what an English lawyer would have to squeeze into Wednesbury is in India a direct constitutional violation.
The Grounds of Judicial Review, Classified
Natural justice is constitutional. After Maneka Gandhi v. Union of India, AIR 1978 SC 597, procedure under Article 21 must be right, just and fair.
Proportionality arrived early for fundamental rights. The reasonable restrictions test in Article 19(2) to (6) is a proportionality test in all but name, and Modern Dental College and Research Centre v. State of Madhya Pradesh, decided on 2 May 2016, states the four steps expressly.
How to use the map in an answer
State the three heads. Give the sub-grounds under each. Take two or three and work them with a case. Then apply them to the facts if the question is a problem. An answer that lists fourteen grounds and works none of them scores badly; an answer that works three and shows it knows there are more scores well.
A worked example
A State refuses to renew a private bus operator's permit. The file shows that the decision was taken by the Transport Minister although the Act names the Regional Transport Authority; that no hearing was given; that a note records the Minister's wish to help a State corporation; and that the reason communicated is a single sentence saying the renewal is not in the public interest.
Illegality: the decision was made by an authority the Act did not empower, which is want of jurisdiction, and it was made under dictation so far as the Authority acted on the Minister's wish. Abuse of discretion: the purpose was to favour a competitor, which is improper purpose. Procedural impropriety: no hearing, and no adequate reasons on the authority of S.N. Mukherjee v. Union of India, AIR 1990 SC 1984. Irrationality: on those facts the decision is also arbitrary under Article 14 on Royappa. Four heads from one file, which is how a good answer is built.
What this does NOT mean
It does not mean the heads are watertight. They overlap constantly; a failure to consider a relevant matter is illegality and can also be irrationality.
It does not mean a ground must be pleaded by its name. But an answer, unlike a petition, is marked on the naming.
It does not mean there are no other grounds. Legitimate expectation, promissory estoppel and the duty to act fairly in contract are all doing work at the edges.
Quick revision
Three heads from the GCHQ case: illegality, procedural impropriety and irrationality, with proportionality added. Illegality covers jurisdiction, substantive and procedural ultra vires, the seven forms of abuse of discretion, error of law and violation of fundamental rights. Procedural impropriety covers bias, hearing, legitimate expectation and mandatory procedure. Irrationality covers Wednesbury, arbitrariness under Article 14, proportionality and want of reasons. The Indian additions are Article 14 arbitrariness, constitutionalised natural justice, and an early proportionality test for fundamental rights.
The Grounds of Judicial Review, Classified
Test yourself
1. Name Lord Diplock's three heads. Illegality, irrationality and procedural impropriety, with proportionality suggested as a possible fourth.
2. Name the seven forms of abuse of discretion. Mala fides, improper purpose, irrelevant considerations, non-application of mind, acting under dictation, fettering the discretion by a self-imposed rule, and unlawful sub-delegation.
3. What does Article 14 add to the English list? It makes arbitrariness itself unconstitutional after Royappa, so an arbitrary decision is void without needing to satisfy the very high Wednesbury threshold.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.