The Grounds of Judicial Review, Classified

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

1. Want or excess of jurisdiction, including a wrong decision on a jurisdictional fact.
2. Substantive ultra vires: the act is outside the power conferred.
3. Procedural ultra vires: a mandatory procedural condition was not observed.
4. 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.

1. Error of law, including an error apparent on the face of the record.
2. 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

1. Breach of the rule against bias.
2. Breach of the right to a fair hearing, including notice, disclosure, evidence and reasons.
3. Breach of a legitimate expectation of consultation or of a hearing.
4. Failure to observe a mandatory statutory procedure.

C. Irrationality, or the decision itself cannot be justified

1. Wednesbury unreasonableness.
2. Arbitrariness under Article 14.
3. Disproportionality, where a fundamental right or a punishment is in issue.
4. 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.