The executive, in modern governance, performs significant functions in making laws and disposes of administration matters. To overcome rising complexity and volume of legislative activity, the law-making jurisdiction of the legislature has often been delegated to the executive. Under such delegation, discretionary power has also been vested with the executive. One of the possible mechanisms to contain this discretion of the executive is judicial control i.e. the doctrine where courts have the power to review and scrutinise any action or ruling of other organs of the government.1 However, the exercise of this power to review is not absolute. InCouncil of Civil Services Union v. Minister of Civil Service, Lord Diplock laid down the grounds of judicial review which are followed in common law jurisdictions.2 These included jurisdictional error, irrationality, procedural impropriety, proportionality and the doctrine of legitimate expectations.
Jurisdictional error and the doctrine of ultra vires
Jurisdictional error and doctrine of ultra vires are two very important concepts in the administration of law, which emphasise the principle no governmental body or authority shall be the judge in its own cause. As Lord Denning rightly noted, “if tribunals were at liberty to exceed their jurisdiction without any check by the courts, the rule of law would be at an end.”[3] A classic example in this field is Anisminic Ltd v. Foreign Compensation Commission, in which the House of Lords concluded that a statutory clause attempting to preclude judicial review did not succeed for reasons of jurisdictional error.4 There are various forms of jurisdictional error and actions that can be ultra vires which include the following:
Lack of Jurisdiction arises when an authority or court acts without legal authority from the outset. This can occur under two basic scenarios: (1) where the enabling enactment is unconstitutional, or (2) when an authority acquires jurisdiction by erroneously resolving a question of fact over which it has no jurisdiction. Excess of Jurisdiction arises when an authority that had the starting point jurisdiction continues to overstep the legal boundaries. This might be as a result of continued exercise of powers after events had stripped it of its jurisdiction or overstepping the lawful mandate in matters of area it is not entitled to act. Abuse of jurisdiction arises when authority employs powers wrongly orfor improper purposes of law. A decision given in bad faith takes place when an authority exercises its power for ulterior motives. Fettering discretion is when an authority fails to exercise discretion correctly, often by tying itself down to stiff application of policy without taking a view of the case.5 Lord Reid stressed the fact that the authorities must apply statutory discretion with ears unclosed to specific circumstances.6
Irrationality & the Wednesbury Principles
In the famed words of Lord Diplock, an irrational decision is one that is “so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied their mind to the question to be decided could have arrived at it.”7 This sense of irrationality would come to form the core of what would be known as the “Wednesbury test,” derived from the case of Associated Provincial Picture House Ltd v. Wednesbury Corporation. It was decreed that the local council shall be empowered to grant licences to theatres on such terms and conditions as they may deem appropriate. One of the terms applied by the council that no one under the age of 15 years shall be permitted to screen the cinema, it was argued to be disproportionate and too strict and subsequently, held to be irrational.8
The Wednesbury principle is essential in the sense that it lays down the presumption that, where there is delegation of discretion by Parliament to an administrative decision-maker in cases of irrationality, the discretion so delegated must be exercised within reasonable bounds.9. In Maneka Gandhi v. Union of India, the Supreme Court of India upheld that arbitrary confiscation of the passport of the petitioner by the Indian authorities was unreasonable and violated the fundamental rights of the petitioner under Article 19(1)(a) freedom of speech and expression and Article 14 right to equality of the Indian Constitution.10
In another case, Neha Jain v. University of Delhi, the Delhi High Court examined the suspension of a student who had been accused of cheating in an examination. Under the suspension, she was barred from appearing in the next examination. The court felt that the punishment was disproportionately large compared with the offence itself. The court held that the punishment was excessive and arbitrary since it was against the principles of fairness as posited under Article 14 of the Indian Constitution.11
Procedural Impropriety
The doctrine of procedural impropriety comprises two main areas: failure to comply with statutory provisions and violations of principles of natural justice. Some of the most important judgments under this include State of Orissa v. Dr. Bina Pani12and A.K. Kraipak v. Union of India.13
In State of Orissa v. Dr. Bina Pani, the state government compulsorily retired Dr. Bina Pani due to discrepancies on the recorded birth dates. It seemed she had reached the age of retirement under the rules of the state government's superannuation. Dr. Bina Pani filed a petition against this decision on the grounds that the decision was made without hearing her. She argued that her case was administratively passed and therefore, it lay beyond the ambit of natural justice. However, the Supreme Court dismissed the claim and held that any administrative decision which may affect the civil rights of a person or have civil consequences must adhere to the principles of natural justice.
In A.K. Kraipak v. Union of India, the Supreme Court widened the horizon of natural justice when it declared that every administrative action, however innocuous its consequence may be, must be done in observance of natural justice. The case dealt with the plea of objection over the selection process of some posts in the Indian Forest Service wherein the Court held the perversity in the process was offending natural justice. The High Court did away with the distinction between administrative and quasi-judicial powers but underscored that all administration should have fair procedures.
Proportionality
The other big rule, governing judicial review, is the proportionality principle, often mentioned in relation to 'rationality.' According to DeSmith, Woolf, and Jowell, it may be divided into two significant questions: (1) are the benefits of competing objectives or interests appropriately balanced?; (2) are measures employed too tightly restrictive or too onerously burdensome?14
One of the earliest important applications of the principle of proportionality in India is found in Bhagat Ram v. State of H.P. In this case, it is mentioned that one K was permitted by a forest ranger to fell trees without seeking permission under the local law. While K compensated for the offence, a forest guard was drawn into a disciplinary proceeding and dismissed from service. This led the Supreme Court to rule that punishment was excessive with regard to the offence, ruling that penalties must have reasonable proportion to the seriousness of misconduct. The Court held that punishment grossly disproportionate to the offence is violative of Article 14 of the Indian Constitution.15
Another such landmark case in which the principle of proportionality was found to have been applied was Ranjit Thakur v. Union of India. A military signalman was detained behind bars for 28 days. Here, he had refused to eat during his imprisonment. He was tried on continuance, still disobedience, and ultimately discharged from the army. It found that the punishment was grossly disproportionate to the offence. For, no sentence should be so terrible that it “shocks the conscience.” It stated that proportionality is a requirement such that judicial decisions regarding judgments imposed must not be an irrational or excessive reaction to the offence.16
Legitimate Expectations
The doctrine of legitimate expectation covers the reasonable expectation that individuals or entities may have due to the prior conduct or explicit assurances of a government authority. It holds that people can expect treatment consistently where past practice or explicit commitments have established a particular standard of treatment. There are three key elements to establishing a legitimate expectation, namely, (i) a consistent practice or clear commitment from the authority; (ii) that the beneficiaries can reasonably expect this practice or commitment to continue; and (iii) that the expectation must be rational or reasonable.17
The doctrine of legitimate expectation was first held explicitly recognized by the Supreme Court in India in the case of Kerala v. Madavampirai. Here, the state government had permitted the respondents to set up new subsidised schools and also to improve such schools that were already in existence. However, after only 15 days, an order was passed maintaining the status quo by putting an end to the progress of the respondents. This second order had been challenged on grounds that it was a violation of natural principles for justice. Upon appeal, the Supreme Court held that the respondents had a legitimate expectation created by the order and yet that order was passed without justification that was reasonable enough by the subsequent order. The case law resulted in findings that the principles of natural justice in failing to be observed in issuing the said second order justified its invalidation.18
It was in GNCT of Delhi v. Naresh Kumar that the Delhi High Court provided a long summary of the status of the doctrine of legitimate expectation in Indian law. Since the principle of legitimate expectation does not create an independent legal right to it, its non-consideration in administrative decisions can render those decisions arbitrary. For such a legitimate expectation to arise, the decision of the authority must arbitrarily deprive a person of a benefit that he had previously enjoyed or was permitted to enjoy. The Court further emphasised that if an authority intends to deviate from an individual's legitimate expectation, it is obliged to provide the individual with an opportunity to vent their grievance.
Footnotes
1. 4 R. V. Ramachandrasekhara Rao, Bases of Judicial Review, 3 INDIAN LAW INSTITUTE (1961).
2. 37Council of Civil Services Union v. Minister of Civil Service,[1984] UKHL 9.
3. 38 Murray Gleeson, Courts and the Rule of Law, Rule of Law series of Melbourne University, https://www.hcourt.gov.au/assets/publications/speeches/former-justices/gleesoncj/cj_ruleoflaw.htm,(Nov 7,2021).
4. 39Anismic Ltd. v. Foreign Compensation Commission, 2 AC 147, 2 WLR 163.
5. 46Rogers v Swindon NHS Primary Care Trust, ¶ 62..
6. 47British Oxygen Co Ltd v Minister of Technology, ¶625.
7. 48Council of Civil Services Union v. Minister of Civil Service,[1984] UKHL 9.
8. 49Associated Provincial Picture House v. Wednesbury, [1948] 1 KB 223.
9. 50 David Tuner, Judicial Review, Irrationality and the Review of Merits, 15The Nottingham Law Journal, 37(2006).
10. 52Maneka Gandhi v. Union of India, AIR 1978 SC 597.
11. 53 G.L. Peiris, Wednesbury Unreasonableness: The Expanding Canvass, 46 The Cambridge Law Journal, 53, 55 (1987).
12. 56State of Orissa v. Dr. Bina Pani, AIR 1967 SC 1269.
13. 57 AK Kraipak&Ors. Etc v. Union of India, AIR 1970 SC 150.
14. 63 Ashish Chough, Is the Supreme Court disproportionately applying the proportionality principle, (2004) 8 SCC (J) 33
15. 64Bhagat Ram v. State of H.P, (1983) 2 SCC 442.
16. 65Ranjit Thakur v. Union of India, (1987) 4 SCC 611.
17. 66 Nikita Bara, India: Doctrine of Legitimate Expectation,https://www.mondaq.com/india/constitutional- administrative-law/881956/doctrine-of-legitimate-expectation (Nov 7, 2021).
18. 67State of Kerala vs. Madhavan Pillai.1988 SCC (4) 669.
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