Judicial review is the power of courts to examine the legality of administrative action and to strike down action that is unlawful. It does not review the merits of a decision; it reviews whether the decision was made lawfully. The court asks not whether the decision was right but whether the decision-maker was authorised to make it in the way it was made.
Legal Framework
| Provision | Scope |
|---|---|
| Art. 32, Constitution of India | Supreme Court: writ jurisdiction for enforcement of fundamental rights |
| Art. 226, Constitution of India | High Courts: broader writ jurisdiction covering all public authorities |
| Art. 136, Constitution of India | Supreme Court: special leave to appeal from any court or tribunal |
| Art. 227, Constitution of India | High Court superintendence over all subordinate courts and tribunals |
The GCHQ Grounds: Lord Diplock s Framework
In Council of Civil Service Unions v Minister for Civil Service (1984) (the GCHQ Case), Lord Diplock identified three heads of judicial review that remain the standard classification:
| Ground | Description |
|---|---|
| Illegality | The decision-maker must understand correctly the law that regulates the decision-making power and give effect to it |
| Irrationality | Wednesbury unreasonableness: a decision so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied their mind to it could have arrived at it |
| Procedural impropriety | Failure to observe procedural rules expressly laid down in the legislative instrument by which power is conferred, or failure to observe basic natural justice rules |
A fourth ground was added subsequently:
| Ground | Description |
|---|---|
| Proportionality | Whether the measure taken was proportionate to the legitimate aim pursued; adopted in Indian administrative law through Arts. 14 and 21 |
Expanded Indian Grounds
| Ground | Meaning | Example |
|---|---|---|
| Jurisdictional error | Body acted outside its jurisdiction (no power to decide the matter) | A district magistrate deciding a matter reserved for the High Court |
| Error of law on the face of the record | Legal error visible from the record; certiorari lies | Tribunal applies wrong legal standard visible in its written order |
| Violation of natural justice | No notice, no hearing, or biased decision-maker | Licence cancelled without show-cause notice |
| Mala fides | Decision made for an improper purpose or out of personal malice | Transfer ordered to punish a whistleblower |
| Unreasonableness (Wednesbury) | No reasonable authority could have reached the decision on the facts | Imposing a fine of Rs.10 lakh for a minor procedural default |
| Proportionality | Measure disproportionate to the objective; infringes rights unnecessarily | Demolishing an entire building because of an unauthorised structure on one floor |
| Legitimate expectation | Decision defeats a legitimate expectation created by the authority s own prior conduct or promise | Denying renewal of licence after years of regular renewal without indication of any problem |
| Non-application of mind | Decision made without considering relevant materials | Order passed without reading the file |
| Relevant and irrelevant considerations | Relevant factors ignored; irrelevant factors taken into account | Refusing a licence based on the applicant s religion |
Key Cases
Council of Civil Service Unions v Minister for Civil Service (1984) Council-of-Civil-Service-Unions-v-Minister-for-Civil-Service-1984 Issue: Whether the government could ban trade union membership at GCHQ without consulting the unions. Rule: Lord Diplock: judicial review lies on grounds of illegality, irrationality, and procedural impropriety; legitimate expectation is a cognisable interest. Held: The ban was justified on national security grounds, but the case established the tripartite classification of grounds that now governs judicial review.
Illustrations
1. Illegality (jurisdictional error): A Revenue Divisional Officer is empowered under the Land Acquisition Act to award compensation for agricultural land. He also awards compensation for a commercial building on the land. Awarding compensation for commercial structures is not within his jurisdiction under the Act. His order on the commercial building is void for illegality: he exceeded his jurisdiction.
2. Irrationality (Wednesbury): A municipal council refuses permission for a children s playground because the council dislikes the colour scheme of the proposed equipment. Colour preference is irrelevant to the decision to permit a playground. No reasonable council could refuse permission on this ground. The decision is Wednesbury unreasonable.
3. Procedural impropriety: A civil servant is dismissed after a departmental inquiry. The inquiry officer reads the departmental file but never allows the civil servant to see the charges against them or respond. The dismissal order is void for violation of natural justice (audi alteram partem).
4. Proportionality: A street vendor parks his cart on a footpath. The municipal authority demolishes his cart and all his stock, valued at Rs. 80,000, as a penalty for the parking violation. The penalty is wholly disproportionate to the offence. The action is reviewable on proportionality grounds.
Recall Check
- What is the critical distinction between judicial review of administrative action and an appeal on merits?
- State Lord Diplock s three grounds of judicial review from the GCHQ Case.
- What is the difference between Wednesbury unreasonableness and proportionality as grounds of review?
Distinctions
| Feature | Judicial Review | Appellate Review |
|---|---|---|
| Question examined | Legality: was the decision lawfully made? | Merits: was the decision correct? |
| Outcome if successful | Decision quashed; matter remitted for fresh decision (usually) | Decision may be reversed and replaced by the court s own decision |
| Court role | Supervisor: checks process and legal authority | Substitute decision-maker: can substitute its own view |
| Grounds | Illegality, irrationality, procedural impropriety, proportionality | Error of fact, error of law, inadequacy of reasons |
Flashcards
Q: What does the court examine in judicial review (as opposed to an appeal)? A: The legality of the decision: whether the decision-maker had the authority, followed the correct procedure, and applied the correct legal standard. Not whether the decision was correct on the merits.
Q: State the GCHQ three grounds. A: Illegality, irrationality (Wednesbury unreasonableness), procedural impropriety.
Q: What is mala fides as a ground of judicial review? A: A decision made for an improper purpose or out of personal malice rather than for the purpose the power was granted; void ab initio.
Q: What is non-application of mind? A: The decision-maker did not apply their mind to the matter: decided without reading the file, without considering submissions, or mechanically rubber-stamping a prior decision.
Q: Name two Art. 226 grounds beyond the GCHQ three that Indian courts regularly apply. A: Mala fides and relevant/irrelevant considerations (taking into account irrelevant matters or ignoring relevant ones).
Q: What are the three grounds of judicial review per Lord Diplock (GCHQ, 1985)? A:
- (1) Illegality authority acted without/beyond power or misapplied law
- (2) Irrationality decision so unreasonable no rational authority could reach it
- (3) Procedural impropriety failure to follow required procedure or natural justice.
Q: What is the Wednesbury unreasonableness test? A: A decision is Wednesbury unreasonable if it is "so outrageous in its defiance of logic or accepted moral standards that no sensible person who applied his mind to the question could have arrived at it."
Q: How does judicial review differ from appeal? A: Review examines legality of process (how decision was made); appeal examines correctness of outcome (whether decision was right). Court in review quashes and remands; court in appeal can substitute its own decision.
Q: Why is judicial review part of the basic structure? A: L. Chandra Kumar (1997): Without judicial review, no mechanism exists to keep administrative bodies within legal limits. It operationalizes the Rule of Law. Cannot be excluded even by constitutional amendment.
Q: Name three sub-grounds under "illegality." A: (1) Ultra vires (lack of jurisdiction), (2) Irrelevant considerations taken into account, (3) Improper purpose (power exercised for wrong reason).
Q: What is the emerging fourth ground of judicial review? A: Proportionality whether the measure is proportionate to its legitimate aim. Applied in fundamental rights cases in India but not yet a general free-standing ground for all administrative review.
Exam Scenario
Problem: The Pollution Control Board cancels the operating licence of a cement factory owned by Priya Industries. The cancellation order states: Licence cancelled for non-compliance. Priya Industries was not served any show-cause notice. The Board s internal note shows the decision was taken after a complaint by a competitor. Priya challenges the order. Identify all grounds available.
Identify: Multiple grounds:
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(1) procedural impropriety: no notice, no hearing, violation of audi alteram partem
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(2) mala fides: decision motivated by competitor s complaint, not genuine public interest
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(3) non-application of mind: vague order with no reasons.
Rule: All three grounds are established heads of judicial review under Art. 226. Any one is sufficient to quash the order.
Apply: No show-cause notice violates audi alteram partem. Competitor-driven cancellation suggests improper purpose (mala fides). Order without reasons shows non-application of mind.
Conclusion: The order will be quashed on all three grounds. The Board will be directed to issue a proper show-cause notice and conduct a fresh inquiry.
Problem: The State Government, under the Shops & Establishments Act, orders closure of all shops in commercial areas by 8 PM, citing "public order." A shopkeepers' association challenges this. The order was issued without consulting the District Advisory Committee (required by the Act), without giving reasons, and appears motivated by the Chief Minister's desire to promote a mall owned by his relative (which has different hours). Identify all grounds of judicial review.
Approach:
- Illegality improper purpose: If the real motive is benefiting a relative's mall, the power (meant for "public order") is exercised for an extraneous purpose. Colourable exercise of power.
- Illegality irrelevant consideration: CM's relative's commercial interests are irrelevant to public order regulation.
- Procedural impropriety statutory breach: Parent Act requires consultation with District Advisory Committee. Non-compliance with mandatory procedure invalidates order.
- Procedural impropriety no reasons: Order states "public order" without specifics. No material on record showing how shops open past 8 PM affect public order. Failure to give adequate reasons.
- Irrationality: If no evidence of public order disturbance exists, closing all shops at 8 PM is irrational no connection between closure time and stated objective.
- Proportionality (if argued): Even if some public order concern exists, blanket 8 PM closure for all shops is disproportionate. Targeted measures (CCTV, patrolling, problem-specific orders) would achieve aim with less restriction on trade.
- Conclusion: Order quashed on multiple grounds. Direction for fresh consideration after statutory consultation and with proper reasons.
Illustrations (from consolidated notes)
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Illegality ultra vires: Municipal Commissioner demolishes a building citing "traffic congestion." Parent Act empowers demolition only for "unauthorized construction." Traffic management is outside the power conferred illegality, ultra vires.
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Irrationality: Transport authority bans all autorickshaws from city roads because one auto was involved in an accident. Banning entire class of vehicles for one incident is so disproportionate that no reasonable authority would do it Wednesbury unreasonable.
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Procedural impropriety: University expels student for "indiscipline" without issuing show-cause notice, without disclosing specific charges, without oral hearing. Even if student was genuinely indisciplined, the procedure vitiates the order void for breach of natural justice.
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Proportionality in action: Government bans all social media to prevent one extremist from spreading propaganda. Legitimate aim (preventing hate speech) exists. But banning all social media for all citizens is not necessary (can block specific accounts) and not proportionate (destroys everyone's Art.19(1)(a) right). Proportionality analysis would strike this down even if Wednesbury test might not (since one could argue some reasonable authority might do it in extreme emergency).