The Relevance of ‘Wednesbury Unreasonableness’ in the Light of ‘Proportionality’ as a Ground for Judicial Review
| DOI | 10.1177/0019556120140106 |
| Published date | 01 January 2014 |
| Date | 01 January 2014 |
| Author | Rajan Varghese |
| Subject Matter | Article |
THE RELEVANCE OF 'WEDNESBURY
UNREASONABLENESS' IN THE LIGHT OF
'PROPORTIONALITY' AS A GROUND FOR
JUDICIAL REVIEW
RAJAN VARGHESE
The principle
of
primary review and proportionality on the
one
hand
and
the
principle
of
secondary
review
and
Wednesbury reasonableness on the other hand gave a new
dimension
to
Administrative
Law,
the former applying in the
case
of
fandamental freedoms and the latter, in other cases.
Proportionality as a legal test is capable
of
being more
precise than a reasonableness test, besides requiring a more
intrusive review
of
a decision made by a public authority.
Judicial verdicts have not openly held that the proportionality
test may replace the Wednesbury test. Practically what is
found is that the proportionality test is applied more and
more,
when
there
is
violation
of
human
rights
and
fandamental freedom and the Wednesbury finds its presence
more on the domestic law when there are violations
of
a
citizen's ordinary rights.
THE CONSTITUTIONAL Courts in the matters
of
Judicial review exercise
a collateral review, examining
the
constitutionality
or
the legality
of
a
decision by an administrative authority. The reviewing Court will not go
into the correctness or otherwise
of
a
deci~ion,
but will examine the legality
or propriety
of
the decision-making process by the authority.
In
other words,
judicial review
of
administrative action is concerned with the lawfulness
of
administrative action and not with the merits
of
the decision. The actual
characteristics
of
judicial review that it
is
not concerned with the 'decision'
but with the 'decision-making
process'
was re-emphasised by Lord
Brightman in Chief Constable
of
North
Wales
Police
v.
Evans. 1
Collateral judicial review
is
of
two types, based on the action that is
1(1982) 1 WLR 1155.
THE RELEVANCE
OF
'WEDNESBURY UNREASONABLENESS' I
89
RAJAN VARGHESE
being challenged
under
the review jurisdiction.
One
is against the
administrative action
of
the State and the other is directed against the
Legislath·e action. Judicial review is considered to be the assertion
of
the
rule
of
law as controlling State action.2 The basis
of
judicial review
of
administrative action
is
primarily the lack
of
jurisdiction.
It
is a well known
aspect of judicial review that when an administrative authority
is
entrusted
with the power to act under a Statute or to decide a matter, the power can
be
exercised
only
if
the
jurisdictional
conditions
3
are
satisfied.
Unreasonableness
of
decisions
of
administrative bodies has been held to
be a ground for judicial review since a considerable period
of
time as
highlighted in Associated Provincial Picture Houses Ltd.
v.
Wednesbury
Corporation4•
Wednesbury Unreasonableness
In the initial period
of
development
of
Administrative Law, the judiciary
had shown a strong dependency on the 'Wednesbury unreasonableness' to
test the validity
of
administrative decision-making. In this case, the Court
held that it could not intervene and tum down the decision
of
the Corporation
simply because the Court disagreed with it. The Court observed that
discretion must be exercised 'reasonably'. This brings in the expression,
'unreasonable'. The expression is frequently used as a general description
of
things that must not· be done. A person who is exercising discretion
must look into things that must be considered and not what is irrelevant.
Where discretion is exercised in disregard
of
these guidelines one is said
·to be "acting unreasonably". Even judges are bound by these and other
stringent rules
in
exercising discretion. At this juncture the words
of
Justice
Cardozo are noteworthy. According to him, the Judge, "even when he
is
free, is still not wholly free. He is not to innovate at pleasure. He
is
not a
knight-errant roaming at will in pursuit
of
his own ideal
of
beauty or
of
goodness. He is to draw his inspiration from consecrated principles. He is
not to yield to spasmodic sentiment, to vague and unregulated benevolence.
He
is
to exercise a discretion informed by tradition, methodised by analogy,
disciplined by system, and subordinated to the primordial necessity
of
order
2
V.
S.
Deshpande, Judicial Review
of
Legislation, Eastern Book Company, 1975, p.15.
3Conditions like the existence
of
jurisdictional facts, improper exercise
of
discretionary
powers, error of law on the face of the record, etc. are in mind.
4(1947) 1
KB
223. In this case, a Cinema Company, Associated Provincial Picture
Houses,
was
granted a licence by the Wednesbury Corporation, to operate a Cinema Theatre
on condition that "No children under the age
of
fifteen years shall be admitted
to
any
entertainment, whether accompanied
by
an adult or not." This condition was imposed
under Section
1,
sub Section 1 of the Sunday Entertainments Act
of
1932. The Picture
Houses sought a declaration that such a condition was unacceptable and outside the power
of
the Corporation.
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