National Law Institute University

administrative law ii

cases on unreasonableness

Submitted to -:

Submitted by -:

Mrs. (Dr.) Sushma Sharma

Shivank Virmani

Asst. Prof.

2012B.A.LL.B.70

x Trimester

1 | Page

Contents
Acknowledgement................................................................................................. 3
Associated Provincial Picture Houses Ltd. V. Wednesbury Corp..............................................4
Indian Case Laws........................................................................................................ 7
Rameshwar Prasad v Union of India................................................................................. 7
Om Kumar v. Union of India.......................................................................................... 7
State of U.P. v. Sheo Shanker Lal Srivastava and Ors............................................................8
Reliance Airport Developers v. Airports Authority of India.....................................................8
Maneka Gandhi v. Union of India.................................................................................. 10
Conclusion.............................................................................................................. 13
Bibliography-:...................................................................................................... 14
SP Sathe Administrative Law, Author: SP Sathe................................................................14

2 | Page

Acknowledgement:
I take immense pleasure in thanking Prof. S.S. Singh, Director and Mrs. Sushma Sharma
respected teacher for having permitted me to carry out this project work. I express my
gratitude to them for giving me an opportunity to explore the world of information
concerning my project topic.
Words are inadequate in thanking my seniors and batchmates for their support and
cooperation in carrying out the project work.
Finally, I would like to thank my family members for their blessings and wishes for the
successful completion of the project

3 | Page

Associated Provincial Picture Houses Ltd. V. Wednesbury Corp1

Facts of the Case
The facts of Wednesbury are critical to a discourse on the subject. The plaintiff company, the
owners and licensees of the Gaumont Cinema, Wednesbury, Staffordshire, were granted by
the defendants who were the licensing authority for that borough under the Cinematograph
Act, 1909, a licence to give performances on Sunday under S.1 (1) of the Sunday
Entertainments Act, 1932; but the licence was granted subject to a condition that "no children
under the age of fifteen years shall be admitted to any entertainment whether accompanied by
an adult or not." In these circumstances the plaintiffs brought an action for a declaration that
the condition as ultra vires and unreasonable.

The Discretion Granted To The Wednesbury Corporation

Legislations relevant - Reference may be made to two important legislations in this respect:
The Cinematograph Act The Wednesbury Corporation had the power under this Act to grant
licences in any area for cinematograph performances.
The Sunday Entertainments Act Section1, sub section 1 of this Act provided that if an
authority had, under the Cinematograph Act, the power to grant licences in any area for
cinematography performances, then such authority had the power to allow a licensed place to
be open and used on Sundays, subject to such conditions as the authority thinks fit to
impose.
The Wednesbury corporation, in this case, was an authority which had: The power to grant
licences in any area for cinematograph performances under the Cinematograph Act, 1909,
and The power to allow a licensed place to be open and used on Sundays, subject to such
conditions as the authority think fit to impose.
As there was no debate about the Wednesbury Corporation being an authority contemplated
under the Cinematograph Act, there was no debate about it being an authority under the
Sunday Entertainments Act.
1 Associated Provincial Picture Houses Ltd. vs. Wednesbury
Corporation [9148 (1) K.B. 223(p.229)]
4 | Page

The Discretion Exercised By The Wednesbury Corporation

The Wednesbury Corporation granted the license to the plaintiffs on the condition that no
children under 15 years, whether accompanied by an adult or not, should be admitted to
Sunday performances
The Issue Brought Forth
The claim of the plaintiffs was that the condition was ultra vires and unreasonable.

Judgment and rationale

The Court held that in considering whether an authority having so unlimited power has acted
unreasonably, the court is only entitled to investigate the action of the authority with a view
to seeing if it has taken into account any matters that ought not to be or disregarded matters
that ought to be taken into account. The Court cannot interfere as an appellate authority
overriding the decisions of such authority but only as a judicial authority concerned to see
whether it has contravened the law by acting in excess of its power. Lord Greene, who
rendered the leading judgment, dealt with the law in detail and enunciated principles of
reasonableness, and as an aside, Indian Courts have followed these Wednesbury principles
of reasonableness in various decisions. Lord
Greene M.R. also went on to explain the word unreasonableness and held that when an
executive discretion is entrusted by a Parliament to a body, such as the local authority, the
discretion exercised by the authority can only be challenged in the Courts in a strictly limited
class of cases. He also described the various grounds of challenge which went into the
legality of public bodys actions. Unreasonableness was used to describe actions based on
illegality, irrelevancy and the like. This Wednesbury test has been the major tool used by the
Courts to control discretionary decisions. To quote the learned judge on the crux of the
judgment;
What, then, is the power of the courts? They can only interfere with an act of executive
authority if it be shown that the authority has contravened the law. It is for those who assert
that the local authority has contravened the law to establish that proposition. On the face of it,
a condition of the kind imposed in this case is perfectly lawful. It is not to be assumed prima
facie that responsible bodies like the local authority in this case will exceed their powers; but
5 | Page

the court, whenever it is alleged that the local authority have contravened the law, must not
substitute itself for that authority. It is only concerned with seeing whether or not the
proposition is made good. When an executive discretion is entrusted by Parliament to a body
such as the local authority in this case, what appears to be an exercise of that discretion can
only be challenged in the courts in a strictly limited class of cases. As I have said, it must
always be remembered that the court is not a court of appeal. When discretion of this kind is
granted the law recognizes certain principles upon which that discretion must be exercised,
but within the four corners of those principles the discretion, in my opinion, is an absolute
one and cannot be questioned in any court of law.
What then are those principles? They are well understood. They are principles which the
court looks to in considering any question of discretion of this kind. The exercise of such
discretion must be a real exercise of the discretion. If, in the statute conferring the discretion,
there is to be found expressly or by implication matters which the authority exercising the
discretion ought to have regard to, then in exercising the discretion it must have regard to
those matters. Conversely, if the nature of the subject matter and the general interpretation of
the Act make it clear that certain matters would not be germane to the matter in question; the
authority must disregard those irrelevant collateral matters.

6 | Page

Indian Case Laws

It may be stated at the onset that the Supreme Court has been applying the test of
reasonableness unreasonably and the proportionality principle disproportionately. While the
general trend has been stated below, the researchers have focused more on the development
of jurisprudence in the 21st Century.

Rameshwar Prasad v Union of India2

Prior to making a statement on the evolution of case law in India, one must scrutinize the case
of Rameshwar Prasad v. Union of India, decided in 2005, by the Honble Supreme Court of
India. The minority judgment by Honble Justice Arijit Pasayat has relied heavily on
Wednesbury principles regarding the standards for judging reasonableness of an executive
action. Unfortunately it has overlooked that the Wednesbury principles have been diluted, if
not rejected, by the House of Lords in Ex parte Daly in 2001 and previously by the Privy
Council in 1999. This was pointed out in the submissions but somehow has escaped attention.
It must be appreciated that decisions concerning administrative law affecting fundamental
freedoms have always been tested against the principle of proportionality although it may
not always expressly be stated that the principle being adopted was that of proportionality.
It is worth mentioning that even before the decision in Ex-P. Daly May 2001)

Om Kumar v. Union of India3

The Supreme Court had firmly acknowledged this tool of judicial interpretation in Om
Kumar v. Union of India decided on 17 November 2000.
2 Rameshwar Prasad v Union of India, Decided on July25, 2005
3 Om Kumar v. Union of India, (2001) 2 SCC 386.
7 | Page

In this case, inter alia, the Supreme Court noted that while dealing with the validity of
legislation infringing fundamental freedoms enumerated in Article 19 (1) of the Constitution
of India, the issue of whether restrictions imposed by the legislation were disproportionate to
the situation and not the least restrictive of choices has been repeatedly examined by the
superior courts in numerous judgments.
Thus in the Om Kumar case proportionality was held to mean whether while regulating the
exercise of fundamental rights, the appropriate or least restrictive choice of measures have
been adopted by the legislature or the administrator so as to achieve the object of the
legislation or administrative order. And that it was for the superior Courts to decide whether
the choice made by the legislature or the administrative authorities infringed the rights
excessively. This to my mind is the essence of the doctrine of proportionality.

State of U.P. v. Sheo Shanker Lal Srivastava and Ors4

In State of U.P. v. Sheo Shanker Lal Srivastava and Ors, the Supreme Court has supplied
further credence to ex-parte Daly. One must also refer to the case of Commissioner of Police
v. Syed Hussain where a similar endorsement was made.
Based on the facts of the case, the Supreme Court while holding that the High Court erred in
interfering with the quantum of punishment dwelt upon the question of applicability of
doctrine of proportionality. And while holding the view that the doctrine of proportionality
could be invoked only under certain situations, the Court however acknowledged that the
doctrine of unreasonableness was giving way to the doctrine of proportionality.

Reliance Airport Developers v. Airports Authority of India5

4 State of U.P. v. Sheo Shanker Lal Srivastava and Ors. (2006) 3 SCC 276.
5 Reliance Airport Developers Pvt. Ltd. v. Airports Authority of India, JT
2006 (10) SC 424
8 | Page

Furthermore, the Apex Court decision in Reliance Airport Developers v. Airports Authority of
India has also firmed up the future applicability of ex-parte Daly if the context so requires.
The Court while adjudicating upon a challenge to the exercise of discretion by Government in
altering the terms of the original tender documents inter alia held that though the test of
proportionality was very much relevant in the light of ex-parte Daly, the facts of the case in
Reliance Airport Developers did not necessitate its application.
The Judges who adjudicated upon this matter also held the view that in such cases of judicial
review the Court has to necessarily delve deeper into the matter and subject such orders to
deeper scrutiny going beyond the above three tests. Based on the facts and the issues in this
case, the Supreme Court inter alia had to go into the validity of certain regulations and the
power of Judicial Review of administrative acts. While going into this question, the Supreme
Court acknowledged that keeping in view the situational changes particularly, the outsourcing
of sovereign activities by the State; the Supreme Court had been expanding the scope of
judicial review. In its judgment it has held that the doctrine of unreasonableness has now
given way to the doctrine of proportionality
We quote the relevant portions of the judgment below:46. We may note that keeping in view the situational changes and particularly, outsourcing
of the sovereign activities by the State, this Court has been expanding the scope of judicial
review. It includes the misdirection in law, posing a wrong question or irrelevant question and
failure to consider relevant question. On certain grounds judicial review on facts is also
maintainable. Doctrine of unreasonableness has now given way to doctrine of
proportionality.
Therefore, there is a new wave of thinking that the Doctrine of Unreasonableness in cases
where applicable could give way to the Doctrine of Proportionality. And we are certain that in
appropriate cases the law will develop accordingly.

9 | Page

Maneka Gandhi v. Union of India6

Maneka Gandhi v Union of India is a landmark judgment and played the most significant role
towards the transformation of the judicial view on Article 21 of the constitution of India so as
to imply many more fundamental rights from Article 21. It also has discussed in detail the
phrase procedure established by law and gave it a new meaning. And thus brought a
paradigm shift in the Indian legal world.
The relationship between various rights given in part 3 of the constitution of India, (and
specifically between article 14, 19 an d21) was also discussed in detail and a new test for
checking the validity of a law has been derived.
Statement of facts-:
1- Maneka Gandhi, petitioner in this case, was daughter-in-law of Indias ex-prime
minister Smt Indira Gandhi and wife of congress leader Sanjay Gandhi.
2- She is a journalist from profession. In pursuance of her profession, she had applied for
a tourist visa, and in order to obtain same, she needed a passport, for which she
applied in the office of Registrar, Passport Department, New Delhi.
3- In India, there is Passport Act 1967 which govern the mode of issuing passport to
Indian citizens.
4- She was given a passport on 01/06/1976 by the government of India, and letter, her
passport was impounded on 02/07/1977 by the passport authorities under Ss. 10(3)(c)
of Passport Act 1967.
5- Ss. 10(3)(c) of Passport Act 1967 gives power to central government to impound or
revoke passport of any person on the ground of public interest, national security and
relationship with other countries with or without furnishing any reason. The text Ss
10(3)(c) of Passport Act 1967 is as follows-:
10. Variation, impounding and revocation of passports and
travel documents
(3) The passport authority may impound or cause to be impounded or
revoke a passport or travel document,-

6 Maneka Gandhi vs Union Of India 1978 AIR 597, 1978 SCR (2) 621
10 | P a g e

(c) if the passport authority deems it necessary so to do in the interests of

the Sovereignty and integrity of India, the security of India, friendly relations of
India with any foreign country, or in the interests of the general public;
6- Section 10(5) of the Act also provides that while impounding the passport,
passport authorities shall furnish a brief written statement of the reasons of
revocation of the passport on the demand of the same by holder, unless in their
opinion, it is the interests of the sovereignty and integrity of India, the security
of India, friendly relations of India with any foreign country or in the interests
of the general public. The text of Ss 10(5) is as follows-:
10(5) Where the passport authority makes an order varying or cancelling
the endorsements on, or varying the conditions of, a passport or travel
document under sub-section (1) or an order impounding or revoking a
passport or travel document under sub-section (3), it shall record in writing a
brief statement of the reasons for making such order and furnish to the
holder of the passport or travel document on demand a copy of the same
unless in any case, the passport authority is of the opinion that it will not be
in the interests of the sovereignty and integrity of India, the security of
India, friendly relations of India with any foreign country or in the interests
of the general public to furnish such a copy.
7- No such explanation as to why her passport was impounded was furnished to the
petitioner even after her repeated demand for the same.
8- The petitioner has approached to the Supreme Court for the issuance of the writ of
certiorari under article 32 of the constitution of India7.

Legal issues-:
1Whether the impugned order of the regional passport officer is in contravention of the
principles of natural justice.
Whether the impugned order of the regional passport officer is in contravention of the
principles of natural justice?
7
11 | P a g e

It was submitted on behalf of the state that an order under Sub-clause 10(3)(c) is on the
subjective satisfaction of the passport authority and that as the decision is purely
administrative in character it cannot be questioned in a court of law except on very limited
grounds. Though the courts had taken the view that the principle of natural justice is
inapplicable to administrative orders, there is a change in the judicial opinion subsequently.
The frontier between judicial or quasi-judicial determination on the one hand and an
executive or administrative determination on the other has become blurred. The rigid view
that principles of natural justice applied only to judicial and quasi-judicial acts and not to
administrative acts no longer holds the field. The views taken by the courts on this subject are
not consistent. While earlier decisions were in favour of administrative convenience and
efficiency at the expense of natural justice the recent view is in favour of extending the
application of natural justice and the duty to act fairly with a caution that the principle should
not be extended to the extreme so as to affect adversely the administrative efficiency.

12 | P a g e

Conclusion
Substantive review has always been considered an anathema in judicial review proceedings.
When Lord Denning, M.R. stated:
"I go further. Not only must he be given a fair hearing, but the decision itself must be fair and
reasonable."
On appeal Lord Chancellor and Lord Brightman lost no opportunity to rebuke such a
proposition on the ground that it went against the well-established principles of judicial
review viz., that judicial review is not concerned with the decision but with the decisionmaking process
The superior Courts in India enjoy the powers of judicial review and this is accepted as one
of the basic features of our Constitution. We have been following the common law principles
in the matter of justice delivery system, and for interpretation of the Constitution and the
Statutes we rely heavily on some of the basic principles laid down by the superior Courts of
common law countries. It is, therefore, of immense importance that some of the decisions of
the United States Supreme Court, The House of Lords and The Court of Appeal in the United
Kingdom, the Supreme Court of Canada and the High Court of Australia attract our attention
and we closely follow them in appropriate cases. But, we must also remember that these
decisions are rendered in peculiar socio-economic conditions of those countries and many of
these principles cannot be applied implicitly in Indian conditions.
However, the general guidelines issued in these decisions have always been applied by our
Courts. In the matter of administrative law, there have been tremendous changes in recent
times. There is even a fundamental shift in a great deal of public law litigation in England, by
virtue of the implementation of the Human Rights Act, 1998, the shift has been significantly
accelerated and the principles of judicial review must be actually justified by Constitutional
provisions. Though the right of superior Courts to invoke the judicial review is guaranteed by
the Constitution, its content, reach and power, and the balance between various principles are
not enunciated in any provision of the Constitution, but have probably been founded on

13 | P a g e

various principles enunciated on the basis of notions of fairness which generally permeate the
common law

Bibliography-:
SP Sathe Administrative Law, Author: SP Sathe
Administrative LawI.P.Massey8th edition, 2012
All India Reporter
www.manupatra.in

14 | P a g e