Grounds of Judicial Review of Administrative Action: Illegality, Irrationality, Procedural Impropriety and Jurisdictional Error

Judicial review proceeds on grounds, not on general dissatisfaction. A court asked to set aside an administrative decision must be able to say which recognised defect the decision suffers from, and the catalogue of those defects is the working content of administrative law. Lord Diplock grouped them into three, illegality, irrationality and procedural impropriety, and Indian law has adopted that classification while adding proportionality and arbitrariness under Article 14. Beneath the three headings lies a further set of distinctions worked out in the certiorari cases: between jurisdictional and non-jurisdictional error, between error of law and error of fact, and between an error that appears on the face of the record and one that does not. This topic sets out the whole catalogue.

1. The Threefold Classification

The organising framework comes from Council of Civil Service Unions v. Minister for the Civil Service, [1985] AC 374 and was adopted for India in Tata Cellular v. Union of India, (1994) 6 SCC 651.

Ground	What it covers
Illegality	The authority must understand correctly the law that regulates its decision-making power and must give effect to it: absence or excess of power, error of law, improper purpose, irrelevant and ignored considerations, bad faith, unlawful delegation and fettering of discretion
Irrationality	A decision so outrageous in its defiance of logic or accepted moral standards that no sensible person applying his mind could have arrived at it: Wednesbury unreasonableness
Procedural impropriety	Failure to observe a mandatory procedural requirement of the enabling statute, or the rules of natural justice, or a procedure the authority itself undertook to follow
Proportionality	Contemplated by Lord Diplock as a possible fourth ground; in India it governs where a fundamental right is restricted
Arbitrariness under Article 14	The independent Indian ground: an act capricious, irrational or without a determining principle offends equality

2. Illegality and its Species

Absence of power. The authority had no power to act at all, or the statute conferring it was void.
Excess of jurisdiction. The authority acted beyond the persons, places, subjects, period or amount its power covered.
Failure to exercise jurisdiction. The authority refused to decide, wrongly believed it had no power, acted under dictation, applied a policy inflexibly, or abdicated or sub-delegated the power.
Error of law. The authority misconstrued the statute, misdirected itself on the applicable legal test or applied the wrong provision.
Improper purpose. The power was used to achieve an object the statute did not contemplate.
Irrelevant considerations. Matters the statute excludes materially influenced the decision.
Ignoring relevant considerations. Matters the statute requires to be considered were left out of account.
Mala fides. Malice in fact, meaning personal ill will or dishonesty, or malice in law, the use of power for purposes foreign to the statute, as State of Punjab v. Gurdial Singh, (1980) 2 SCC 471 holds.
Colourable exercise. The statutory purpose is recited in form while another object is pursued in substance.
Unauthorised retrospectivity, and the creation of a tax, fee, offence or penalty the Act does not authorise.

3. Jurisdictional Error and the Jurisdictional Fact

A jurisdictional fact is a fact on whose existence the statute conditions the power: the person must be a dealer, the land must be waste, the building must be dangerous, the circumstances suggesting fraud must exist. Because the power depends on it, the authority cannot confer jurisdiction on itself by wrongly deciding it, and the court may examine its existence for itself. The doctrine was applied in Barium Chemicals Ltd. v. Company Law Board, AIR 1967 SC 295 and in Rohtas Industries Ltd. v. S.D. Agarwal, AIR 1969 SC 707, where investigations ordered under subjective powers fell because the circumstances the statute required were not shown to exist.

📖 Anisminic Ltd. v. Foreign Compensation Commission, [1969] 2 AC 147

Facts: The Foreign Compensation Commission rejected a claim to compensation on a construction of the governing Order under which the nationality of the claimant's successor in title was treated as relevant, when on the true construction it was not. Section 4(4) of the Foreign Compensation Act, 1950 provided that a determination by the Commission shall not be called in question in any court of law.

Held: The House of Lords held the determination a nullity and the ouster clause inapplicable. The Commission had asked itself the wrong question by taking into account a matter it was not entitled to consider, and a decision reached in that way is not a determination at all but a purported one; the ouster clause protects genuine determinations made within jurisdiction and does not protect a nullity. The effect was to treat an error of law that leads the authority to misconceive the question entrusted to it as taking the decision outside jurisdiction.

Ratio: The distinction between jurisdictional and non-jurisdictional error of law was greatly narrowed, so that most errors of law now go to jurisdiction. The decision also settles that a finality or ouster clause does not protect a decision that is a nullity.

4. Error of Law, Error of Fact and Error Apparent

📖 Syed Yakoob v. K.S. Radhakrishnan, AIR 1964 SC 477

Facts: A writ of certiorari was sought against an order of a transport appellate authority granting a stage carriage permit, the complaint being directed at the appreciation of the material before the tribunal.

Held: The Supreme Court set out the scope of certiorari. The jurisdiction is supervisory and not appellate: the court does not act as a court of appeal and cannot review the findings of fact reached by the inferior tribunal. A writ can be issued where the tribunal acted without jurisdiction, in excess of it, or failed to exercise it, where it acted in violation of natural justice, and where there is an error of law apparent on the face of the record. An error of fact, however grave, cannot be corrected by certiorari; a finding of fact reached on no evidence, however, raises an error of law and is open to correction, though the adequacy or sufficiency of evidence is not. What is an error apparent on the face of the record cannot be defined precisely, and must be determined in each case.

Ratio: The classical Indian statement of the certiorari grounds. Errors of law apparent on the record are correctable, errors of fact are not, and a finding resting on no evidence is treated as an error of law.

Kind of error	Reviewable?
Jurisdictional error: absence, excess or failure to exercise jurisdiction	Yes; the decision is a nullity and no ouster clause protects it
Error of law apparent on the face of the record	Yes; correctable by certiorari (Syed Yakoob)
Error of law requiring elaborate argument to establish	Traditionally not apparent on the record, though after Anisminic most errors of law are treated as jurisdictional
Error of fact, simple	No; the court does not reappreciate evidence
Finding of fact based on no evidence	Yes; treated as an error of law (Union of India v. H.C. Goel, AIR 1964 SC 364)
Insufficiency or inadequacy of evidence	No; weight is for the authority
Error as to a jurisdictional fact	Yes; the court may examine the existence of the fact for itself
Perverse finding, which no reasonable person could reach	Yes; irrationality

5. Irrationality and Unreasonableness

In the narrow Wednesbury sense a decision falls only if it is so unreasonable that no reasonable authority could ever have come to it, a threshold set high so that the court does not substitute its own view. Indian law supplements this with arbitrariness under Article 14, so that a decision which is irrational, capricious, unsupported by material or unrelated to the statutory purpose may be struck down without meeting the Wednesbury standard. Bye-laws of local bodies have long been reviewable for manifest unreasonableness, and regulations of expert regulators have been struck down as manifestly arbitrary, as in Cellular Operators Association of India v. TRAI, (2016) 7 SCC 703.

6. Procedural Impropriety

Breach of a mandatory statutory procedure, such as consultation, previous publication, publication or a prescribed form, where the requirement is mandatory rather than directory.
Breach of natural justice, that is, denial of notice, disclosure, hearing or cross-examination, or decision by a biased or disqualified authority.
Failure to give reasons, where the decision prejudicially affects a person.
Divorce of hearing from decision, where the statute requires a personal hearing before the deciding authority.
Breach of a procedure the authority undertook to follow, which links this ground to procedural legitimate expectation.

7. Proportionality and Legitimate Expectation as Grounds

Proportionality operates where a fundamental right is restricted, requiring that the measure pursue a legitimate aim, be rationally connected to it, be necessary in the sense of least restrictive, and strike a fair balance, the four-part test of Modern Dental College and Research Centre v. State of M.P., (2016) 7 SCC 353. It also applies to the quantum of punishment, where a strikingly disproportionate penalty is evidence of arbitrariness.

Legitimate expectation is a ground in its own right where an express promise or a settled practice has founded an expectation that a procedure will be followed or a benefit continued. It confers a right to fair and non-arbitrary consideration rather than to the benefit itself, and it yields to a genuine change of policy in the public interest, the position in Food Corporation of India v. Kamdhenu Cattle Feed Industries, (1993) 1 SCC 71 and Punjab Communications Ltd. v. Union of India, (1999) 4 SCC 727.

⚠ The grounds overlap, and pleading several is normal

The categories in this topic are not watertight. An acquisition pushed through for a political vendetta is simultaneously malice in law, improper purpose, colourable exercise and a decision on irrelevant considerations. A rule made without the prescribed consultation is procedural impropriety and also ultra vires. A finding on no evidence is an error of law, an instance of irrationality, and arbitrariness under Article 14. Nothing turns on selecting the single correct label, because the consequence is the same: the exercise of power is bad and the decision is set aside. What matters is that at least one recognised ground is made out on the material.

8. The Position in Summary

The grounds are classified as illegality, irrationality and procedural impropriety, with proportionality and arbitrariness under Article 14 added in India (Tata Cellular).
Illegality covers absence and excess of jurisdiction, failure to exercise it, error of law, improper purpose, relevant and irrelevant considerations, mala fides and colourable exercise.
A jurisdictional fact may be examined by the court for itself, and after Anisminic an error of law that misconceives the question entrusted to the authority takes the decision outside jurisdiction, beyond the protection of an ouster clause.
Certiorari corrects errors of law apparent on the face of the record but not errors of fact; a finding on no evidence is an error of law, while sufficiency of evidence is not examinable (Syed Yakoob).
Procedural impropriety covers mandatory statutory procedure and natural justice, while proportionality and legitimate expectation operate as independent grounds in their own fields.

9. Related Topics and Provisions

Judicial Review of Administrative Action (Topic 88): the jurisdiction within which these grounds operate.
Doctrine of Proportionality in Judicial Review (Topic 91) and Intensity of Judicial Review (Topic 92): the standards applied.
Abuse of Administrative Discretion (Topic 51) and Failure to Exercise Discretion (Topic 50): the discretion grounds in detail.
Principles of Natural Justice (Topics 58 and 59): procedural impropriety.
Substantive and Procedural Ultra Vires (Topic 46): the same grounds applied to delegated legislation.
Constitution of India: Articles 13, 14, 19, 21, 32, 136, 226 and 227.