Wednesbury Unreasonableness

and
Test of Proportionality

DR. SYED ALI AKHTAR

 Wednesbury Principle

 Wednesbury Principle
 Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, 1948
 Sets out the standard of unreasonableness of public body decisions.
1. Whether they have taken into account matters which ought not be taken into account
2. Neglected to take into account matters which ought to be taken into account
3. Despite acting within the 4 corners of the matter at hand, the conclusion they came at
was so unreasonable that no reasonable authority could ever have come to it.
 Nature
 The principle originated in Prussia in the nineteenth Century and has since
been adopted in Germany, France and other European countries.
 The European Court of Justice at Luxembourg and the European Court of
Human Rights at Strasbourg have applied the principle while judging the
validity of administrative action.
 But even long before that, the Indian Supreme Court had applied the
principle of 'proportionality' to legislative action since 1950, as stated in
detail below.
 Under the principle, the Court will see that the legislature and the
administrative authority 'maintain a proper balance between the adverse
effects which the legislation or the administrative order may have on the
rights, liberties or interests of persons keeping in mind the purpose which
they were intended to serve’
 Wednesbury Principle
As Lord Greene said (at 229),
 It is true the discretion must be exercised reasonably. Now what does that mean?
Lawyers familiar with the phraseology commonly used in relation to exercise of
statutory discretions often use the word "unreasonable" in a rather comprehensive sense.
It has frequently been used and is frequently used as a general description of the things
that must not be done. For instance, a person entrusted with a discretion must, so to
speak, direct himself properly in law. He must call his own attention to the matters
which he is bound to consider. He must exclude from his consideration matters which
are irrelevant to what he has to consider. If he does not obey those rules, he may truly
be said, and often is said, to be acting "unreasonably." Similarly, there may be something
so absurd that no sensible person could ever dream that it lay within the powers of the
authority. Warrington LJ in Short v Poole Corporation [1926] Ch. 66, 90, 91 gave the
example of the red-haired teacher, dismissed because she had red hair. That is
unreasonable in one sense. In another sense it is taking into consideration extraneous
matters. It is so unreasonable that it might almost be described as being done in bad
faith; and, in fact, all these things run into one another.
 Wednesbury Principle
 Council of Civil Service Unions. v. Minister for the Civil Services
 Lord Diplock beautifully sums up Wednesbury unreasonableness:
As a principle that applies to a decision which is so outrageous in its defiance of logic or of
accepted moral standards that no sensible person who applied his mind to the question to be
decided could have arrived at it. Quite obviously the concept of Wednesbury unreasonableness
is extremely vague and is not capable of objective evaluation. Hence, Wednesbury
unreasonableness cannot be defined in the form of standard tests for universal application.
 Development in India
 Ranjit Thakur v. Union of India (1987)
 This case established the importance of judicial review in matters of administrative discretion. The
Supreme Court applied the Wednesbury principle to assess whether the punishment imposed was so
unreasonable that no reasonable person could have imposed it. It highlighted that administrative actions
should not be "outrageous in defiance of logic or accepted moral standards."
 Union of India & Another v. G. Ganayutham (1997)
 In this case, the Supreme Court explicitly addressed the application of the Wednesbury unreasonableness
test in India, stating that the judiciary should only interfere with administrative decisions when they are
irrational, unreasonable, or arbitrary. It further clarified the scope of judicial intervention in administrative
matters, emphasizing the need for proportionality.
 Om Kumar and Ors v. Union of India (2000)
 The Om Kumar case solidified the principle of proportionality alongside Wednesbury unreasonableness.
The court ruled that while Wednesbury's unreasonableness applies to ordinary administrative decisions,
the proportionality doctrine is more appropriate in matters affecting fundamental rights. This case helped
delineate when each doctrine should be applied.
 Sandeep Subhash Parate v. State of Maharashtra & Ors (2006)
 This case demonstrated how Wednesbury unreasonableness continues to apply in Indian administrative
law. The court evaluated whether the administrative decision was so arbitrary and unreasonable that it
warranted intervention, focusing on fairness in administrative decisions that impact individuals’ rights and
livelihoods.
 Doctrine of Proportionality
 Council of Civil Services Union v. Minister of Civil Services, 1985
 Lord Diplock' observed in that case as follows:
 "...Judicial review has I think, developed to a stage today when without reiterating
any analysis of the steps by which the development has come about, one can
conveniently classify under three heads the grounds upon which administrative
action is subject to control by Judicial review. The first ground I would call
'illegality', the second 'irrationality' and the third 'procedural impropriety'.
That is not to say that further development on a case by case basis may not in
course of time add future of the principle of 'proportionality', which is
recognised in the administrative law of several of our fellow members of the
European Economic Community......".
 Proportionality
 The Indian Supreme Court consciously considered the application of the concept of
proportionality for the first time in the case of Union of India v. G. Ganayutham.
In that case the Supreme Court after extensively reviewing the law relating to
Wednesbury unreasonableness and proportionality prevailing in England held that
the Wednesbury unreasonableness will be the guiding principle in India, so long as
fundamental rights are not involved. However, the court refrained from deciding
whether the doctrine of proportionality is to be applied with respect to those cases
involving infringement of fundamental rights.
 Om Kumar and Ors v. Union of India

 In such cases, the administrative action in our country, in our view, has to be
tested on the principle of 'proportionality', just as it is done in the case of the
main legislation. This, in fact, is being done by our Courts.
 In Ganayutham, the above aspect was left for further discussion. However, we
are now pointing out that in administrative action affecting fundamental
freedoms, proportionality has always been applied in our country though the
word 'proportionality' has not been specifically used.
 Om Kumar And Ors vs Union Of India
 The development of the principle of 'strict Scrutiny" or 'proportionality' in Administrative Law in
England is, however, recent. Administrative action was traditionally being tested on Wednesbury
grounds. But in the last few years, administrative action affecting the freedom of expression or liberty
has been declared invalid in several cases applying the principle of 'strict scrutiny'. In the case of these
freedoms, Wednesbury principles are no longer applied. The Courts in England could not expressly
apply proportionality in the absence of the Convention but tried to safeguard the rights zealously by
treating the said rights as basic to the Common Law and the Courts then applied the strict scrutiny test.
In the Scatcher Case Alt. General v. Guardian Newspapers Ltd., (No.2) (1990) 1 AC 109 (at pp. 283-
284), Lord Goff stated that there was no inconsistency between the Convention and the Common Law.
In Derbyshire Country Council v. Times Newspapers Ltd., (1993) AC 534, Lord Keith treated
freedom of expression as part of Common Law, Recently, in R v. Secretary of State for Home
Department, Ex P. Simms, [1999] 3 All ER 400 (H.L.), the right of a prisoner to grant an interview
to a journalist was upheld treating the right as part of the Common Law. Lord Hobhouse held the
policy of the administrator was disproportionate. The need for a more intense and anxious judicial
scrutiny in administrative decisions which engage fundamental human rights was re-emphasised in R
v. Lord Saville Ex. pt., [1999] 4 All ER 860 870, 872 CCA. In all these cases, the English Courts
applied the 'strict scrutiny' test rather than describe the test as one of 'proportionality'. But, in any
event, in respect of these rights 'Wednesbury' rule has ceased to apply.
 We may point out that in Israel, the Supreme Court of Israel has now recognised
'proportionality' as a separate ground in administrative law- different from unreasonableness.
It is stated that it consists of three elements. First, the means adopted by the authority in
exercising its power should rationally fit the legislative purpose. Secondly, the authority
should adopt such means that do not injure the individual more than necessary. And
third, the injury caused to the individual by the exercise of the power should not be
disporportional to the benefit which accrues to the general public. Under this test, the
court recently invalidated several administrative actions

 If, under Article 14, administrative action is to be struck down as discriminative,

proportionality applies and it is primary review. If it is held arbitrary, Wednesbury applies
and it is secondary review:
 in India where administrative action is challenged under Article 14 as being
discriminatory, equals are treated unequally or unequals are treated equally, the
question is for the Constitutional Courts as primary reviewing Courts to consider
correctness of the level of discrimination applied and whether it is excessive and
whether it has a nexus with the objective intended to be achieved by the
administrator. Here the Court deals with the merits of the balancing action of the
administrator and is, in essence, applying 'proportionality' and is a primary reviewing
authority.
 But where, an administrative action is challenged as 'arbitrary' under Article 14 on the
basis of Royappa (as in cases where punishments in disciplinary cases are challenged),
the question will be whether the administrative order is 'rational' or 'reasonable' and the
test then is the Wednesbury test.
 The Court while reviewing punishment and if it is satisfied that Wednesbury principles
are violated, it has normally to remit the matter to the administrator for a fresh decision
as to the quantum of punishment. Only in rare cases where there has been long delay in
the time taken by the disciplinary proceedings and in the time taken in the Courts, and
such extreme or rare cases can the Court substitute its own view as to the quantum of
punishment.