Concept of reasonableness and non arbitrariness is a golden thread running throughout the fabric of Constitution. Any administrative action which is arbitrary, irrational, unreasonable, or discriminatory, runs the risk of Judicially Reviewed and subsequently declared ultra vires. Through this paper researcher makes an attempt to analysis the doctrine of “Arbitrariness” and “Unreasonableness” in the administrative functioning, and the consequences thereof through the usage of landmark cases.
Mistakes are the greatest teacher; only challenge that remains is to learn from the same. Following this approach and due to constraints of time and word limit the researcher has limited the Case analysis to the cases wherein courts have held that there was Arbitrariness and/or Unreasonableness, in the administrative functioning. Followed by deep analysis as why that particular action was classified as so, and its implications.
For the purpose of analysing the judicial position researcher has chosen four cases wherein Courts held that the acts of administrative to be “Arbitrary” and “Unreasonable”. First one of them is Robert v Hopwood,[1] which is one the most landmark cases in this respect. Followed by S. R. Bommai case,[2] which is very landmark judgment in this respect in India, but researcher has constrained himself from going in depth for the same for the reason of being various other political, constitutional, and legal provisions being at play. This is followed by Onkar Lal Bajaj[3] case which deals with en bloc cancellation of various licenses without having any solid grounding for the same. The final case in the analysis is Ivy C. Da. Conceicao case,[4] which one of the recent Supreme Court judgments in this regards and lays down the principle very clearly.
Background
Arbitrary:- Broadly speaking when any person in authority, uses his authoritative position to act by ignoring reason or/and facts un-sustained by principle or provision of rule, based on personal preferences or/and prejudices, he is said to be acting arbitrarily.
Reasonable:- It is very difficult to define the term “Reasonable”, but can be defined in reference to circumstances of actor, wherein acting reasonably actor would know or ought to know.
Cases
What is the test of reasonableness that can be employed to determine whether particular set of executive decision is unreasonable and arbitrary? Whether simply because court finds particular exercise of executive power unreasonable, makes the exercise unreasonable? Careful reading of all these judgments shows that Courts have applied higher standard for classifying certain executive action to be unreasonable. Merely because Judge thinks, that the action has not been done in best regards to prudence, necessity, or convenience, unaccompanied by necessary qualification and/or exceptions does not make it unreasonable. For being classified as such the action taken must be such that, no justification for the same exists in the mind of reasonable person, or it manifests unjustness, capriciousness, partiality, and inequality in its operation. Thus very high degree of standard of proof is required for action to be classified as unreasonable and arbitrary as will be illustrated in the following section with the help of various case laws.
Roberts v Hopwood, 1925 AC 578
Brief Facts
Metropolitan Borough Council was given discretion to determine wages for the workers. Invoking this provision min wage of four Euros per week was fixed for lowest grade of worker by the authority. World War had just ceased and cost of living had reduced drastically, from 176 percent to 82 percent, and as per auditor one euro must have been fixed back. Court held that exercise of power disregarding the labour conditions was not proper exercise of discretion thus action was bad, and word “think” was read as “reasonably think”.
Analysis
In Roberts’s case if we carefully analyse, that prevalent market cost for min wage per week was 1 Euros per Week for the period objections were being raised in the court, while the Council had fixed it to be 4 Euros per week. This period was subsequent to World War 1, though during the war cost of labour and living had increased but situation was getting back to normal, and prices were going back down.
An objective analysis of the high amount being given, clearly reveal that no matter how discretion was exercised such large amount of wages couldn’t have been arrived by anyone, and it seems like a pure gift (gratuitous in nature). The very fact that council had failed to take into account relevant facts, which were work to be done, and purchasing power of the sums paid. The decision seems to be made on basis in blatant ignorance of existing facts, thus classified it as unreasonable and arbitrary.
Reservations
The Court seemed to be very insistent that the work done and purchasing power must have been taken into account while determining wages. TO this point of the court, researcher would like to raise critic to relying on Kruse v Jognson’s case,[5] since the test in this particular test is whether exercise of power is such that in utter disregards to facts or law, courts must be very reserved and reluctant in determining how particular discretion ought to be exercised. By laying down certain criteria and test which courts wants to be considered while determining whether wages paid were proper or not, court is in fact entering into discretion of conferred upon local authority. Though in this case their does not seems to be any justification for exercise of power by authority for reaching particular wage, the court’s expectation in regards with criteria to be tested for determining price didn’t seem to bear any impact on outcome. But the very fact court is trying to come up with some sort of absolute standard is in itself problematic. And thus case must be appreciated to be good in law, to the extent of reservations expressed by researcher.
S. R. Bommai v. Union of India, (1994) 3 SCC 1
Brief Facts
Emergency powers were being invoked by President u/a 356 of Constitution. Court unwilling to interfere with this extraordinary power granted in constitution unless Mala Fide is shown on the face of it. Held, that the conclusion so reached was so unreasonable that no reasonable person could ever come to it. Thus, Presidents decision not justifiable, thus bad exercise of executive power.
Analysis
In Bommai’s case wherein exercise of Emergency power, the facts taken into consideration were not the facts that ought to be taken into consideration as per law, but were the facts which were more politically driven. The law clearly lays down that State must be failing to run as per provisions of constitution, while the application of this provision seems to be done in regards with every state government having different government from the one in Union. Thus only test that needs to be applied is whether president applied any test to take into consideration, whether state cannot be run in accordance to provisions of constitution. Executive’s failure to illustrate the same shows that the action was capricious and arbitrary.
Onkar Lal Bajaj v. Union of India, (2003) 2 SCC 673
Brief Facts
There was allegation in Newspaper in regards with allotment of retail outlets for petrol pumps, LPG, and SKO LDO dealerships having touch political patronage, with name of around 160 allottees. This further caused uproar in Parliament, subsequent to this uproar in press and parliament, Prime Minister directed that all such allotments were to be cancelled, and selection process to be started from scratch citing the reason of fair play, larger public interest, and probity in government. Terms of agreement provided government with power to cancel allotment at any stage without providing any reasons.
Court held that in absence of official data about the impact of cancellation of such allotment in En bloc, without any application of mind to veracity of media exposure, was exercise of executive power without application of mind, making them unreasonable and arbitrary, and thus bound to be quashed.
Analysis
In Onkar Lal Bajaj case, it seems that executives were befuddled by the controversy raised by the newspaper; hurriedly even without cross checking the veracity of the claims cancelled en bloc the whole allotments. What was the rational of cancelling whole of the allotment process when particular names of allottees were being raised by the newspaper? Was it not possible to separate tainted allottees from the genuine one, especially when insinuation was in regards with less 10% of the allottees. All these together goes on showing that there was no application of mind, and the action taken were whimsical, and arbitrary, and thus unsustainable.
Reservations
Court suggested ideally there must have been setting up of commission to probe into allotment to political kin, and beneficiaries, based on allegations in controversy. Relying on Pukhraj v Collector of Central Excise, MP,[6] researcher would again like to critic, court should not lay down best practices merely because of the fact that many possible way exist for exercise of particular “reasonable” discretion that exists. And court must limit itself to question whether discretion was exercised by executive taking into account facts and law.
Ivy C. Da. Conceicao v. State of Goa and others, (2017) 3 SCC 619
Brief Facts
Appellant was teaching government aided minority educational institute for 21 years, was qualified for the post of Principal, but was only appointed in-charge Principal. While certain other persons who were less qualified than him for that particular post, were appointed as Principals. Minority Institutes has discretion in appointing and promoting, head of institutes unfettered by guidelines issued by state, and thus Autonomous in their functioning. Held though autonomous, even minority institutes are bound to follow fair procedures in exercise of their power, which is both reasonable and fair. The matter was sent back to HC to consider whether exercise of that power was done reasonably.
Analysis
In this particular case fact relates to appointment of principal, contention of the appellant is that based on the criteria of seniority he must have been appointed to that particular post. While Institute argues that as being bestowed with the status of minority it can appoint principal on the basis it deems fit. And the other persons appointed as Principal were well qualified, thus there was nothing done extra legal, as they were otherwise well qualified to be appointed as Principal. But reading of the judgment clearly states that nowhere it is mentioned how they reached the particular conclusion of appointing someone as Principal, and someone else equally qualified was not appointed in that position. To this very aspect Supreme Court directs HC to reinitiate the enquiry to check if there has been application of the mind.
Salient Features
One very peculiar thing about this case needs to be noted, Supreme Court directed HC to enquire whether there has been application of mind to relevant facts and law, and cautioned HC from restricting itself from applying the criteria of seniority alone. This shows the correct application of law by the Supreme Court, wherein they have not taken enquiry or laid down certain criterion that needs to be fulfilled, but whether some criteria has been fulfilled.
Implications
This could mean that it would be reasonable exercise of power if some rational is laid down, for example selection on basis of seniority amongst various applicable candidates, based on residence and proximity, experience, other qualifications such as past performance, feedback, interview by independent committee, all of these could or any one alone could also be taken into consideration. And executive might even engage in simply chosen amongst eligible candidates by way of lottery. Even lottery could be reasonable method of choosing the candidate. Whatever may be the criteria, it need not be best, can be applied to particular case and would be classified as totally reasonable by court.
Conclusion
Arbitrary and unreasonable exercise of executive power without application of mind needs to be quashed. Any definite standard or even best practise has its own limitations and drawbacks. It is also possible to reach diametrically opposite results, in a reasonable manner by application of same set of facts and law. A law could not be termed as unreasonable only for the reason the judge presiding thinks that particular law is unreasonable or there exists a better method for the same. To be classified as unreasonable under administrative law it is required that the particular law is so unequal and partial in its operation between different classes, is so manifestly unjust, if evinces gratuitous or oppressive interference with right of those involved, shows bad faith, so that no justification could come of them by reasonable man. Thus only thing required to be judicially scrutinised is that, whether there was application of mind in regards to facts and law, in particular situation?
Judges in most of the cases tried to go beyond the scope of this review, and have laid down the relevant factors which ought to have been taken into account while exercising particular executive power, although in the above mentioned cases because of lack of any reasonable expectation it didn’t have impact on the ratio decendi, but it could be deleterious impact in long term, wherein authority might have to take those factors as dominant consideration while reaching particular outcome. Judiciary must try to avoid such laying down of standards as there does not exist any absolute standard to which Authority must be conform too.
[1] Roberts v Hopwood, 1925 AC 578.
[2] S. R. Bommai v. Union of India, (1994) 3 SCC 1
[3] Onkar Lal Bajaj v. Union of India, (2003) 2 SCC 673
[4] Ivy C. Da. Conceicao v. State of Goa and others, (2017) 3 SCC 619
[5] Kruse v. Johnson, (1898) 2 QB 91.An action of the authority cannot be held to be unreasonable merely because the court thinks it to be unreasonable.
[6] Pukhraj v D R Kohli, Collector of Central Excise, Madhya Pradesh, AIR 1962 SC 1559. Supreme Court took a view that it was not sitting in appeal over the decision of the authority and all that was necessary was Prima Facie ground about reasonable belief.
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