Introduction

Judicial review is a court’s power to review the actions of other branches or levels of government
especially the court’s power to invalidate the legislative and executive actions as being
unconditional. The system of judicial review was inherited from Britain. The whole law of
judicial review of administrative action has been developed by judges on case-to-case. Article 42
states that “Any person appearing before any administrative official or body has a right to be
treated justly and fairly and shall have a right to apply to a court of law in respect of any
administrative decision taken against him or her.”Judicial review is thus not only an integral part
of the Constitution but is also a basic structure of the Constitution which cannot be abolished or
whittled down even by an amendment of the Constitution. Therefore, it is a Fundamental Right
in law. Thakker said, “It is not only the right and power but the duty of the Supreme Court to
protect and safe guard the Fundament Right of the people.”In the case of L. Chandra v UOI, the
court held that the power of judicial review of the High Court is a basic feature of the
Constitution which cannot be abridged or ousted.

Grounds constituting a judicial review

Generally, judicial review of any administrative action can be exercised on four grounds;

Jurisdictional Error

The term “jurisdiction” means “power to decide”. The jurisdiction of the administrative authority
depends upon facts the existence of which is necessary to the initiation of proceedings & without
which the act of the Court is a nullity. These are called “jurisdictional facts”. This ground of
judicial review is based on the principle that administrative authorities must correctly understand
the law and it limits before any action is taken. Court may quash an administrative action on the
ground of ultra vires in following situations

In Rafiq Khan vs. State of U.P [ii]., Panchayat Raj Act, 1947, did not empower the Sub-
Divisional Magistrate to modify the order of conviction & sentence passed by a Panchayat
Adalat. He could either quash the entire order or cancel the jurisdiction of the Panchayat Adalat.
The magistrate maintained the conviction of the accused in respect of one of the offences only &

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quashed the conviction in respect of other offences. The Allahabad High Court quashed the
conviction in respect of other offences by a writ of certiorari.

Irrationality

A general principle which has remained unchanged is that discretionary power conferred on an
administrative authority is required to be exercised reasonably. A person in whom is vested a
discretion must exercise his discretion upon reasonable grounds. A decision of the administrative
authority shall be considered as irrational if it is so outrageous in its defiance to logic or accepted
norms of moral standard that no sensible person, on the given facts and circumstances, could
arrive at such a decision. Irrationality as a ground of judicial review was developed by the Court
in Associated Provincial Picture House v. Wednesbury [x], later came to be known as
“Wednesbury test” to determine ‘irrationality’ of administrative action. The local authority had
the power to grant licenses for the opening of cinemas subject to such conditions as the authority
‘thought fit’ to impose. The authority, when granting a Sunday licence, imposed a condition that
no children under the age of 15 years should be admitted.

In Roberts vs. Hopwood[xi], the council, in adopting a policy of paying higher wages payers.than
the national average for its workers, was unreasonable, for the discretion of the council was
limited by law. It was not free to pursue a socialist policy at the expense of its rate

Procedural impropriety

Failure to comply with procedures laid down by statute may invalidate a decision. Procedural
Impropriety is to encompass two areas: failure to observe rules laid down in statute; and a failure
to observe the basic common law rule of natural justice. In Bradbury v Enfield London
Borough Council [xix], the Education Act 1944 provided that, if a local education authority
intends to establish new schools or cease to maintain existing schools, notice must be given to
the minister, following which, public notice must be given in order to allow interested parties to
comment.  The Council breached the requirement of public notice and the plaintiffs sought an
injunction. The Council claimed that educational chaos would occur if they were required to
comply with the procedural requirements. That plea met with little sympathy in court.

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Proportionality

Proportionality means that the administrative action should not be more drastic than it ought to
be for obtaining desired result. Proportionality is sometimes explained by the expression ‘taking
a sledgehammer to crack a nut’. Thus this doctrine tries to balance means with ends.
Proportionality shares space with ‘reasonableness’ and courts while exercising power of review
sees, ‘is it a course of action that could have been reasonably followed’. Courts in India have
been following this doctrine for a long time but English Courts have started using this doctrine in
administrative law after the passing of the Human Rights Act, 1998. Thus if an action taken by
the authority is grossly disproportionate, the said decision is not immune from judicial scrutiny.
The sentence has to suit the offence & the offender. It should not be vindictive or unduly harsh.

In Hind Construction Co. vs. Workmen [xxiii], some workers remained absent from duty
treating a particular day as holiday. They were dismissed from service. The industrial tribunal set
aside the action. This court held that the absence could have been treated as leave without pay.
The workmen might have been warned and fined. The Court said that it was impossible to think
that any reasonable employer would have imposed the extreme punishment of dismissal on its
entire permanent staff in this manner. The court explained that the punishment imposed the
workmen was not only severe but out of proportion.

Legitimate Expectation

A legitimate expectation will arise in the mind of the complainant wherever he or she has been
led to understand — by the words or actions of the decision maker – that certain procedures will
be followed in reaching a decision. A Legitimate Expectation amounts to an expectation of
receiving some benefit or privilege to which the individual has no right. Legitimate Expectation
means expectation having some reasonable basis. The doctrine of Legitimate Expectation has
evolved to give relief to the people when they are not able to justify their claims on the basis of
law in the strict sense of the term they had suffered civil consequences because their legitimate
expectation has been violated. Two considerations apply to legitimate expectations. The first is
where an individual or group has been led to believe that a certain procedure will apply. The

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second is where an individual or group relies upon a policy or guidelines which have previously
governed an area of executive action.

In R v Liverpool Corporation ex parte Liverpool Taxi Fleet Operators Association[xxvi], the

corporation had given undertakings to the taxi drivers to the effect that their licenses would not
be revoked without prior consultation. When the corporation acted in breach of this undertaking,
the court ruled that it had a duty to comply with its commitment to consultation.  A public body
may act in a manner which creates an expectation in the mind of a person or body.

Mala fides

 Mala fides or bad faith means dishonest intention or corrupt motive. Even though it may be
difficult to determine whether or not the authority has exceeded its powers in a particular case
because of the broad terms in which the statute in question may have conferred power on it, the
administration action may, nevertheless, be declared bad if the motivation behind the action is
not honest. At times, the courts use the phrase “mala fides” in the broad sense of any improper
exercise or abuse of power. In Jaichand v. State of West Bengal, the Supreme Court observed
that mala fide exercise of power does not necessarily imply any moral turpitude as a matter of
law. It only means that the statutory power is exercised for purposes foreign to those for which it
is in law intended.

Improper purpose

 If a statute confers power for one purpose, its use for a different purpose will not be regarded as
a valid exercise of the powers and the same may be quashed. The cases of exercise of
discretionary power from improper purposes have increased in modern times because
conferment of broad discretionary power has become usual tendency. The orders based on
improper purpose were quashed first in the cases concerning the exercise of powers of
compulsory acquisition in England. In a few cases on preventive detention the Supreme Court
has held that the power of preventive detention cannot be used as a convenient substitute for
prosecuting a person in a Criminal Court. In Srilal Shav v. State of West Bengal, a preventive
detention order was issued against a person mainly on the ground that he had stolen railway
property. He had documents in his possession to prove his bona fide and to prove that he had

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purchased the goods in the open market. A criminal case filed against him was dropped and the
mentioned preventive detention was passed in its place. The order was held to be bad by the
court.

 Irrelevant considerations

A discretionary power must be exercised on relevant and not on irrelevant or extraneous

considerations. It means that power must be exercised taking into account the considerations
mentioned in the statute. If the statute mentions no such considerations, then the power is to be
exercised on considerations relevant to the purpose for which it is conferred. If the authority
concerned plays attention to, or takes into account wholly irrelevant or extraneous circumstances,
events or matters then the administrative action is ultra vires and will be quashed. Thus where an
administrative order is issued on formal grounds or considerations which are irrelevant, it will
quashed. The exercise of discretionary power should not be influenced by considerations that
cannot be lawfully taken into account. The determination of the considerations which are
relevant, and those which are irrelevant, is a matter of inference from the general terms of the
statute.

Mixed considerations

Sometimes, it so happens that the order is not wholly based on irrelevant or extraneous
considerations. It is founded partly on relevant and existent considerations and partly on
irrelevant or non-existent considerations. The judicial pronouncements do not depict a uniform
approach on this point. In preventive detention cases, the courts have taken a strict view of the
matter and has held such an order invalid if based on any irrelevant ground along with relevant
grounds, arguing that it is difficult to say to what extent the bad grounds operated on the mind of
the administrative authority and whether it would have passed the order only on the basis of the
relevant and valid grounds. In Shibbanlal v. State of Uttar Pradesh, the petitioner was detained
on two grounds: first, that his activities were prejudicial to the maintenance of supplies essential
to the community, and second, that his activities were injurious to the maintenance of public
order. Later the government revoked his detention on the first ground as either it was
unsubstantial or non-existent but continued it on the second. The court quashed the original
detention order.

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Leaving out relevant considerations

If in exercising its discretionary power, an administrative authority ignores relevant

considerations, its action will be invalid. An authority must take into account the considerations
which a statute prescribes expressly or impliedly. In case the statute does not prescribe any
considerations but confers power in a general way, the court may still imply some relevant
considerations for the exercise of the power and quash an order because the concerned authority
did not take these into account. Unless detailed reasons are given from which it can be inferred
that the authority took action after ignoring material considerations it is hard to have the action
quashed on this basis.

Colourable exercise of power

At times, the courts use the idiom “colourable exercise of power” to denounce an abuse of
discretion. Colourable exercise means that under the “colour” or “guise” of power conferred for
one purpose, the authority is seeking to achieve something else which it is not authorized to do
under the law in question then the action of the authority shall be invalid and illegal. Viewed in
this light, “colourable exercise of power” would not appear to be a distinct ground of judicial
review of administrative action but would be covered by the grounds already noticed, improper
purpose or irrelevant considerations. The same appears to be the conclusion when reference is
made to cases where the ground of “colourable exercise of power” has been invoked. In the
Somawanti v. State of Punjab, the Supreme Court stated as the follows with reference to
acquisition of land under the Land Acquisition Act: “Now whether in a particular case the
purpose for which land is needed is a public purpose or not is for the State Government to be
satisfied about subject to one exception. The exception is that if there is a colourable exercise of
power the declaration will be open to challenge at the instance of the aggrieved party. If it
appears that what the Government is satisfied about is not a public but a private purpose or no
purpose at all action on the Government would be colourable as not being relatable to the power
conferred upon it by the Act and its declaration will be a nullity.”

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REMEDIES:
There are only a few remedies that the courts can grant for judicial review
Certiorari
The word Certiorari is a Latin word which simply means ‘to be informed’.  Historically it was a
royal command or demand for information.  The practice was that the sovereign who was the
king or the queen upon receiving a petition from a subject complaining of some injustice done to
him would state that he wishes to be certified of the matter and then he would order the matter to
be brought up to him.  Ordering the matter to be brought up to him will include ordering that the
records of the proceedings be brought up to the sovereign.  The purpose of calling up the records
was in order for the sovereign to quash any decision that has been made after acquainting himself
of the matter in other words after being certified of the matter.

Majid Cockar V. Director of Pensions Nai H.C. Misc App 532 of 1998 . This was the case
between the former Chief Justice Cockar and the Director of Pensions.  In computing the pension
payable to the CJ the pensions department made a mistake in their calculations. The former Chief
Justice went to court and upon application for Judicial Review the court issued the order of
certiorari to quash the decision awarding the former CJ an amount of money as pension.

Prohibition:
The order of Prohibition is an order issued by the High Court which prohibits a body
(administrative bodies) from continuing proceedings; it will also prohibit a body from continuing
to carry out decisions wrongly or wrongfully made.  This order may be issued against judicial
body acting in an administrative capacity i.e industrial court.  It can also issue against an
administrative body performing administrative duties or against the government officials etc.  It
can be issued to stop a public body from continuing proceedings that are ultra vires.  It can also
be issued to stop an admin body from continuing to do something in excess of jurisdiction.  It
can also be used to stop an administration body from abusing their powers.

Mandamus:
The order of Mandamus is derived from the Latin word Mandare meaning to command.  It is a
court order issued to compel the performance of a public duty where a public body or official has

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unlawfully refused, declined or otherwise failed to undertake the duty.  Mandamus is a court
order issued to compel the performance of a public duty where a public body or official has
public refused failed or declined to undertake a duty. 

Daniel Nyongesa & Others V. Egerton University College Civil Appeal NO. 90 of 1989. In this
case Nyongesa’s exam results were held by the university and when he went to court, the court
issued an order of mandamus for the court to release the results. Nyongesa had requested the
university for his results and they had refused so he applied for an order of mandamus to the
court and he was granted.  There was a specific duty for the university to release the results.

Habeas Corpus writ 

Habeas Corpus writ literally means “Have the body” this writ is issue to secure the release of
person from illegal detention or without legal justification, its deals with person right of freedom.
In simple words Court direct the person and even authority who has detained individual to bring
such person before Court so that Court may decide the validity, justification, jurisdiction of such
detention. It is to be filed by any person.

Conclusion

In conclusion, judicial review is a fundamental right as provided in article 42 of the Constitution

of Uganda 1995 thus everyone is entitled to it. If denied it leads violation of one’s right and can
sue in court. However, there are some instances where judicial review may not be granted by
courts due to certain circumstances as discussed above. Therefore, although judicial review is a
fundamental right there are some limitations thus it is not an absolute right.

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References:

Brown, L. Neville & Bell, John S. (1993), French Administrative law (Oxford: Clarendon Press).

Bell, John (1992), French Constitutional Law (Oxford: Clarendon Press).

Bradley, A.W. & Ewing K.D. (12th Edition, 1997), Constitutional and Administrative Law
(London & New York: Longman).

Cane, Peter (1996), An Introduction to Administrative Law (Clarendon Press).