Greek and Latin

By Vijay Kumar

Wednesbury reasonableness derives its origin in Associated Provincial Picture Homes Limited vs. Wednesbury Corporation (1947) 2 All E.R. 680 and has been explained to require that the person entrusted with discretion must, so to speak, direct himself properly in law. He must cal his attention to 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 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.

The rationale is that the rule of law prohibits arbitrary exercise of power. There is no legal meaning assigned to the term “arbitrary”. It is clear that this word is taken in its ordinary sense. In Oxford Dictionary, it means, “not seeming to be based on reasons, system or plan”. Hence, where a decision is unreasonable, it must be arbitrary. It may be argued that where a decision maker does not arbitrarily make a decision, a decision can still be not reasonable.

The decision must be “so unreasonable that no reasonable authority could reach”. The reason is simple: such ground is to protect citizens against arbitrary decisions. To determine whether a decision is arbitrary, a benchmark should be adopted. The benchmark should be reasonableness. This is because, by definition, where a reasonable person thinks that a decision is unreasonable, the decision is arbitrary in his eyes. From the perspective of a reasonable person, the decision need not be “so unreasonable” to be arbitrary. Unreasonableness will suffice. If we require something more than reasonableness, the aim of the ground of review will be much weakened.

It is not for the court to determine whether a particular policy or particular decision taken in the fulfillment of the policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under:

(i) Illegality : This means the decision-maker must understand correctly the law that regulates his decision making power and must given effect to it.

(ii) Irrationality, namely Wednesbury unreasonableness.

(iii) Procedural impropriety.

· Furthermore, in considering whether Wednesbury reasonableness exists one must also investigate the purpose behind the change in Regulations. The effort was to simplify the grant of licences as per the Kelkar Committee. (The Delhi High Court in 2005-TIOL-210-HC-DEL-CUS)