UNDERSTANDING WEDNESBURY PRINCIPLE OF UNREASONABLENESS

Wednesbury Principle of unreasonableness (or reasonableness)

Courts rarely interfere in commercial, policy, and financial decisions taken by the Governments (executive). Courts enunciated the principle that the modern trend points to judicial restraint in administrative action. The Court does not sit as a court of appeal but merely reviews the manner in which the decision was made. The Court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise, which itself may be fallible. The Government must have freedom of contract. In other words, a fairplay in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi- administrative sphere. However, when challenged, the decision of the executive must not only be tested by the application of Wednesbury principles of unreasonableness but must be free from arbitrariness, bias or actuated by mala fides.

Associated Provincial Picture Houses vs. Wednesbury Corporation [1 KB 223, EWCA Civ. 1] is a 1947 decision by the Court of Appeals that sets out the standard of unreasonableness of public-body decisions that would make them liable to be quashed on judicial review, known as Wednesbury unreasonableness.  The court speaking through Lord Greene refused to interfere with the decision taken by the Local Licensing Authority under the provisions of the Sunday Entertainments Act, 1932 which authorised opening cinemas on Sunday subject to such conditions to the SATISFACTION of the Authorities.  In Associated Pictures (Supra) the Local Authorities allowed cinemas to be open on Sundays provided no children under 15 were admitted on Sundays.  This decision when challenged by Wednesbury Corporation, Lord Greene speaking for the Court of Appeal laid down three grounds of interference by the Court (under the realm of Judicial Review) if the decision making process under scrutiny reveals that 1) in reaching the decision, the Defendant took into account factors that ought not to have been taken into account (ILLEGALITY); 2) the Defendant failed to take into account factors that ought to have been taken into account (PROCEDURAL IMPROPRIETY); and, 3) the decision was so unreasonable that no reasonable authority or prudent person would have considered it (IRRATIONALITY). The third limb – that the decision was “so absurd that no sensible person could ever dream that it lay within the powers of the authority” [229] has become known as Wednesbury Unreasonableness.  In this particular case, whether or not the Court thought the condition was fair or the best outcome was irrelevant – it was only relevant whether it was lawful, and it was.  This was because the Parliament wants the decision maker to make the decision, not the Court.  Therefore Associated’s case failed.  This case therefore shows that a Court can only intervene in very limited circumstances.  THE DOCTRINE OF WEDNESBURY PRINCIPLE OF UNREASONABLENESS IS A PRINCIPLE OF JUDICIAL REVIEW THAT APPLIES ONLY WHEN THERE IS A DESCRETION CREATED BY A STATUTE AND THE AUTHORITY EXERCISED IT SO IRRATIONALY THAT IT COULD BE ONLY OUT OF WHIMS, FANCIES OR PRIVATE AFFECTIONS.

Later cases developed upon the Wednesbury Principle only to dilute it by expanding the scope of Judicial review.  Reference may be made to Sir Edward Coke CJ’s dicta in Rookes Case [(1598) 5 Co.Rep. 99b] which said - “notwithstanding the words of the commission give authority to the commissioners to do according to their discretions, yet their proceedings ought to be limited, and bound with the rule of reason and law. For discretion is a science or understanding to discern between falsity and truth, between wrong and right, between shadows and substance, between equity and colourable glosses and pretences, and not to do according to their wills and private affections”. Similarly, in Council of Civil Service Unions vs. Minister for the Civil Service [1984] UKHL 9, or the GCHQ case, Lord Diplock widened the grounds of judicial review by including the fourth pillar of “Proportionality”.  The principle of proportionality envisages that a public authority ought to maintain a sense of proportion between his particular goals and the means he employees to achieve those goals, so that his action impinges on the individual rights to the minimum extent to preserve public interest.  The Wednesbury principles have also been diluted, if not rejected, by the House of Lords in Ex parte Daly in 2001 [Regina vs. Secretary of State For The Home Department, Ex Parte Daly, [2001] UKHL 26], when Lord Cooke severely criticised in the following words “the day will come when it will be more widely recognised that Associated Provincial Picture Houses Ltd vs. Wednesbury Corporation [1948] 1 KB 223 was an unfortunately retrogressive decision in English administrative law, insofar as it suggested that there are degrees of unreasonableness and that only a very extreme degree can bring an administrative decision within the legitimate scope of judicial invalidation.  The depth of judicial review and the deference due to administrative discretion vary with the subject matter.  It may well be, however, that the law can never be satisfied in any administrative field merely by a finding that the decision under review is not capricious or absurd.”

Therefore, what was once considered to be the Wednesbury Principle of Unreasonableness can be safely said to have become Wednesbury Principle of Reasonableness. The septuagenarian journey FROM - interfere only if unreasonable – TO – find reason to interfere has been a long drawn one.  If there is however, Substantial Compliance to the Statute and the discretion is to attain the object of the act, no interference is required.

 

Substantial compliance, doctrine of

The Doctrine of Substantial Compliance has been followed in India.  The selected text from two judgments reproduced below may sum up the development of the Doctrine in India.

 

T.M. Jacob vs. C. Poulose AIR 1999 SC 1359 [5 Judges]

 

Para 40: The object of serving a "true copy" of an Election Petition and the affidavit filed in support of the allegations of corrupt practice on the respondent in Election Petition is to enable the respondent to understand the charge against him so that he can effectively meet the same in the written statement and prepare his defence. The requirement is, thus, of substance and not of form.

 

Para 41: The expression "copy" in Sec. 81(3) of the Act, in our opinion, means a copy which is substantially so and which does not contain any material or substantial variation of a vital nature as could possibly mislead a reasonable person to understand and meet the charges / allegations made against him in the election petition. Indeed a copy which differs in material particulars from the original cannot be treated as a true copy of the original within the meaning of Sec. 81(3) of the Act and the vital defect cannot be permitted to be cured after the expiry of the period of limitation.

 

Para 42: We have already referred to the defect which has been found in the copy of the affidavit served on the appellant in the present case. There is no dispute that the copy of the affidavit served on the appellant contained the endorsement to the effect that the affidavit had been duly signed, verified and affirmed by the election petitioner before a Notary. Below the endorsement of attestation, it was also mentioned : Sd/- Notary. There, however, was an omission to mention the name and particulars of the Notary and the stamp and seal of the Notary in the copy of the affidavit served on the appellant. There was no other defect pointed out either in the memo of objection or in C.M.P. No. 2903 of 1996 or even during the course of arguments in the High Court or before us. Could this omission be treated as an omission of a vital or material nature which could possibly mislead or prejudice the appellant in formulating his defence? In our opinion, No. The omission was inconsequential. By no stretch of imagination can it be said that the appellant could have been misled by the absence of the name and seal or stamp of the Notary on the copy of the affidavit, when endorsement of attestation was present in the copy which showed that the same had been signed by the Notary. It is not denied that the copies of the Election Petition and the affidavit served on the appellant bore the signatures of respondent No. 1 on every page and the original affidavit filed in support of the Election Petition had been properly signed, verified and affirmed by the election petition and attested by the Notary. There has, thus, been a substantial compliance with the requirements of Sec. 81(3) read with the proviso to Sec. 83(1)(c) of the Act. Defects in the supply of true copy under Sec. 81 of the Act may be considered to be fatal, where the party has been misled by the copy on account of variation of a material nature in the original and the copy supplied to the respondent. The prejudice caused to the respondent in such cases would attract the provisions of Sec. 81(3) read with Sec. 86(1) of the Act. Same consequence would not follow from non-compliance with Sec. 83 of the Act.

 

Para 43: We are unable to agree with Mr. Salve that since proceedings in election petitions are purely statutory proceedings and not "civil proceedings" as commonly understood, there is no room for invoking and importing the doctrine of substantial compliance into Sec. 86(1) read with Sec. 81(3) of the Act. It is too late in the day to so urge. The law as settled by the two Constitution Bench decisions of this Court referred to above is by itself sufficient to repel the argument of Mr. Salve. That apart, to our mind, the Legislative intent appears to be quite clear, since it divides violations into two classes - those violations which would entail dismissal of the election petition under Sec. 86(1) of the Act like non-compliance with Sec. 81(3) and those violations which attract Sec. 83(1) of the Act i.e. non-compliance with the provisions of Sec. 83. It is only the violation of Sec. 81 of the Act which can attract the application of the doctrine of substantial compliance as expounded in Murarka Radhey Shyam (AIR 1964 SC 1545) and Ch. Subbarao's cases (AIR 1964 SC 1027).

 

The defect of the type provided in Sec. 83 of the Act, on the other hand, can be dealt with under the doctrine of durability, on the principles contained in the Code of Civil Procedure. This position clearly emerges from the provisions of Sections 83(1) and 86(5) of the Act, which read :

 

"83. Contents of petition.- (1) An election petition-

(a) shall contain a concise statement of the material facts on which the petitioner relies;

 

(b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and

 

(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings."

 

"86. Trial of election petition.-

. . .. . .. . .

 

(5) The High Court may, upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition."

 

Para 44: Applying the test as laid down in Murarka Radhey Shyam Ram Kumar's case (supra), to the fact situation of the present case, we come to the conclusion that the defects complained of in the present case were not such as could have misled the appellant at all.  The non-mention of the name of the notary or the absence of the stamp and seal of the notary in the otherwise true copy supplied to the appellant could not be construed to be omission or variation of a vital nature and, thus, the defect, if at all it could be construed as a defect was not a defect of any vital nature attracting consequences of Sec. 86(1) of the Act.  Under the circumstances, it must be held that there was no failure on the part of the election petitioner to comply with the last part of sub-sec. (3) of Sec. 81 of the Act and, under the circumstances, Sec. 86(1) of the Act was not attracted and the election petition could not have been dismissed by reason of the alleged failure to comply with the provisions of Sec. 81 of the Act.  In this connection, it is also relevant to note that the appellant, neither in the memo of objections nor in the written objections or in C.M.P. No. 2903 of 1996 has alleged that he had been misled by the absence of the name, rubber stamp and seal of the notary on the copy of the affidavit supplied to him or that he had been prejudiced to formulate his defence.  Even during the arguments, learned counsel for the appellant was not able to point out as to how the appellant could have been prejudiced by the alleged omissions on the copy of the affidavit served on him.

 

Para 45: In our opinion it is not every minor variation in form but only a vital defect in substance which can lead to a finding of non-compliance with the provisions of Sec. 81(3) of the Act with the consequences under Sec. 86(1) to follow.  The weight of authority clearly indicates that a certain amount of flexibility is envisaged. While an impermissible deviation from the original may entail the dismissal of an election petition under Sec. 86(1) of the Act, an insignificant variation in the true copy cannot be construed as a fatal defect.  It is, however, neither desirable nor possible to catalogue the defects which may be classified as of a vital nature or those which are not so.  It would depend upon the facts and circumstances of each case and no hard and fast formula can be prescribed.  The tests suggested in Murarka Radhey Shyam's case (AIR 1964 SC 1545) (supra) are sound tests and are now well settled.  We agree with the same and need not repeat those tests.  Considered in this background, we are of the opinion that the alleged defect in the true copy of the affidavit in the present case did not attract the provisions of Sec. 86(1) of the Act for alleged non-compliance with the last part of Sec. 81(3) of the Act and that there had been substantial compliance with the requirements of Sec. 81(3) of the Act in supplying 'true copy' of the affidavit to the appellant by the respondent.

 

Commissioner of Central Excise, New Delhi vs. Hari Chand Shri Gopal & Ors. 2011 (1) SCC 236 [5 Judges]

 

Para 22: The law is well settled that a person who claims exemption or concession has to establish that he is entitled to that exemption or concession.  A provision providing for an exemption, concession or exception, as the case may be, has to be construed strictly with certain exceptions depending upon the settings on which the provision has been placed in the Statute and the object and purpose to be achieved.  If exemption is available on complying with certain conditions, the conditions have to be complied with.  The mandatory requirements of those conditions must be obeyed or fulfilled exactly, though at times, some latitude can be shown, if there is a failure to comply with some requirements which are directory in nature, the non-compliance of which would not affect the essence or substance of the notification granting exemption.  In Novopan Indian Ltd. (supra), this Court held that a person, invoking an exception or exemption provisions, to relieve him of tax liability must establish clearly that he is covered by the said provisions and, in case of doubt or ambiguity, the benefit of it must go to the State.  A Constitution Bench of this Court in Hansraj Gordhandas vs. H.H. Dave (1996) 2 SCR 253, held that such a notification has to be interpreted in the light of the words employed by it and not on any other basis.  This was so held in the context of the principle that in a taxing statute, there is no room for any intendment, that regard must be had to the clear meaning of the words and that the matter should be governed wholly by the language of the notification, i.e., by the plain terms of the exemption.

 

Para 23:  Of course, some of the provisions of an exemption notification may be directory in nature and some are of mandatory in nature.  A distinction between provisions of statute which are of substantive character and were built in with certain specific objectives of policy, on the one hand, and those which are merely procedural and technical in their nature, on the other, must be kept clearly distinguished.  In Tata Iron and Steel Co. Ltd. (supra), this Court held that the principles as regard construction of an exemption notification are no longer res integra; whereas the eligibility clause in relation to an exemption notification is given strict meaning wherefor the notification has to be interpreted in terms of its language, once an assessee satisfies the eligibility clause, the exemption clause therein may be construed literally.  An eligibility criteria, therefore, deserves a strict construction, although construction of a condition thereof may be given a liberal meaning if the same is directory in nature.

 

Para 24: The doctrine of substantial compliance is a judicial invention, equitable in nature, designed to avoid hardship in cases where a party does all that can reasonably expected of it, but failed or faulted in some minor or inconsequent aspects which cannot be described as the "essence" or the "substance" of the requirements.  Like the concept of "reasonableness", the acceptance or otherwise of a plea of "substantial compliance" depends upon the facts and circumstances of each case and the purpose and object to be achieved and the context of the prerequisites which are essential to achieve the object and purpose of the rule or the regulation.

 

Such a defence cannot be pleaded if a clear statutory prerequisite which effectuates the object and the purpose of the statute has not been met.  Certainly, it means that the Court should determine whether the statute has been followed sufficiently so as to carry out the intent for which the statute was enacted and not a mirror image type of strict compliance.  Substantial compliance means "actual compliance in respect to the substance essential to every reasonable objective of the statute" and the court should determine whether the statute has been followed sufficiently so as to carry out the intent of the statute and accomplish the reasonable objectives for which it was passed.  Fiscal statute generally seeks to preserve the need to comply strictly with regulatory requirements that are important, especially when a party seeks the benefits of an exemption clause that are important.  Substantial compliance of an enactment is insisted, where mandatory and directory requirements are lumped together, for in such a case, if mandatory requirements are complied with, it will be proper to say that the enactment has been substantially complied with notwithstanding the non- compliance of directory requirements.  In cases where substantial compliance has been found, there has been actual compliance with the statute, albeit procedurally faulty.  The doctrine of substantial compliance seeks to preserve the need to comply strictly with the conditions or requirements that are important to invoke a tax or duty exemption and to forgive non-compliance for either unimportant and tangential requirements or requirements that are so confusingly or incorrectly written that an earnest effort at compliance should be accepted.  The test for determining the applicability of the substantial compliance doctrine has been the subject of a myriad of cases and quite often, the critical question to be examined is whether the requirements relate to the "substance" or "essence" of the statute, if so, strict adherence to those requirements is a precondition to give effect to that doctrine.  On the other hand, if the requirements are procedural or directory in that they are not of the "essence" of the thing to be done but are given with a view to the orderly conduct of business, they may be fulfilled by substantial, if not strict compliance.  In other words, a mere attempted compliance may not be sufficient, but actual compliance of those factors which are considered as essential.