Kerala High Court
The State Of Kerala vs Ambika on 26 February, 2020
Author: S. Manikumar
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 26TH DAY OF FEBRUARY 2020 / 7TH PHALGUNA, 1941
WA.No.261 OF 2020
AGAINST THE ORDER/JUDGMENT IN WP(C) 31187/2019(W) OF HIGH COURT OF
KERALA
APPELLANT/RESPONDENTS IN W.P.(C):
1 THE STATE OF KERALA
REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO THE
GOVERNMENT, DEPARTMENT FOR HOME AFFAIRS,
GOVERNMENT OF KERALA, SECRETARIAT.P.O.,
THIRUVANANTHAPURAM, PIN-695001.
2 THE SECRETARY TO THE GOVERNMENT,
DEPARTMENT OF LEGAL AFFAIRS, GOVERNMENT OF KERALA,
SECRETARIAT P O, THIRUVANANTHAPURAM, PIN-695001.
3 THE STATE POLICE CHIEF
POLICE HEADQUARTERS, VAZHUTHACAUD,
SASTHAMANGALAM P O, THIRUVANANTHAPURAM-695010.
BY ADV. SRI.K.V.SOHAN, STATE ATTORNEY
RESPONDENT/PETITIONER IN W.P.(C):
AMBIKA
W/O. SASEEDHARAN, RESIDING AT VADAKKETHARAKATH HOUSE,
NENMINI P O, GURUVAYOOR, THRISSUR DISTRICT-680104.
BY ADVS. SRI.SAJITH KUMAR V.
SRI.A.V.VIVEK
SHRI.GODWIN JOSEPH
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 26.02.2020,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WA.No.261 OF 2020 2
"C.R"
JUDGMENT
S. Manikumar, CJ Challenge in this writ appeal is to the direction issued by the writ court in W.P.(C) No.31187/2019 dated 11.12.2019, that the appellants/respondents shall consider the request of the respondent/writ petitioner afresh in view of the circular dated 18.09.2017. By observing that this is a case of political murder, by which the accused as well as the deceased have very clear political affiliations, the writ court ordered thus:
"6. Under the circumstances, the anxiety of the petitioner that the accused who belong to the ruling party may not be appropriately prosecuted in this case is justifiable. Under the circumstances, it is the duty of the Government to expel the reasonable apprehension that arises in the mind of the victim's mother in the prosecution of the case. It is apparent from the records that in the first instance, the Government was willing, but later on backed out from the demand for appointment of a Special Public Prosecutor.
Considering the entirety of the facts and circumstances of the case, I find that this is a fit case for appointment of a Special Public Prosecutor and therefore, the order of the Government at Ext.P1 is quashed and the respondents are directed to consider the request of the petitioner afresh in view of the afore-mentioned Circular and the observations of this Court, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a copy of this judgment."WA.No.261 OF 2020 3
2. Assailing the correctness of the said judgment, instant appeal is filed on the following grounds:
"A. The Hon'ble Court has failed to consider the reasons behind the Respondents' decision to reject the Petitioner's request for the appointment of a Special Public Prosecutor.
The Circular clearly states that "the appointment of Special Public Prosecutor under section 24(8) of CrPC shall be made by the Government either suo moto or on the basis of the application by any aggrieved person only when public interest demands it and not to vindicate the grievances of private persons. However such appointment shall be made only on being satisfied that the case cannot be adequately handled by any of the duly appointed Public Prosecutors who are receiving salary out of Government funds and on being satisfied that the case is highly sensational and generates extensive public interest of such magnitude as to necessitate the appointment of a more competent Advocate of good standing, as a Special Public Prosecutor."
The Circular also lays down specific criteria/categories of cases which shall ordinarily be considered for appointment of a Special Public Prosecutor. Of those, category 1 is where crimes like murder, kidnapping and rape are mentioned. The said category is extracted herein below:
"i) cases such as heinous murder or kidnapping or rape particularly of minor and which are gruesome in character shocking the collective conscience of the community at large."
It can be seen from the text quoted above that what the Circular envisages is not the appointment of Special Public Prosecutors for each WA.No.261 OF 2020 4 and every case of murder but rather only in those heinous cases of murder which are gruesome in character, and which shock the collective conscience of the community at large. The alleged murder of the Petitioner's son is only a case of a retaliatory murder. The evidence collected by the Police suggests that the Accused persons killed the Petitioner's son Anand because of the enmity they harboured against him for the murder of 1st accused's elder brother Fazil by Anand. Anand was the 2nd accused in the case of murder of the said Fazil. There is nothing in this case which suggests that it was a murder of gruesome character or that which shocks the collective conscience of the community at large.
Even if it is argued that the categories of cases given in the Circular are not an exhaustive list and cases which do not fit into any of those categories may also be considered for appointment of the Special Public Prosecutor, it still has to adhere to the general conditions set out in paragraph 3 of the Circular and quoted above. To specify, appointments are permitted only on being satisfied that the duly appointed Public Prosecutor cannot adequately handle the case and that the case is a highly sensational one and generates extensive public Interest of such magnitude as to necessitate the appointment of a more competent advocate of good standing.
B. The Writ Court has passed the impugned judgment without providing the respondents an opportunity to file any counter affidavit or statement to put on record the aforementioned factors in detail. The impugned judgment is therefore, vitiated to that extent.
C. The reasoning given by the court to hold that it is a fit case for appointment of Special Public Prosecutor is as follows:
"5. The specific reason for appointment of a Special Public Prosecutor is that,- this is case of political murder, in which WA.No.261 OF 2020 5 the accused as well as the deceased have very clear political affiliations.
6. Under such circumstances, the anxiety of the petitioner that the accused who belong to the ruling party may not be appropriately prosecuted in this case is justifiable..."
Even if this is the case, it is stated that a per the guidelines provided in the Circular, the case ought to be one that is highly sensational and one that generates excess public interest of such magnitude so as to necessitate the appointment of a more competent advocate with good standing in place of the duly appointed Public Prosecutor. These are two of the general conditions that ought to be satisfied for the appointment of Special Public Prosecutor.
D. There is nothing in the facts of the case to show that the case fits the above classification. The mere possibility of a political angle to the crimes does not ipso facto follow that the Public Prosecutors appointed in the State will be biased in prosecuting the case.
E. Under Section 24(8) of the Cr.P.C., the petitioner could have requested for the court's sanction to engage an advocate of her choice to assist the duly appointed Public Prosecutor. This is a fair and reasonable option which could have dispelled the petitioner's purported apprehensions. In any event, as explained above, in the facts and circumstances of the case, there existed no grounds for appointment of a Special Public Prosecutor instead of duly appointed Public Prosecutor."
3. Inviting our attention to Ext.P3 application submitted by the respondent for appointment of Special Public Prosecutor in Crime No. 1025/2017, Mr.K.V.Sohan, learned State Attorney, submitted that the WA.No.261 OF 2020 6 respondent has not made any specific averments regarding the capacity or the knowledge of the Government Counsel, appointed for conducting prosecution on behalf of the State and what is stated in Ext.P3 application is that, in order to conduct S.C No.505/2018 effectively, forcefully and properly, Adv. T. C. Krishna Narayanan, who has 33 years of practice at Thrissur Bar, and proficient in conducting criminal cases, may be appointed as a Special Public Prosecutor.
4. Per contra, inviting our attention to the revised guidelines issued by the Government vide Circular No.264/C4/2017/Home dated 18.09.2017, Mr.Sajith Kumar, learned counsel for the respondent, submitted that factors to be taken note for appointment of Special Public Prosecutor have not been considered by the Government. According to him, when a request was made for appointment of Special Public Prosecutor, the Additional Chief Secretary to the Government, Home (C) Department, Thiruvananthapuram by Ext.P4 communication dated 29.06.2019 addressed to the respondent, required her to submit the willingness of an Advocate for appointment as Special Public Prosecutor in S.C No.505/2018 on the files of Additional Sessions Court, Irinjalakuda, and accordingly, consent was also given. According to him, having taken the willingness of an Advocate, the Secretary to the Government, Department of Legal Affairs, Government of Kerala, WA.No.261 OF 2020 7 Thiruvananthapuram, ought not have rejected the request for appointment of Special Public Prosecutor.
5. Heard learned counsel for parties and perused the material available on record.
6. On 12.11.2017, one Mr. Anand was allegedly murdered at Guruvayoor and FIR was registered as Crime No.1025/2017 on the files of Guruvayoor Police Station. After investigation, the case is pending before the learned Additional Sessions Judge, Irinjalakkuda as S.C No.505/2018.
Respondent, mother of the deceased, made a request to the Government for appointment of Advocate, T.C.Krishna Narayanan as Special Public Prosecutor to conduct the prosecution case. The said request was rejected by the Additional Chief Secretary to the Government, Home (C) Department, Thiruvananthapuram, vide communication dated 05.10.2019, which is extracted hereunder:
"GOVERNMENT OF KERALA No. C4/112/2019/ Home (C) Department Thiruvananthapuram, Dated 05.10.2019 From The Additional Chief Secretary to Government To Smt. Ambika, Vadakke Tharakath House, Nenmini P.O., Guruvayoor, Thrissur District.WA.No.261 OF 2020 8
Sir, Sub: Home Department- Guruvayoor Police Station Crime No. 1025/2017 Case - Request for Appointment of Special Public Prosecutor - Reg.
Ref.: Your representation submitted to the Hon'ble Chief Minister
------------------------------------
Your attention is invited to the reference. The Government considered your request in detail seeking appointment of Special Public Prosecutor in Crime No. 1025/2017 of Guruvayoor Police Station. The Government after detailed examination in the light of the guidelines issued by the Home Department of the Government dated 18.09.2017 as 264/C4/2017/Home and on the basis of the opinion of the Director General of Prosecution came to the conclusion that there is no necessity of appointing a Special Public Prosecutor in the above case.
For conducting the above case, there is already a Government appointed Advocate. You are free to seek permission of the Court to assist the prosecution by appointing an Advocate of your choice under Section 24(8) of Cr.P.C.
Yours faithfully SREEJITH V.P. Under Secretary to Government For Additional Chief Secretary By Order, Section Officer"
7. Two reasons assigned by the Additional Chief Secretary to the Government, Home (C) Department, Thiruvananthapuram, for rejecting the request are:- (1) there is already a Government Advocate and (2) applicant is free to seek permission of the court to assist the prosecution by appointing an Advocate of her choice.
WA.No.261 OF 2020 98. Question to be considered is, whether the reasons assigned would satisfy the requirement of the Circular issued by the Government in the matter of appointment of a Special Public Prosecutor.
9. Government of Kerala, Home (C) Department, Thiruvananthapuram have issued a Circular No.264/C4/2017/Home dated 18.09.2017, modifying the guidelines for appointment of Special Public Prosecutors and the procedure to be followed. The relevant portion is extracted hereunder:
"3) The revised guidelines formulated are as follows:
a) The appointment of Special Public Prosecutors by the Government under Section 24(8) of Cr.P.C. shall be made by the Government either suo motu or on the basis of application by any aggrieved person only when public interest demands if and not to vindicate the grievances of private persons However, such-
appointment shall be made only being satisfied that the case cannot be adequately handled by any of the duly appointed Public Prosecutors, who are receiving salary out of Government funds and on being further satisfied that the case is highly sensational and generates extensive public interest of such magnitude as to necessitate the appointment of a more competent Advocate of good standing as a Special Public Prosecutor.
b) The following among other categories of cases, shall ordinarily be considered for the appointment of a Special Public Prosecutor:-
i) Cases such as heinous murder or kidnapping or rape particularly of minor and which are gruesome in character shocking the collective conscience of the community at large.WA.No.261 OF 2020 10
ii) Offences against property having wide ramifications such as money chain dealings, cheating cases/ land grab cases, land mafia cases or other white collar crimes involving fabrication of records, documents etc, apartment frauds, investment fraud etc.
iii) Cases involving police atrocities, custodial death, etc where the prime accused are police personnel.
iv) Offences affecting human body in which hired assassins had been engaged.
v) Crimes having Inter- State ramifications.
vi) Crimes of major magnitude involving terrorism.
vii) Cases investigated by Special investigation Team constituted by Government under Sec. 21(2)(6) of the Kerala Police Act, 2011, and committed in an extremely brutal and dastardly manner due to political or communal vengeance so as to arouse intense indignation of the Community.
viii) Cases which require specialized knowledge, such as cyber crimes, MEN intellectual property rights.
c) The appointment of Special Public Prosecutor shall be made only after consulting the District Police Chief concerned and only on the basis of the specific legal advice of the Director General of Prosecution regarding the scope of the absolute necessity of appointing a Special Public Prosecutor for effectively conducting the prosecution in the case under consideration. The District Police Chief shall obtain the willingness of the Advocate who is willing to conduct the case and report whether he is qualified to be appointed as Special Public Prosecutor under section 24(8) of Cr.P.C and has no vested interest and also with a declaration from the Advocate to the effect that she/he has no conflicting interest in the conduct of the case concerned and also whether she/he is willing to take up the assignment accepting regulation fee prescribed in WA.No.261 OF 2020 11 the Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978. The willingness/ consent of the advocate shall be in the prescribed format appended herewith.
d) Petitions seeking appointment of Special Public Prosecutor may be rejected if the case under consideration does not come under any of the above categories. The petitioner in such petition shall be free to move the trial court concerned for engaging an Advocate to assist the prosecution as provided under the proviso to Section 24(8) Cr. P.C. In cases where the appointment of Special Public Prosecutor is ordered by the Government on the basis of a petition by an aggrieved person, the Government may or may not appoint the Advocate whose name is suggested by the aggrieved person. If the Government are not satisfied with the name suggested by the petitioner, the Government may in its discretion appoint another suitable or competent lawyer, as the Special Public Prosecutor. The Government may be considered necessary obtain specific legal advice from the Director General of Prosecution regarding the necessity of appointing a Special Public Prosecutor for effectively conducting the prosecution in the case under consideration.
e) In cases where the Government to appoint a Special Public Prosecutor to conduct the prosecution case, the Advocate so appointed shall be paid the Regulation fee as provided under Rule 32 of the Kerala Government Law officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978.
f) If the Special Public Prosecutor makes a request for the appointment of a junior counsel at the expense of the Government WA.No.261 OF 2020 12 the same will not be entertained when the appointment is made under Section 24(8) Cr. P.C.
4) The Government, if found necessary and in exceptional cases with the concurrence of the State Public Prosecutor may appoint a Special Public Prosecutor in the High Court of Kerala for the purpose of conducting any Appeal/Chennai Revision Petition or other criminal proceedings of the nature referred to in para 3 supra.
5) These instructions are issued in suppression of all existing instructions/orders on this matters and are subject to the provisions in the Cr.P.C, the Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978 and the judicial pronouncement in this regard and shall be scrupulously adhered to.
6) The Home (C) Department and the office of Director General of Prosecution will maintain a complete record of all Special Public Prosecutors engaged which will be reviewed by a Committee consisting of Home Secretary, State Police Chief and Director General of Prosecution every six months.
V. VILASACHANDRAN NAIR Additional Secretary to Government The Director General of Prosecution, Ernakulam The State Police Chief, Thiruvananthapuram The Advocate General, Ernakulam All District Collectors All District Police Chief The Law Department 1&PRD, Web & New media (for uploading in the Government website) SF/OC Forwarded/By Order"
WA.No.261 OF 2020 1310. Clause 3(a) of the Circular states that the appointment of Special Public Prosecutor by the Government under Section 24(8) of the Cr.P.C. shall be made by the Government either suo motu or on the basis of an application submitted by any aggrieved person only when public interest demands it, and not to vindicate the grievances of private persons. However, such appointment shall be made only being satisfied that the case cannot be adequately handled by any of the duly appointed Public Prosecutors, who are receiving salary out of Government funds and on being further satisfied that the case is highly sensational and generates extensive pubic interest of such magnitude as to necessitate the appointment of a more competent Advocate of good standing as a Special Public Prosecutor.
11. Though the learned State Attorney submitted that in Ext.P3 application submitted to the Additional Secretary to the Government, Home (C) Department, Thiruvananthapuram, respondent has made a general statement as to how the prosecution has to be conducted, which we have extracted supra, and therefore, there is no necessity for the Additional Chief Secretary to Government, Home (C) Department, Thiruvananthapuram, respondent No.2, to look into the factors, which are required to be taken note of while arriving at a decision, as to whether a Special Public Prosecutor has to be appointed, we are of the view that having issued the revised guidelines, WA.No.261 OF 2020 14 the State Police Chief, Police Headquarters, Thiruvananthapuram, respondent No.3, has a duty to consider as to whether in the instant case, Crime No.1025/2017 culminated in Session Case No.505/2018 requires appointment of a Special Public Prosecutor, under the circumstances set out in clause 3(a) of the revised guidelines. Section 24(8) of Cr.P.C is reproduced:
"(8) The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor."
12. Reading of Section 24(8) of the Cr.P.C. coupled with the Circular dated 18.09.2017 makes it clear that Government of Kerala, Home (C) Department, Thiruvananthapuram is conferred with the power coupled with a duty to decide as to whether appointment of Special Public Prosecutor is necessary depending upon the facts and circumstances of each case. On the aspect as to how an authority has to decide the issue, where power coupled with duty, would be relevant.
"(I) It is useful to refer as to what LORD CAIRNS said in Julius v. Lord Bishop of Oxford, (1874-80) 5 AC 214 : 1847-80 All England Reporter 43 HL, considered in State (Delhi Admn.) v. I.K. Nangia and Another, [AIR 1979 SC 1977 : (1980) 1 SCC 258], held thus:-
"There may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something, in the conditions under which WA.No.261 OF 2020 15 it is to be done, something in the title of the persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed to exercise that power when called upon to do so."
(ii) Maxwell on Interpretation of Statutes, 11th Edn. at Page 231, referred to in State (Delhi Admn.) v. I.K. Nangia and Another (supra) case is reproduced hereunder:-
"Statutes which authorise persons to do acts For the benefit of others, or, as it is sometimes said, for the public good or the advancement of justice, have often given rise to controversy when conferring the authority in terms simply enabling and not mandatory. In enacting that they "may" or "shall, if they think fit", or, "shall have power", or that "it shall be lawful" for them to do such acts, a statute appears to use the language of mere permission, but it has been so often decided as to have become an axiom that in such cases such expressions may have-to say the least-a compulsory force, and so could seem to be modified by judicial exposition. (Emphasis supplied)"
(iii) In Deewan Singh and others v. Rajendra Pd. Ardevi and others [(2007)10 SCC 528], at paragraph 32, the Hon'ble Supreme Court held as follows:
"32. Even if the expression "shall" is read as "may"
although there does not exist any reason therefor, the statute provides for a power coupled with a duty. It is a well-settled principle of interpretation of statutes that where power is conferred upon a public authority coupled with discretion, the word "may" which denotes discretion, should be construed to mean a command.
WA.No.261 OF 2020 16(iv) In T.N.Godavarman Thirumulpad v. Union of India and others reported in [(2014) 4 SCC 61], at paragraph 8, the Hon'ble Supreme Court held as follows:
"8. It will be clear from the italicised portions of the order of this Court in Lafarge Umiam Mining (P) Ltd. extracted above that this Court on an interpretation of Section 3(3) of the Environment (Protection) Act, 1986 has taken a view that it confers a power coupled with duty to appoint an appropriate authority in the form of a Regulator at the State and at the Central level for appraising projects, enforcing environmental conditions for approvals and to impose penalties on polluters and has, accordingly, directed the Central Government to appoint a National Regulator under the said provision of the Act. Mr Parasaran is, therefore, not right in arguing that in Lafarge Umiam Mining (P) Ltd., this Court has merely suggested that a National Regulator should be appointed and has not issued any mandamus to appoint a National Regulator."
13. Two reasons for rejecting the request for non-appointment of Special Public Prosecutor given in the communication dated 05.10.2019 are;
(1) for conducting the instant case, there is already a Government appointed Advocate; and (2) the respondent is free to seek permission of the Court to assist the prosecution by appointing an Advocate of respondent's choice under section 24(8) of Cr.P.C. A bare reading of the impugned communication dated 05.10.2019 shows that the said authority has not considered the revised guidelines in its letter and spirit.
WA.No.261 OF 2020 1714. Now, let us consider few decisions of the Hon'ble Supreme Court, on discretion and as to how it should be exercised, and judicial review thereof.
"(i) In Suman Gupta and Others v. State of Jammu and Kashmir and Others [AIR 1983 SC 1235:(1983) 4 SCC 339], the Hon'ble Supreme Court while explaining as to how administrative discretion should be exercised, at paragraph No. 6, held as follows:
"The exercise of all administrative power vested in public authority must be structured within a system of controls informed by both relevance and reason -relevance in relation to the object which it seeks to serve, and reason in regard to the manner in which it attempts to do so. Wherever the exercise of such power affects individual rights, there can be no greater assurance protecting is valid exercise than its governance by these twin tests. A stream of case law radiating from the now well known decision in this Court in Maneka Gandhi v. Union of India [(1978) 1 SCC 248] has laid down in clear terms that Article 14 of the Constitution is violated by powers and procedures which in themselves result in unfairness and arbitrariness. It must be remembered that our entire constitutional system is founded in the rule of law, and in any system so designed it is impossible to conceive of legitimate power which is arbitrary in character and travels beyond the bounds of reason.
In the above reported judgment, the Hon'ble Apex Court further held that, "We do not doubt that in the realm of administrative power the element of discretion may properly find place, where the WA.No.261 OF 2020 18 statute or the nature of the power intends so. But there is a well recognised distinction between an administrative power to be exercised within defined limits in the reasonable discretion of designated authority and the vesting of an absolute and uncontrolled power in such authority. One is power controlled by law countenanced by the Constitution, the other falls outside the Constitution altogether."
(ii) Reiterating as to how the discretionary power has to be exercised, the Hon'ble Supreme Court in Sant Raj and Another v. O.P. Singla and Others [AIR 1984 SC 1595 : (1985) 2 SCC 349], held that,-
"Whenever, it is said that something has to be done, within the discretion of the authority, then that something has to be done, according to the rules of reason and justice and not according to private opinion, according to law and not humour. It is to be not arbitrary, vague and fanciful but legal and regular and it must be exercised within the limit to which an honest man to the discharge of his office ought to find himself. Discretion means sound discretion guided by law. It must be governed by rule, not by humour, it must not be arbitrary, vague and fanciful.
(iii) In Fasih Chaudhary v. Director General, Doordarshan and Others [AIR 1989 SC 157 and (1989) 1 SCC 89], the Hon'ble Supreme Court held that exercise of discretion should be legitimate, fair and without any aversion, malice or affection. Nothing should be done which may give the impression of favouritism or nepotism. While fair play in action in such matters is an essential requirement, "free play in the joints" is also a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere as the present one.WA.No.261 OF 2020 19
(iv) In Bangalore Medical Trust v. B.S. Muddappa and Others [AIR 1991 SCC 1902 : (1991) 4 SCC 54], the Hon'ble Supreme held that,-
"Discretion is an effective tool in administration. It provides an option to the authority concerned to adopt one or the other alternative. But a better, proper and legal exercise of discretion is one where the authority examines the fact, is aware of law and then decides objectively and rationally what serves the interest better. When a statute either provides guidance or rules or regulations are framed for exercise of discretion then the action should be in accordance with it. Even where statutes are silent and only power is conferred to act in one or the other manner, the Authority cannot act whimsically or arbitrarily. It should be guided by reasonableness and fairness. The legislature never intends its authority to abuse the law or use it unfairly. Where the law requires an authority to act or decide, 'if it appears to it necessary' or if he is 'of opinion that a particular act should be done' then it is implicit that it should be done objectively, fairly and reasonably. In a democratic set up the people or community being sovereign the exercise of discretion must be guided by the inherent philosophy that the exerciser of discretion is accountable for his action. It is to be tested on anvil of rule of law and fairness or justice particularly if competing interests of members of society is involved. Decisions affecting public interest or the necessity of doing it in the light of guidance provided by the Act and rules may not require intimation to person affected yet the exercise of discretion is vitiated if the action is bereft of rationality, lacks objective and purposive approach. Public interest or general good or social betterment have no doubt priority over private or individual interest but it must not be a WA.No.261 OF 2020 20 pretext to justify the arbitrary or illegal exercise of power. It must withstand scrutiny of the legislative standard provided by the statute itself. The authority exercising discretion must not appear to be impervious to legislative directions. The action or decision must not only be reached reasonably and intelligibly but it must be related to the purpose for which power is exercised. No one howsoever high can arrogate to himself or assume without any authorisation express or implied in law a discretion to ignore the rules and deviate from rationality by adopting a strained or distorted interpretation as it renders the action ultra virus and bad in law.
(v) In Shiv Sagar Tiwari v. Union of India and Others [AIR 1997 SC 1483 : (1997) 1 SCC 444], the Hon'ble Supreme Court held that the discretionary power has to be exercised to advance the performance, to sub-serve for which the power exists.
(vi) In Rakesh Kumar v. Sunil Kumar [AIR 1999 SC 935 : (1999) 2 SCC 489], the Hon'ble Supreme Court has held that administrative action/quasi-judicial function is the duty of the authority to give reasons/record reasons/and it should be a speaking order.
(vii) In A.P. Aggarwal v. Govt. of NCT of Delhi [AIR 2000 SC 205:
(2000) 1 SCC 600], the Hon'ble Supreme Court held as under:
"The conferment of power together with a discretion which goes with it to enable proper exercise of the power and therefore it is coupled with a duty to shun arbitrariness in its exercise and to promote the object for which the power is conferred which undoubtedly is public interest and not individual or private gain, whim or caprice of any individual."WA.No.261 OF 2020 21
(viii) In State of NCT of Delhi v. Sanjeev, [AIR 2005 SC 2080 : (2005) 5 SCC 181], the Hon'ble Supreme Court explaining the scope of judicial review of executive action has held as follows:
"15. One of the points that falls for determination is the scope for judicial interference in matters of administrative decisions. Administrative action is stated to be referable to broad area of governmental activities in which the repositories of power may exercise every class of statutory function of executive, quasi- legislative and quasi-judicial nature. It is trite law that exercise of power, whether legislative or administrative, will be set aside, if there is manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary (see State of U.P. v. Renusagar Power Co.). At one time, the traditional view in England was that the executive was not answerable where its action was attributable to the exercise of prerogative power. Professor de Smith in his classical work Judicial Review of Administrative Action, 4th Edn. at pp. 285-87 states the legal position in his own terse language that the relevant principles formulated by the courts may be broadly summarised as follows:
The authority in which discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it; it must not act under the dictates of another body or disable itself from exercising discretion in each individual case. In the purported exercise of its discretion, it must not do what it has been forbidden to do, nor must it do what it has not been authorised to do. It must act in good faith, must have regard to all WA.No.261 OF 2020 22 relevant considerations and must not be influenced by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously. These several principles can conveniently be grouped in two main categories: (i) failure to exercise a discretion, and (ii) excess or abuse of discretionary power. The two classes are not, however, mutually exclusive. Thus, discretion may be improperly fettered because irrelevant considerations have been taken into account, and where an authority hands over its discretion to another body it acts ultra vires.
(ix) In Indian Railway Construction Co. Ltd. v. Ajay Kumar [AIR 2003 SC 1843 : (2003) 4 SCC 579], at paragraphs No. 13 to 15, the Hon'ble Supreme Court explained the manner in which discretionary power has to be exercised, while discharging an administrative function. In the above judgment, the Supreme Court held that in matters relating to administrative functions, if a decision is tainted by any vulnerability as such illegality, irrationality and procedural impropriety, Courts should not hesitate to interfere, if the action falls within any of the categories stated supra.
"14. The present trend of judicial opinion is to restrict the doctrine of immunity from judicial review to those class of cases which relate to deployment of troops, entering into international treaties etc. The distinctive features of some of these recent cases signify the willingness of the courts to assert their power to scrutinize the factual basis upon which discretionary powers have been exercised. One can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review.WA.No.261 OF 2020 23
The first ground is "illegality", the second "irrationality", and the third "procedural impropriety". These principles were highlighted by Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service (commonly known as CCSU case). If the power has been exercised on a non-consideration or non- application of mind to relevant factors, the exercise of power will be regarded as manifestly erroneous. If a power (whether legislative or administrative) is exercised on the basis of facts which do not exist and which are patently erroneous, such exercise of power will stand vitiated. (See CIT v. Mahindra and Mahindra Ltd.)
(x) LORD GREENE in Associated Provincial Picture Houses Ltd. v.
Wednesbury Corpn. (KB at p. 229 : All ER pp. 682 H-683 A), held as follows:
"It is true that discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology 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 even dream that it lay within the powers of the authority.... In another, it is taking into consideration WA.No.261 OF 2020 24 extraneous matters. It is unreasonable that it might almost be described as being done in bad faith; and in fact, all these things run into one another."
Lord Greene also observed thus: (KB p. 230 : All ER p. 683 F-G) "... it must be proved to be unreasonable in the sense that the court considers it to be a decision that no reasonable body can come to. It is not what the court considers unreasonable.... The effect of the legislation is not to set up the court as an arbiter of the correctness of one view over another." (Emphasis supplied)
18. Therefore, to arrive at a decision on "reasonableness" the court has to find out if the administrator has left out relevant factors or taken into account irrelevant factors. The decision of the administrator must have been within the four corners of the law, and not one which no sensible person could have reasonably arrived at, having regard to the above principles, and must have been a bona fide one. The decision could be one of many choices open to the authority but it was for that authority to decide upon the choice and not for the court to substitute its view."
(xi) In Union of India v. Kuldeep Singh [AIR 2004 SC 827:(2004) 2 SCC 590], the Hon'ble Supreme Court while testing the correctness of the judgment rendered under the Narcotic Drugs and Psychotropic Substances Act, 1985, and the discretion to be exercised by the High Court, explained the principles governing the mode of exercise of the discretionary power for public functionaries as follows:
"20. When anything is left to any person, judge or Magistrate to be done according to his discretion, the law intends it must WA.No.261 OF 2020 25 be done with sound discretion, and according to law. In its ordinary meaning, the word "discretion" signifies unrestrained exercise of choice or will; freedom to act according to one's own judgment; unrestrained exercise of will; the liberty or power of acting without control other than one's own judgment. But, when applied to public functionaries, it means a power or right conferred upon them by law, of acting officially in certain circumstances according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. Discretion is to discern between right and wrong; and therefore, whoever hath power to act at discretion, is bound by the rule of reason and law.
21. Discretion, in general, is the discernment of what is right and proper. It denotes knowledge and prudence, that discernment which enables a person to judge critically of what is correct and proper united with caution; nice discernment, and judgment directed by circumspection; deliberate judgment; soundness of judgment; a science or understanding to discern between falsity and truth, between wrong and right, between shadow and substance, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.
22. The word "discretion" standing single and unsupported by circumstances signifies exercise of judgment, skill or wisdom as distinguished from folly, unthinking or haste; evidently therefore a discretion cannot be arbitrary but must be a result of judicial thinking. The word in itself implies vigilant circumspection and care; therefore, where the legislature concedes discretion it also imposes a heavy responsibility.WA.No.261 OF 2020 26
"The discretion of a judge is the law of tyrants; it is always unknown. It is different in different men. It is casual, and depends upon constitution, temper and passion. In the best it is often times caprice; in the worst it is every vice, folly, and passion to which human nature is liable," said Lord Camden, L.C.J., in Hindson and Kersey (1680) 8 HOW St Tr. 57.
23. If a certain latitude or liberty is accorded by a statute or rules to a judge as distinguished from a ministerial or administrative official, in adjudicating on matters brought before him, it is judicial discretion. It limits and regulates the exercise of discretion, and prevents it from being wholly absolute, capricious, or exempt from review."
40. The power conferred on the authority without any guidelines may likely to be abused or arbitrarily exercised and in such circumstances, the guidance and control of exercise of such power has to be gathered from the object of conferment of power. Non-consideration or non-application of mind to relevant factors renders the exercise of discretion manifestly erroneous, and it is cause for judicial interference."
15. In the backdrop of the revised guidelines, and in the light of the decisions as to how discretion has to be exercised invoking the power coupled with duty, we are of the view that the order passed by the Additional Chief Secretary to Government, Home (C) Department, Thiruvananthapuram does not satisfy the test of reasonableness, and therefore, judicial review is required. On the aspect of judicial review, let us consider a few decisions.
WA.No.261 OF 2020 27(i) In Council of Civil Service Unions v. Minister for the Civil Service, reported in (1984) 3 All ER 935, Lord Diplock enunciated three grounds upon which an administrative action is subject to control by judicial review, viz. (i) illegality (ii) irrationality and (iii) procedural impropriety, as follows:
"By "illegality" he means that the decision-maker must understand correctly the law that regulates his decision- making power and must give effect to it, and whether he has or has not, is a justiciable question; by "irrationality" he means "Wednesbury unreasonableness". It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided, could have arrived at it; and by "procedural impropriety" he means not only failure to observe the basic rules of natural justice or failure to act with procedural fairness, but also failure to observe procedural rules that are expressly laid down in the legislative instrument by which the tribunal's jurisdiction is conferred, even where such failure does not involve any denial of natural justice."
(ii) The principle of "Wednesbury unreasonableness" or irrationality, classified by Lord Diplock as one of the grounds for intervention in judicial review, was lucidly summarised by Lord Greene M.R. in Associated Provincial Picture Houses Ltd. Vs. Wednesbury Corpn., reported in (1948) 1 KB 223 = (1947) 2 All ER 680, which is as follows:
"...the court is entitled to investigate the action of the local authority with a view of seeing whether it has taken into account matters which it ought not to take into account, or conversely, has refused to take into account or neglected to take into account matters which it ought to take into account. Once that question is answered in favour of the local authority, it may still be possible to say that the local authority, nevertheless, have come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere."
(iii) In State of U.P. & Anr. Vs. Johri Mal, reported in (2004) 4 SCC 714, the Hon'ble Supreme Court observed thus:
WA.No.261 OF 2020 28"The scope and extent of power of the judicial review of the High Court contained in Article 226 of the Constitution of India would vary from case to case, the nature of the order, the relevant statute as also the other relevant factors including the nature of power exercised by the public authorities, namely, whether the power is statutory, quasi-judicial or administrative. The power of judicial review is not intended to assume a supervisory role or don the robes of the omnipresent. The power is not intended either to review governance under the rule of law or do the courts step into the areas exclusively reserved by the suprema lex to the other organs of the State. Decisions and actions which do not have adjudicative disposition may not strictly fall for consideration before a judicial review court."
(iv) In Rameshwar Prasad & Ors. (VI) v. Union of India & Anr., reported in (2006) 2 SCC 1, the Hon'ble Apex Court observed thus:
"A person entrusted with discretion must, so to speak, direct himself properly in law. He must call 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.
It is an unwritten rule of law, constitutional and administrative, that whenever a decision-making function is entrusted to be subjective satisfaction of a statutory functionary, there is an implicit obligation to apply his mind to pertinent and proximate matters only, eschewing the irrelevant and the remote."
(v) In Jayrajbhai Jayantibhai Patel v. Anilbhai Jayanitbhai Patel and Ors., reported in (2006) 8 SCC 200, the Hon'ble Supreme Court in para 18 observed as under:-
"18. Having regard to it all, it is manifest that the power of judicial review may not be exercised unless the administrative decision is illogical or suffers from procedural impropriety or it shocks the conscience of the court in the sense that it is in defiance WA.No.261 OF 2020 29 of logic or moral standards but no standardised formula, universally applicable to all cases, can be evolved. Each case has to be considered on its own facts, depending upon the authority that exercises the power, the source, the nature or scope of power and the indelible effects it generates in the operation of law or affects the individual or society. Though judicial restraint, albeit self- recognised, is the order of the day, yet an administrative decision or action which is based on wholly irrelevant considerations or material; or excludes from consideration the relevant material; or it is so absurd that no reasonable person could have arrived at it on the given material, may be struck down. In other words, when a Court is satisfied that there is an abuse or misuse of power, and its jurisdiction is invoked, it is incumbent on the Court to intervene. It is nevertheless, trite that the scope of judicial review is limited to the deficiency in the decision- making process and not the decision."
The following passage from Professor Bernard Schwartz's book Administrative Law (Third Edition) aptly echo's our thoughts on the scope of judicial review:
"Reviewing courts, the cases are now insisting, may not simply renounce their responsibility by mumbling an indiscriminate litany of deference to expertise. Due deference to the agency does not mean abdication of the duty of judicial review and rubber- stamping of agency action: We must accord the agency considerable, but not too much deference; it is entitled to exercise its discretion, but only so far and no further."
Quoting Judge Leventhal from Greater Boston Television Corp. v. FCC, 444 F. 2d 841 (D.C.Cir. 1970), he further says:
"...the reviewing court must intervene if it "becomes aware...that the agency has not really taken a 'hard look' at the salient problems, and has not genuinely engaged in reasoned decision-making..."
(vi) In Ganesh Bank of Kurundwad Ltd. and others v. Union of India and others, reported in (2006) 10 SCC 645, the Hon'ble Supreme Court in paragraphs 50 and 51 observed as under:-
WA.No.261 OF 2020 30"50. There should be judicial restraint while making judicial review in administrative matters. Where irrelevant aspects have been eschewed from consideration and no relevant aspect has been ignored and the administrative decisions have nexus with the facts on record, there is no scope for interference. The duty of the court is
(a) to confine itself to the question of legality; (b) to decide whether the decision making authority exceeded its powers (c) committed an error of law (d) committed breach of the rules of natural justice and
(e) reached a decision which no reasonable Tribunal would have reached or (f) abused its powers. Administrative action is subject to control by judicial review in the following manner:
(i) Illegality.- This means the decision-maker must understand correctly the law that regulates his decision- making power and must give effect to it.
(ii) Irrationality, namely, Wednesbury unreasonableness.
(iii) Procedural impropriety.
........Professor De Smith in his classical work "Judicial Review of Administrative Action" 4th Edition at pages 285-287 states the legal position in his own terse language that the relevant principles formulated by the Courts may be broadly summarized as follows. The authority in which discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it; it must not act under the dictates of another body or disable itself from exercising discretion in each individual case. In the purported exercise of its discretion, it must not do what it has been forbidden to do, nor must it do what it has not been authorized to do. It must act in good faith, must have regard to all relevant considerations and must not be influenced by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously. These several principles can conveniently be grouped in two main categories:
(i) failure to exercise a discretion, and (ii) excess or abuse of WA.No.261 OF 2020 31 discretionary power. The two classes are not, however, mutually exclusive. Thus, discretion may be improperly fettered because irrelevant considerations have been taken into account, and where an authority hands over its discretion to another body it acts ultra vires.
The court will be slow to interfere in such matters relating to administrative functions unless decision is tainted by any vulnerability enumerated above; like illegality, irrationality and procedural impropriety."
(vii) In Bank of India v. T.Jogram reported in (2007) 7 SCC 236, the Hon'ble Supreme Court has held that it is well settled principle of law that Judicial review is not against the decision, but is against the decision making process.
(viii) In State of Maharashtra v. Prakash Prahland Patil reported in (2009) 12 SCC 159, the Hon'ble Apex Court, at Paragraphs 5 and 6, held as follows:
"5. The scope for judicial review has been examined by this court in several cases. It has been consistently held that the power of judicial review is not intended to assume a supervisory role or don the robes of omnipresent. The power is not intended either to review governance under the rule of law nor do the courts step into the areas exclusively reserved by the supreme lex to other organs of the State. A mere wrong decision, without anything more, in most of the cases will not be sufficient to attract the power of judicial review. The supervisory jurisdiction conferred upon a court is limited to see that the authority concerned functions within its limits of its authority and that its decisions do not occasion miscarriage of justice.
6. The courts cannot be called upon to undertake governmental duties and functions. Courts should not ordinarily interfere with a policy decision of the State. While exercising power of judicial review the court is more concerned with the decision making process than the merit of the decision itself."
(ix) In All India Railway Recruitment Board v. K.Shyam Kumar reported in (2010) 6 SCC 614, the Hon'ble Supreme Court, held as follows:
WA.No.261 OF 2020 32"22. Judicial review conventionally is concerned with the question of jurisdiction and natural justice and the Court is not much concerned with the merits of the decision but how the decision was reached. In Council of Civil Service Unions v. Minister of State for Civil Service (1984) 3 All ER 935 the (GCHQ Case) the House of Lords rationalized the grounds of judicial review and ruled that the basis of judicial review could be highlighted under three principal heads, namely, illegality, procedural impropriety and irrationality. Illegality as a ground of judicial review means that the decision maker must understand correctly the law that regulates his decision making powers and must give effect to it. Grounds such as acting ultra vires, errors of law and/or fact, onerous conditions, improper purpose, relevant and irrelevant factors, acting in bad faith, fettering discretion, unauthorized delegation, failure to act etc., fall under the heading "illegality". Procedural impropriety may be due to the failure to comply with the mandatory procedures such as breach of natural justice, such as audi alteram partem, absence of bias, the duty to act fairly, legitimate expectations, failure to give reasons etc.
23. Ground of irrationality takes in Wednesbury unreasonableness propounded in Associated Provincial Picture Houses Limited v. Wednesbury Corporation (1947)2 All ER 680, Lord Greene MR alluded to the grounds of attack which could be made against the decision, citing unreasonableness as an `umbrella concept' which covers the major heads of review and pointed out that the court can interfere with a decision if it is so absurd that no reasonable decision maker would in law come to it. In GCHQ Case (supra) Lord Diplock fashioned the principle of unreasonableness and preferred to use the term irrationality as follows:
"By `irrationality' I mean what can now be succinctly referred to as "Wednesbury's unreasonableness", ....... It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it."
24. In R. v. Secretary of State for the Home Department ex parte Brind (1991) 1 All ER 720, the House of Lords re-examined the reasonableness of the exercise of the Home Secretary's discretion to WA.No.261 OF 2020 33 issue a notice banning the transmission of speech by representatives of the Irish Republican Army and its political party, Sinn Fein. Court ruled that the exercise of the Home Secretary's power did not amount to an unreasonable exercise of discretion despite the issue involving a denial of freedom of expression. House of Lords however, stressed that in all cases raising a human rights issue proportionality is the appropriate standard of review.
25. The House of Lords in R (Daly) v. Secretary of State for the Home Department (2001) 2 AC 532 demonstrated how the traditional test of Wednesbury unreasonableness has moved towards the doctrine of necessity and proportionality. Lord Steyn noted that the criteria of proportionality are more precise and more sophisticated than traditional grounds of review and went on to outline three concrete differences between the two:-
(1) Proportionality may require the reviewing Court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions.
(2) Proportionality test may go further than the traditional grounds of review in as much as it may require attention to be directed to the relative weight accorded to interests and considerations.
(3) Even the heightened scrutiny test is not necessarily appropriate to the protection of human rights.
Lord Steyn also felt most cases would be decided in the same way whatever approach is adopted, though conceded for human right cases proportionality is the appropriate test.
26. The question arose as to whether doctrine of proportionality applies only where fundamental human rights are in issue or whether it will come to provide all aspects of judicial review. Lord Steyn in R. (Alconbury Development Limited) v. Secretary of State for the Environment, Transport and the Regions (2001) 2 All ER 929 stated as follows:-
WA.No.261 OF 2020 34"I consider that even without reference to the Human Rights Act, 1998 the time has come to recognize that this principle (proportionality) is part of English administrative law not only when Judges are dealing with Community acts but also when they are dealing with acts subject to domestic law. Trying to keep the Wednesbury principle and proportionality in separate compartments seems to me to be unnecessary and confusing".
Lord Steyn was of the opinion that the difference between both the principles was in practice much less than it was sometimes suggested and whatever principle was applied the result in the case was the same.
27. Whether the proportionality will ultimately supersede the concept of reasonableness or rationality was also considered by Dyson Lord Justice in R. (Association of British Civilian Internees: Far East Region) v Secretary of State for Defence [2003] QB 1397 and stated as follows:-
"We have difficulty in seeing what justification there now is for retaining Wednesbury test ..... but we consider that it is not for this Court to perform burial rights. The continuing existence of the Wednesbury test has been acknowledged by House of Lords on more than one occasion. A survey of the various judgments of House of Lords, Court of Appeals, etc. would reveal for the time being both the tests continued to co-exist."
28. Position in English Administrative Law is that both the tests that is. Wednesbury and proportionality continue to co-exist and the proportionality test is more and more applied, when there is violation of human rights, and fundamental freedom and the Wednesbury finds its presence more on the domestic law when there is violations of citizens ordinary rights. Proportionality principle has not so far replaced the Wednesbury principle and the time has not reached to say good bye to Wednesbury much less its burial.
29. In Huang case (2007) 4 All ER 15 (HL), the House of Lords was concerned with the question whether denial of asylum infringes Article 8 (Right to Respect Family Life) of the Human Rights Act, 1998. House of Lords ruled that it was the duty of the WA.No.261 OF 2020 35 authorities when faced with individuals who did not qualify under the rules to consider whether the refusal of asylum status was unlawful on the ground that it violated the individual's right to family life. A structured proportionality test has emerged from that decision in the context of the violation of human rights. In R (Daly) (supra) the House of Lords considered both common law and Article 8 of the convention and ruled that the policy of excluding prisoners from their cells while prison officers conducted searches, which included scrutinizing privileged legal correspondence was unlawful.
30. Both the above-mentioned cases, mainly concerned with the violation of human rights under the Human Rights Act, 1998 but demonstrated the movement away from the traditional test of Wednesbury unreasonableness towards the test of proportionality. But it is not safe to conclude that the principle of Wednesbury unreasonableness has been replaced by the doctrine of proportionality.
31. Justice S.B. Sinha, as His Lordship then was, speaking for the Bench in State of U.P., v. Sheo Shanker Lal Srivastava and Ors. (2006) 3 SCC 276 after referring to the judgment of the Court of appeal in Huang v. Secretary of State for the Home Department (2005) 3 All ER 435, R. v. Secretary of State of the Home Department, ex parte Daly (2001) 3 All ER 433 (HL) opined that Wednesbury principle may not now be held to be applicable in view of the development in constitutional law and held as follows:-
"24. While saying so, we are not oblivious of the fact that the doctrine of unreasonableness is giving way to the doctrine of proportionality.
25. It is interesting to note that the Wednesbury principles may not now be held to be applicable in view of the development in constitutional law in this behalf. See, for example, Huang v. Secy. of State for the Home Deptt. wherein referring to R. v. Secretary of State of the Home Department, ex parte Daly, it was held that in certain cases, the adjudicator may require to conduct a judicial exercise which is not merely more intrusive than Wednesbury, but involves a full-blown merit judgment, which is yet more than ex p.WA.No.261 OF 2020 36
Daly, requires on a judicial review where the court has to decide a proportionality issue."
32. Sheo Shanker Lal Srivastava case was later followed in Indian Airlines Ltd., v. Prabha D.Kanan (2006) 11 SCC 67. Following the above mentioned two judgments in Jitendra Kumar and Others v. State of Haryana and Another (2008) 2 SCC 161, the Bench has referred to a passage in HWR Wade and CF Forsyth on Administrative Law, 9th Edition. (2004), pages 371- 372 with the caption "Goodbye to Wednesbury" and quoted from the book which reads as follows:-
"The Wednesbury doctrine is now in terminal decline but the coup de grace has not yet fallen, despite calls for it from very high authorities" and opined that in some jurisdictions the doctrine of unreasonableness is giving way to doctrine of proportionality."
33. Indian Airlines Ltd.'s case and Sheo Shanker Lal Srivastava's case (supra) were again followed in State of Madhya Pradesh and Others v. Hazarilal, (2008) 3 SCC 273 and the Bench opined as follows:-
"Furthermore the legal parameters of judicial review have undergone a change. Wednesbury principle of unreasonableness has been replaced by the doctrine of proportionality.".
34. With due respect, we are unable to subscribe to that view, which is an overstatement of the English Administrative Law.
35. Wednesbury principle of unreasonableness as such has not been replaced by the doctrine of proportionality though that test is being applied more and more when violation of human rights is alleged. H.W.R. Wade & C.F. Forsyth in the 10th Edition of Administrative Law (2009), has omitted the passage quoted by this court in Jitender Kumar case and stated as follows:
"Notwithstanding the apparent persuasiveness of these views the coup de grace has not yet fallen on Wednesbury unreasonableness. Where a matter falls outside the ambit of 1998 Act, the doctrine is regularly relied upon by the courts. Reports of its imminent demise are perhaps exaggerated." (emphasis applied).WA.No.261 OF 2020 37
36. Wednesbury and Proportionality - Wednesbury applies to a decision which is so reprehensible in its defiance of logic or of accepted moral or ethical standards that no sensible person who had applied his mind to the issue to be decided could have arrived at it. Proportionality as a legal test is capable of being more precise and fastidious than a reasonableness test as well as requiring a more intrusive review of a decision made by a public authority which requires the courts to `assess the balance or equation' struck by the decision maker. Proportionality test in some jurisdictions is also described as the "least injurious means" or "minimal impairment"
test so as to safeguard fundamental rights of citizens and to ensure a fair balance between individual rights and public interest. Suffice to say that there has been an overlapping of all these tests in its content and structure, it is difficult to compartmentalize or lay down a straight jacket formula and to say that Wednesbury has met with its death knell is too tall a statement. Let us, however, recognize the fact that the current trend seems to favour proportionality test but Wednesbury has not met with its judicial burial and a state burial, with full honours is surely not to happen in the near future.
37. Proportionality, requires the Court to judge whether action taken was really needed as well as whether it was within the range of courses of action which could reasonably be followed. Proportionality is more concerned with the aims and intention of the decision-maker and whether the decision- maker has achieved more or less the correct balance or equilibrium. Courts entrusted with the task of judicial review has to examine whether decision taken by the authority is proportionate, i.e. well balanced and harmonious, to this extent court may indulge in a merit review and if the court finds that the decision is proportionate, it seldom interferes with the decision taken and if it finds that the decision is disproportionate i.e. if the court feels that it is not well balanced or harmonious and does not stand to reason it may tend to interfere.
38. Leyland and Anthony on Textbook on Administrative Law (5th edn. OUP, 2005) at p.331 has amply put as follows:
"Proportionality works on the assumption that administrative action ought not to go beyond what is necessary to achieve its WA.No.261 OF 2020 38 desired results (in every day terms, that you should not use a sledgehammer to crack a nut) and in contrast to irrationality is often understood to bring the courts much closer to reviewing the merits of a decision".
39. Courts have to develop an indefeasible and principled approach to proportionality till that is done there will always be an overlapping between the traditional grounds of review and the principle of proportionality and the cases would continue to be decided in the same manner whichever principle is adopted. Proportionality as the word indicates has reference to variables or comparison, it enables the Court to apply the principle with various degrees of intensity and offers a potentially deeper inquiry into the reasons, projected by the decision maker."
(x) In Union of India v. Rajasthan High Court reported in (2017) 2 SCC 599, the Hon'ble Supreme Court, at Paragraph 13, while discussing the scope of judicial review, held as follows:
"13. ........The powers under Article 226 are wide - wide enough to reach out to injustice wherever it may originate. These powers have been construed liberally and have been applied expansively where human rights have been violated. But, the notion of injustice is relatable to justice under the law. Justice should not be made to depend upon the individual perception of a decision maker on where a balance or solution should lie. Judges are expected to apply standards which are objective and well defined by law and founded upon constitutional principle. When they do so, judges walk the path on a road well-travelled. When judicial creativity leads judges to roads less travelled, in search of justice, they have yet to remain firmly rooted in law and the Constitution. The distinction between what lies within and what lies outside the power of judicial review is necessary to preserve the sanctity of judicial power. Judicial power is respected and adhered to in a system based on the rule of law precisely for its nuanced and restrained exercise. If these restraints are not maintained the court as an institution would invite a justifiable criticism of encroaching upon a terrain on which it singularly lacks expertise and which is WA.No.261 OF 2020 39 entrusted for governance to the legislative and executive arms of government. Judgments are enforced, above all, because of the belief which society and arms of governance of a democratic society hold in the sanctity of the judicial process. This sanctity is based on institutional prestige. Institutional authority is established over long years, by a steadfast commitment to a calibrated exercise of judicial power. Fear of consequences is one reason why citizens obey the law as well as judicial decisions. But there are far stronger reasons why they do so and the foundation for that must be carefully preserved. That is the rationale for the principle that judicial review is confined to cases where there is a breach of law or of the Constitution."
(xi) In Royal Medical Trust v. Union of India reported in (2017) 16 SCC 605, the Hon'ble Supreme Court, on the scope of judicial review, held as follows:
"The principle of judicial review by the constitutional courts have been lucidly stated in many an authority of this Court. In Tata Cellular v. Union of India (1994) 6 SCC 651, dealing with the concept of Judicial Review, the Court held:-
"Lord Scarman in Nottinghamshire County Council v. Secretary of State for the Environment proclaimed:
'Judicial review' is a great weapon in the hands of the judges; but the judges must observe the constitutional limits set by our parliamentary system upon the exercise of this beneficial power."
Commenting upon this Michael Supperstone and James Goudie in their work Judicial Review (1992 Edn.) at p. 16 say:
"If anyone were prompted to dismiss this sage warning as a mere obiter dictum from the most radical member of the higher judiciary of recent times, and therefore to be treated as an idiosyncratic aberration, it has received the endorsement of the Law Lords generally. The words of Lord Scarman were echoed by Lord Bridge of Harwich, speaking on behalf of the Board when reversing an interventionist decision of the New Zealand Court of Appeal in Butcher v. Petrocorp Exploration Ltd. 18-3-1991." Observance of judicial restraint is currently the mood in England. The judicial power WA.No.261 OF 2020 40 of review is exercised to rein in any unbridled executive functioning. The restraint has two contemporary manifestations. One is the ambit of judicial intervention; the other covers the scope of the court's ability to quash an administrative decision on its merits. These restraints bear the hallmarks of judicial control over administrative action.
Judicial review is concerned with reviewing not the merits of the decision in support of which the application for judicial review is made, but the decision-making process itself."
After so stating, reference was made to the law enunciated in Chief Constable of the North Wales Police v. Evans (1982) 3 All ER 141 wherein, it has been ruled:-
"Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made.
* * * Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power."
45. In the said case, the Court also referred to R. v. Panel on Take-overs and Mergers, ex. P. Datafin plc (1987) 1 All ER 564 wherein Sir John Donaldson, M.R. Commented:-
"An application for judicial review is not an appeal."
46. The three Judge Bench further held:-
"The duty of the court is to confine itself to the question of legality. Its concern should be:
1. Whether a decision-making authority exceeded its powers?
2. Committed an error of law,
3. Committed a breach of the rules of natural justice,
4. Reached a decision which no reasonable tribunal would have reached or,
5. abused its powers."WA.No.261 OF 2020 41
47. The Court further opined that in the process of judicial review, it is only concerned with the manner in which the decisions have been taken. The extent of the duty is to act fairly. It will vary from case to case. Explicating further, it ruled:-
"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 give effect to it.
(ii) Irrationality, namely, Wednesbury unreasonableness.
(iii) Procedural impropriety.
The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact, in R. v. Secretary of State for the Home Department, ex Brind, Lord Diplock refers specifically to one development, namely, the possible recognition of the principle of proportionality. In all these cases the test to be adopted is that the court should, "consider whether something has gone wrong of a nature and degree which requires its intervention".
48. Thereafter, the Court referred to the authorities in R. v. Askew 20 and Council of Civil Service Unions v. Minister for Civil Service 21 and further expressed:-
"At this stage, The Supreme Court Practice, 1993, Vol. 1, pp. 849-850, may be quoted:
"4. Wednesbury principle.-- A decision of a public authority will be liable to be quashed or otherwise dealt with by an appropriate order in judicial review proceedings where the court concludes that the decision is such that no authority properly directing itself on the relevant law and acting reasonably could have reached it. (Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., per Lord Greene, M.R.)" We may hasten to add, though the decision was rendered in the context of justification of grant of contract but the principles set out as regards the judicial review are of extreme significance.WA.No.261 OF 2020 42
49. Discussing at length, the principle of judicial review in many a decision, the two Judge Bench in Reliance Telecom Ltd. & Another v. Union of India & Another, has held:-
20 (1768) 4 Burr 2186 : 98 ER 139 21 (1985) 1 AC 374 :
(1984) 3 All ER 935 : (1984) 3 WLR 1174 22 (2017) 4 SCC 269 "As we find, the decision taken by the Central Government is based upon certain norms and parameters. Though criticism has been advanced that it is perverse and irrational, yet we are disposed to think that it is a policy decision which sub-serves the consumers' interest. It is extremely difficult to say that the decision to conduct the auction in such a manner can be considered to be malafide or based on extraneous considerations."
50. Thus analysed, it is envicible that the exercise of power of judicial review and the extent to which it has to be done will vary from case to case. It is necessary to state with emphasis that it has its own complexity and would depend upon the factual projection. The broad principles have been laid down in Tata Cellular (supra) and other decisions make it absolutely clear that judicial review, by no stretch of imagination, can be equated with the power of appeal, for while exercising the power under Article 226 or 32 of the Constitution, the constitutional courts do not exercise such power. The process of adjudication on merit by re-appreciation of the materials brought on record which is the duty of the appellate court is not permissible.
51. The duty of the Court in exercise of the power of judicial review to zealously guard the human rights, fundamental rights and the citizens' right of life and liberty as also many non-statutory powers of governmental bodies as regards their control over property and assets of various kinds. (See : Union of India and Anr. v S.B. Vohra23)"
In the light of the above discussion and decisions, we are inclined to interfere with the impugned judgment and set aside the communication dated 05.10.2019, i.e., the order rejecting request of the respondent/writ WA.No.261 OF 2020 43 petitioner for appointment of Special Public Prosecutor. The matter is remitted back to the Additional Chief Secretary to Government, Home(C) Department, Thiruvananthapuram, for fresh consideration, having regard to what is observed above and in the light of the revised guidelines in Circular No.264/C4/2017/Home dated 18.09.2017, within six weeks from the date of receipt of a certified copy of this judgment.
Sd/-
S.MANIKUMAR CHIEF JUSTICE Sd/-
SHAJI P.CHALY
Smv & krj JUDGE