Illegality in Administrative Law

Illegality is one of the principal grounds of judicial review of administrative action. It means that a public authority has acted contrary to law, beyond the powers granted to it, or by incorrectly understanding the legal limits of its authority.

The principle is based on the rule of law: administrative authorities derive their powers from the Constitution, legislation or other lawful sources, and must exercise those powers within the limits prescribed by law.

In the traditional classification of judicial review, illegality is associated with the principle that an administrative authority must correctly understand the law governing its powers and give effect to it.

Meaning of Illegality

Illegality occurs when an administrative authority exercises public power in a manner that is inconsistent with the law.

An administrative decision may be illegal where the authority:

• Acts without jurisdiction.
• Exceeds its statutory powers.
• Misinterprets the law governing its powers.
• Exercises power for an improper purpose.
• Takes irrelevant considerations into account.
• Fails to consider relevant matters required by law.
• Delegates a power improperly.
• Acts under the dictation of another authority.
• Fails to comply with mandatory statutory requirements.

Illegality therefore concerns the legal authority and legal limits of administrative action.

Illegality as a Ground of Judicial Review

Judicial review allows courts to determine whether an administrative authority has acted within the legal framework governing its powers.

The court generally does not ask whether the administrative decision was the most desirable decision.

Instead, it asks whether the authority:

1. Had legal authority to act.
2. Understood the scope of that authority correctly.
3. Exercised the power for a lawful purpose.
4. Complied with mandatory legal requirements.
5. Remained within the limits imposed by the Constitution and statute.

If these requirements are not satisfied, the administrative action may be quashed or otherwise subjected to an appropriate remedy.

Lack of Jurisdiction

An authority cannot exercise a power that the law does not confer upon it.

Where an administrative body has no jurisdiction over a matter but nevertheless acts, its decision may be challenged.

For example, if legislation gives a particular authority power to regulate one category of activity, that authority cannot assume power over an unrelated category merely because it considers regulation desirable.

Lack of jurisdiction is therefore a fundamental form of illegality.

Excess of Jurisdiction

An authority may have jurisdiction to act but exceed the limits of that jurisdiction.

This occurs when the authority goes beyond the scope of the power granted by law.

For example, where legislation permits an authority to impose a penalty within a specified range, imposing a penalty beyond the statutory maximum may constitute an excess of jurisdiction.

Error of Law

An administrative authority must correctly understand the law applicable to its decision.

An error of law may arise where the authority:

• Misinterprets a statutory provision.
• Applies an incorrect legal test.
• Assumes a power that legislation does not grant.
• Misunderstands a statutory limitation.
• Treats an unlawful consideration as legally relevant.

Where the legal error materially affects the exercise of power, the resulting decision may be subject to judicial review.

Improper Purpose

A statutory power must be exercised for the purpose for which the legislature granted it.

An authority cannot lawfully use a power for an unrelated or improper objective.

For example, if a licensing power is granted to regulate public safety, it cannot ordinarily be used primarily to achieve an unrelated punitive objective.

The question is not simply whether the authority possessed the power, but whether it used that power for the legally authorised purpose.

Relevant and Irrelevant Considerations

The law may require an administrative authority to consider particular matters before exercising its discretion.

An authority may act illegally where it:

• Fails to consider a mandatory relevant factor.
• Takes into account an irrelevant matter.
• Treats an irrelevant factor as decisive.
• Misunderstands the factors that the statute requires it to consider.

The court does not ordinarily reweigh all the factors itself. It examines whether the authority exercised its discretion according to the legal framework.

Improper Delegation

Administrative authorities must comply with statutory requirements concerning delegation.

Where legislation entrusts a power to a particular authority and that power is improperly delegated to another person or body, the resulting action may be challenged.

The principle is closely related to delegatus non potest delegare, meaning that a delegate ordinarily cannot further delegate the power entrusted to it unless the law permits such delegation.

Acting Under Dictation

An authority entrusted with statutory discretion must ordinarily exercise that discretion independently.

If the authority merely follows instructions from another person or authority without applying its own judgment, the decision may be invalid.

For example, if a licensing authority is legally required to decide whether a licence should be cancelled but cancels it solely because another authority instructed it to do so, the decision may be vulnerable to judicial review.

The principle ensures that the legally designated decision-maker actually makes the decision.

Failure to Exercise Statutory Discretion

Illegality may also arise where an authority fails to exercise a discretion that the law has entrusted to it.

This can occur where the authority:

• Believes that it has no discretion when it actually has one.
• Refuses to consider an application.
• Automatically follows a rigid policy.
• Treats another authority’s decision as binding when the law requires its own judgment.

A public authority cannot avoid exercising a statutory discretion by simply refusing to consider the circumstances that the law requires it to assess.

Fettering of Discretion

An authority may adopt policies or guidelines to promote consistency.

However, it cannot ordinarily treat a policy as an inflexible rule if the legislation requires it to consider individual circumstances.

If an authority refuses to consider whether an exception should be made because it has completely surrendered its discretion to a rigid policy, its action may be challenged.

This is another form of unlawful exercise of administrative discretion.

Violation of Mandatory Statutory Procedure

Administrative authorities must comply with mandatory procedural requirements imposed by legislation.

Failure to comply with such requirements may make the resulting decision unlawful.

Whether a procedural requirement is mandatory or directory depends upon the wording, purpose and structure of the legislation and the consequences of non-compliance.

Illegality and Natural Justice

Illegality and natural justice are distinct but may overlap.

An administrative authority may act illegally where the governing law requires procedural fairness and the authority fails to provide it.

Important procedural requirements may include:

• Adequate notice.
• Opportunity to be heard.
• Impartial decision-making.
• Disclosure of relevant material where required.
• Consideration of the affected person’s response.

The precise requirements depend upon the nature of the power, statutory framework and circumstances.

Illegality and Constitutional Limitations

Administrative authorities are subject not only to ordinary legislation but also to the Constitution.

An administrative decision may therefore be challenged where it violates constitutional provisions, including applicable fundamental rights.

Article 14 is particularly important because administrative action must not be arbitrary or discriminatory in a constitutionally impermissible manner.

Illegality and Delegated Legislation

Illegality also provides a basis for challenging delegated legislation.

Rules, regulations, notifications and bye-laws must remain within the authority granted by the parent statute.

Delegated legislation may be invalid where it:

• Exceeds the scope of the enabling Act.
• Contradicts the parent statute.
• Violates the Constitution.
• Is made by an authority lacking legal power.
• Fails to comply with a mandatory procedural requirement.

This is commonly examined through substantive ultra vires and procedural ultra vires.

Illegality and Ultra Vires

The doctrine of ultra vires is closely connected with illegality.

Ultra vires means “beyond the powers.”

An administrative action may be ultra vires where the authority:

• Acts outside its jurisdiction.
• Exceeds statutory powers.
• Uses power for an improper purpose.
• Violates statutory limitations.
• Fails to comply with mandatory legal requirements.

The doctrine ensures that administrative authorities remain within the boundaries established by law.

Illegality and Irrationality

Illegality and irrationality are separate grounds of judicial review, although they may overlap.

Illegality	Irrationality
Concerns violation or incorrect application of law	Concerns extreme legal unreasonableness
Focuses on legal authority and limits	Focuses on the rationality of the decision
Includes jurisdictional error	Traditionally associated with Wednesbury unreasonableness
Includes improper purpose and unlawful delegation	Concerns decisions falling outside the range of lawful choices
Asks whether the authority acted according to law	Asks whether the decision is legally irrational or unreasonable

Illegality and Procedural Impropriety

Procedural impropriety focuses on whether the authority followed required procedures and standards of procedural fairness.

Illegality is broader and can concern the substantive legal limits of power, jurisdiction, statutory purpose and interpretation.

A single administrative action may potentially involve both illegality and procedural impropriety.

Important Cases

Council of Civil Service Unions v. Minister for the Civil Service (1985)

The GCHQ case is a leading authority for the traditional classification of judicial review into illegality, irrationality and procedural impropriety.

Illegality was explained in terms of the decision-maker understanding correctly the law regulating its decision-making power and giving effect to it.

State of Orissa v. Dr. Binapani Dei (1967)

The Supreme Court recognised the importance of procedural fairness where administrative action has civil consequences. The case is important for understanding judicial control over administrative decisions.

A.K. Kraipak v. Union of India (1969)

The Supreme Court emphasised fairness and natural justice in administrative decision-making and demonstrated the judiciary’s role in controlling unlawful administrative processes.

Barium Chemicals Ltd. v. Company Law Board (1967)

The Supreme Court examined the exercise of statutory administrative power and held that the existence of a subjective satisfaction does not place the exercise of statutory power completely beyond judicial scrutiny.

S.R. Venkataraman v. Union of India (1979)

The Supreme Court emphasised that statutory power must be exercised for the purpose for which it was conferred. Exercise of power for an unauthorised purpose can invalidate administrative action.

Tata Cellular v. Union of India (1994)

The Supreme Court explained the limits of judicial review in government contracts and emphasised that courts generally examine the legality of the decision-making process rather than substituting their own judgment for that of the administrative authority.

Remedies for Illegality

Where administrative action is found unlawful, courts may provide appropriate remedies depending upon the circumstances.

These may include:

Certiorari

A court may quash an unlawful decision of a body amenable to the writ where the requirements for certiorari are satisfied.

Mandamus

Mandamus may direct a public authority to perform a public or legal duty where the conditions for issuing the writ are fulfilled.

Prohibition

Prohibition may prevent a subordinate court or tribunal from continuing proceedings beyond its lawful jurisdiction.

Declaration

A court may declare the legal position or the invalidity of administrative action where appropriate.

The precise remedy depends upon the jurisdiction of the court and circumstances of the case.

Limitations on Judicial Review for Illegality

Judicial review does not mean that every administrative error automatically results in the decision being quashed.

Courts may consider:

• The nature of the statutory power.
• Whether the alleged requirement is mandatory.
• The seriousness of the legal error.
• The effect of the error on the decision.
• Available statutory remedies.
• The nature of the rights affected.
• Whether the authority acted within a permissible range of discretion.

The court’s role remains one of judicial review rather than ordinary administrative appeal.

Key Points for Exams

• Illegality is a major ground of judicial review.
• It occurs when an administrative authority acts contrary to law or exceeds its legal powers.
• Lack of jurisdiction and excess of jurisdiction are important forms of illegality.
• An authority must correctly understand and apply the law governing its powers.
• Statutory power must be exercised for a proper purpose.
• Relevant considerations must be considered and irrelevant considerations must not improperly influence the decision.
• Improper delegation and acting under dictation may constitute unlawful exercise of power.
• Mandatory statutory procedures must be followed.
• The doctrine of ultra vires is closely connected with illegality.
• Illegality is distinct from irrationality and procedural impropriety.
• CCSU v. Minister for the Civil Service (1985) is a leading case on the traditional grounds of judicial review.
• Indian courts apply these principles within the constitutional framework, particularly Articles 14, 32 and 226.

Conclusion

Illegality is a fundamental ground of judicial review because administrative authorities derive their powers from law and must exercise those powers within legally prescribed limits. Courts ensure that authorities do not exceed their jurisdiction, misuse statutory powers, disregard mandatory legal requirements or misunderstand the law governing their functions.

The principle ultimately gives effect to the rule of law by ensuring that administrative power remains subordinate to constitutional and legal authority. Judicial review on the ground of illegality therefore provides an essential safeguard against unlawful exercise of public power.