Formation of Opinion – Scope of Judicial Review

India– Where powers are conferred on public authorities to exercise the same when “they are satisfied” or when “it appears to them”, or when “in their opinion” a certain state of affairs exists; or when powers enable public authorities to take “such action as they think fit” in relation to a subject matter, the courts will not readily defer to the conclusiveness of an executive authority’s opinion as to the existence of a matter of law or fact upon which the validity of the exercise of the power is predicated. Administrative decisions in exercise of powers even if conferred in subjective terms are to be made in good faith on relevant consideration. The courts inquire whether a reasonable man could have come to the decision in question without misdirecting himself on the law or the facts in a material respect. The standard of reasonableness to which the administrative body is required to conform may range from the courts’ own opinion of what is reasonable to the criterion of what a reasonable body might have decided. The courts will find out whether conditions precedent to the formation of the opinion have a factual basis.
Where the proviso opens with the words “where the State Government is of opinion …”. These words are indicative of the satisfaction being subjective one but there must exist circumstances stated in the proviso which are conditions precedent for the formation of the opinion. Opinion to be formed by the State Government cannot be on imaginary grounds, wishful thinking, however laudable that may be. Such a course is impermissible in law. The formation of the opinion, though subjective, must be based on the material disclosing that a necessity had arisen.
The expression: “as considered necessary” is again of crucial importance. The term “consider” means to think over; it connotes that there should be active application of the mind. In other words the term “consider?? postulates consideration of all the relevant aspects of the matter. The word “necessary” means indispensable, requisite, indispensably requisite, useful, incidental or conducive, essential, unavoidable, impossible to be otherwise, not to be avoided, inevitable. The word “necessary” must be construed in the connection in which it is used. The formation of the opinion by the State Government should reflect intense application of mind with reference to the material available on record that it had become necessary .
The construction placed on the expression “reason to believe” will equally be applicable to the expression “is of opinion”. The expression “is of opinion” does not confer any unlimited discretion on the Government. The discretion, if any, conferred upon the State Government is not unfettered. There is nothing like absolute or unfettered discretion and at any rate in the case of statutory powers. The court is entitled to examine whether there has been any material available with the State Government and the reasons recorded, if any, in the formation of opinion and whether they have any rational connection with or relevant bearing on the formation of the opinion. The court is entitled particularly, in the event, when the formation of the opinion is challenged to determine whether the formation of opinion is arbitrary, capricious or whimsical. It is always open to the court to examine the question whether reasons for formation of opinion have rational connection or relevant bearing to the formation of such opinion and are not extraneous to the purposes of the statute.
Please see the following judgments on this topic: M.A. Rasheed v. State of Kerala (Supreme Court of India, 1974); Bhikhubhai Vithlabhai Patel v. State of Gujarat (Supreme Court of India, 2008)


Author: Vikrant Narayan Vasudeva
Photo by John Lord/ CC BY 2.0

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