Judicial Control of
Administrative Discretion
Dr. Sushma Sharma
Judicial Behavior and Administrative Discretion in India
Though courts in India have developed a few effective parameters for
the proper exercise of discretion, the conspectus of judicial behavior still
remains halting, variegated and residual, and lacks the activism of the
American courts. Judicial control mechanism of administrative discretion is
exercised at two stages:
I) at the stage of delegation of discretion;
II) at the stage of the exercise of discretion.
(1) Control at stage of delegation of discretion
The court exercise control over delegation of discretionary powers to the
administration by adjudicating upon the constitutionality of the law under
which such powers are delegated with reference to the fundamental rights
enunciated in Part III of the Indian Constitution. Therefore, if the law confers
vague and wide discretionary power on any administrative authority, it may be
declared ultra vires Article 14, Article 19 and other provisions of the
Constitution.
In certain situations, the statute though it does not give discretionary power to
the administrative authority to take action, may give discretionary power to
frame rules and regulations affecting the rights of citizens. The court can
control the bestowal of such discretion on the ground of excessive delegation.
(2) Control at the stage of the exercise of discretion
In India, unlike the USA, there is no Administrative Procedure Act providing
for judicial review on the exercise of administrative discretion. Therefore, the
power of judicial review arises from the constitutional configuration of
courts. Courts in India have always held the view that judge-proof discretion
is a negation of the rule of law. Therefore, they have developed various
formulations to control the exercise of administrative discretion. These
formulations may be conveniently grouped into two broad generalizations:
i) That the authority is deemed not to have exercised its discretion at all.
ii) That the authority has not exercised its discretion properly.
That the authority is deemed not to have exercised its discretion at all
:-Under this categorization, courts exercise judicial control over administrative
discretion if the authority has either abdicated its power or has put fetters on
its exercise or the jurisdictional facts are either non-existent or have been
wrongly determined.
Purtabpore Company Ltd. V. Cane Commissioner of Bihar,
(AIR 1970 SC
1896)
Purtabpore Company Ltd. V. Cane Commissioner of Bihar,(AIR 1970 SC
1896) is a notable case in point. In this case the Cane Commissioner who had
the power to reserve sugarcane areas for the respective sugar factories, at the
dictation of the Chief Minister excluded 99 villages from the area reserved by
him in favor of the appellant-company. The court quashed the exercise of
discretion by the Cane Commissioner on the ground that the abdicated his
power by exercising it at the dictation of some other authority; therefore, it
was deemed that the authority had not exercised its discretion at all. Thus the
exercise of discretion or in compliance with instructions of some other person
amounts to failure to exercise the discretion altogether. It is immaterial that
the authority invested with the discretion itself sought the instructions
That the authority has not exercised its
discretion properly
That the authority has not exercised its discretion properly This is an
all-embracing formulation developed by courts in India to control the
exercise of discretion by the administrative authority. Improper exercise of
discretion includes everything that English courts include in ‘unreasonable’
exercise of discretion and American courts include in ‘arbitrary and
capricious’ exercise of discretion. Improper exercise of discretion includes
such things as ‘taking irrelevant considerations into account’, ‘acting for
improper purpose’, ‘asking wrong questions’, ‘acting in bad faith’,
‘neglecting to take into consideration relevant factors’ or ‘acting
unreasonable’.
S.R. Venkataraman v. Union of India,(1979
2SCC 491
S.R. Venkataraman v. Union of India,(1979 2SCC 491) the appellant, a
Central Government officer, was prematurely retired from service in ‘public
interest’ under Rule 56(j)(i) on attaining the age of 50 years. Her contention
was that the government did not apply its mind to her service record and that
in the facts and circumstances of the case the discretion vested under Rule
56(j)(I) was not exercised for furtherance of public interest and that the order
was based on extraneous circumstances. The government conceded that there
was nothing on record to justify the order. The Supreme Court, quashing the
order of the government, held that if a discretionary power has been exercised
for an unauthorized purpose, it is generally immaterial whether its repository
was acting in good faith or bad faith. An administrative order based on a
reason or facts that do not exist must be held to be infected with an abuse of
power.
i) Use for improper purpose: -
Now a day, the administrative authorities are conferred wide discretionary
powers. There is a great need of their control so that they may mot be misused.
The discretionary power is required to be exercised according to law. When the
mode of exercising a valid power is improper or unreasonable there is an abuse
of power. In the following conditions the abuse of the discretionary power is
inferred: -
i) Use for improper purpose: - The discretionary power is
required to be used for the purpose for which it has been given.
If it is given for one purpose and used for another purpose. It will
amount to abuse of power.
Malafide or Bad faith: -
ii) Malafide or Bad faith: - If the discretionary power is exercised
by the authority with bad faith or dishonest intention, the action
is quashed by the court. Malafide exercise of discretionary
power is always bad and taken as abuse of discretion. Malafide
(bad faith) may be taken to mean dishonest intention or corrupt
motive. In relation to the exercise of statutory powers it may be
said to comprise dishonesty (or fraud) and malice. A power is
exercised fraudulently. If its repository intends to achieve an
object other than that for which he believes the power to have
been conferred. The intention may be to promote another public
interest or private interest.
IRRELEVANT CONSIDERATIONS
Irrelevant consideration: - The decision of the administrative
authority is declared void if it is not based on relevant and
germane considerations. The considerations will be irrelevant if
there is no reasonable connection between the facts and the
grounds.
iv) Leaving out relevant considerations: - The administrative
authority exercising the discretionary power is required to take
into account all the relevant facts. If it leaves out relevant
consideration, its action will be invalid.
Mixed consideration
v) Mixed consideration: - Sometimes the discretionary power is
exercised by the authority on both relevant and irrelevant
grounds. In such condition the court will examine whether or not
the exclusion of the irrelevant or non-existent considerations
would have affected the ultimate decision. If the court is satisfied
that the exclusion of the irrelevant considerations would have
affected the decision, the order passed by the authority in the
exercise of the discretionary power will be declared invalid but if
the court is satisfied that the exclusion of the irrelevant
considerations would not be declared invalid.
Unreasonableness:
Unreasonableness: - The Discretionary power is required to be
exercised by the authority reasonably. If it is exercised
unreasonably it will be declared invalid by the court. Every
Module – 1 54
authority is required to exercise its powers reasonably. In a case
Lord Wrenbury has observed that a person in whom invested a
discretion must exercise his discretion upon reasonable
grounds. Where a person is conferred discretionary power it
should not be taken to mean that he has been empowered to do
vii) Colourable Exercise of Power
what he likes merely because he is minded to do so. He is
required to do what he ought and the discretion does not
empower him to do what he likes. He is required, by use of his
reason, to ascertain and follow the course which reason directs.
He is required to act reasonably
vii) Colourable Exercise of Power: - Where the discretionary
power is exercised by the authority on which it has been
conferred ostensibly for the purpose for which it has been given
but in reality for some other purpose, It is taken as colourable
viii) Non-compliance with procedural requirements and
principles of natural justice
It is taken as colourable
exercise of the discretionary power and it is declared invalid.
viii) Non-compliance with procedural requirements and
principles of natural justice: - If the procedural requirement
laid down in the statute is mandatory and it is not complied, the
exercise of power will be bad. Whether the procedural
requirement is mandatory or directory is decided by the court.
Principles of natural justice are also required to be observed.
ix) Exceeding jurisdiction: - The authority is required to exercise
the power with in the limits or the statute. Consequently, if the
authority exceeds this limit, its action will be held to be ultra vires
and, therefore, void.
Failure to exercise Discretion.
IIIn the following condition the authority is taken to have failed to exercise its discretion
and its decision or action will be bad.
i) Non-application of mind: - Where an authority is given
discretionary powers it is required to exercise it by applying its
mind to the facts and circumstances of the case in hand. If he
does not do so it will be deemed to have failed to exercise its
discretion and its action or decision will be bad.
ii) Acting under Dictation:
- Where the authority exercises its
discretionary power under the instructions or dictation from
superior authority. It is taken, as non-exercise of power by the
authority and its decision or action is bad. In such condition the
authority purports to act on its won but in substance the power is
not exercised by it but by the other authority. The authority
entrusted with the powers does not take action on its own
judgement and does not apply its mind. For example in
Commissioner of Police v. Gordhandas
Commissioner of Police v. Gordhandas
Commissioner empowered to grant license for construction of
cinema theatres granted the license but later cancelled it on the
discretion of the Government. The cancellation order was
declared bad as the Police Commissioner did not apply his mind
and acted under the dictation of the Government.
III) Imposing fetters on the exercise of
discretionary powers: -
If the
authority imposes fetters on its discretion by announcing rules of policy
to be applied by it rigidly to all cases coming before it for decision, its
action or decision will be bad. The authority entrusted with the
discretionary power is required to exercise it after considering the
individual cases and if the authority imposes fetters on its discretion by
adopting fixed rule of policy to be applied rigidly to all cases coming
before it, it will be taken as failure to exercise discretion and its action
or decision or order will be bad.
Thank you
