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