Unit Iii

UNIT III
CHAPTER II
Administrative Discretion
• Administration plays an important role in every individual’s life.
• Administrative law remarkably expanding to meet the changing demands of
new political, economic and social conditions
• Large discretions have to be given to the Administrative authorities
• Administrative discretion is a determination reached on the basis of
provable or disprovable consideration
• Decision is taken on the basis of the evidence and as per policy and
expediency.
• Judicial quest in administrative matters is to strike a just balance between the
administrative discretion to decide matters as per Government policy, and the
need of fairness.
• Any unfair must be set right by administrative review.
• Courts have no power to interfere with the actions taken by Administrative
authorities
• But this does not mean that there is no control over the discretion of the
administration
• In modern times many legislations confer vast discretionary powers on
administrative authorities due to many administrative problems
• Court may compel the authorities to exercise their discretion when they are
vested with such power
 Types of Administrative Discretion
1. Subjective administrative discretion
• Authority is empowered to set his own limits to determine the criteria for a
decision
2. Objective administrative discretion
• Where the statute imposes ascertainable pre determined criteria with the
authority, he must make his choice
Judicial Review of Administrative Action
 Judicial Control (Review) of Administrative Discretion
I. Failure to exercise Discretion
II. Abuse or Misuse of Discretion
III. Violation of Fundamental Rights

I. Failure to exercise Discretion
1. Application of mind to facts and circumstances
2. Acting under direction or dictation
3. Discretion by the authority itself
4. Considerations of the facts of the individual case
5. Acting mechanically
6. Sub-delegation
1. Leaving out relevant events/circumstances
2. Exceeding the limits of power
3. Discretion based on malice or malafide
4. Mixed Considerations
5. Irrelevant Considerations
6. Different purpose other than required purpose

7. Improper or colorable exercise of power
8. Violation of Natural Justice
9. Non-compliance with procedural requirements
10. Unreasonable exercise of discretion
III. Violation of Fundamental Rights

 Judicial Review
• Judicial review has been recognized as a necessary and basic requirement
for the construction of an advanced civilization to safeguard the liberty and
rights of the citizens.
• Judicial review is the court’s power to review the actions of other branches
of government, especially the court’s power to deem invalid actions
exercised by the legislative and executive as ‘unconstitutional’.
• The power of judicial review in India is significantly vested upon the High
Courts and the Supreme Court of India.
 Judicial review in India deals with:
1. Judicial Review of Legislative Actions

2. Judicial Review of Administrative Actions
3. Judicial review of Judicial Actions
 Judicial review ensures the legality of administrative actions

 Grounds of Judicial Review
1. Jurisdictional Error
2. Irrationality
3. Procedural Impropriety
4. Proportionality
5. Legitimate Expectation
1. Jurisdictional Error
• Term ‘jurisdiction’ means the power to decide.
• There might be a ‘lack of jurisdiction’, ‘excess of jurisdiction’ or ‘abuse
of jurisdiction’. The court may reject an administrative action on the
ground of ultra vires in all these three situations.
• A case of ‘lack of jurisdiction’ is where the tribunal or authority holds no
power or jurisdiction at all to pass an order.
• Court may review this administrative action on the ground that the authority
exercised jurisdiction which it was not supposed to.
• The power of review may be exercised on the following three grounds-
1. That the law under which the administrative authority is constituted and
exercising jurisdiction is itself unconstitutional
2. That the authority is not properly constituted as the law requires
3. That the authority has mistakenly decided a jurisdictional fact and

henceforth assumed jurisdiction which did not belong to it first.
• A case of ‘excess of jurisdiction’ covers a situation wherein though the

authority initially had the jurisdiction over a matter but then it exceeded and
afterwards its actions become illegal.
• This can happen in the following situations when –
1. An administrative body continues to exercise jurisdiction despite the

occurrence of an event ousting the jurisdiction
2. When it is entertaining matters outside its jurisdiction

2. Irrationality (Wednesbury Test)
• A general established principle is that the discretionary power conferred on

an administrative authority should be exercised reasonably.
• A decision of an administrative authority can be held to be unreasonable
1. if it is so outrageous in its defiance of logic or
2. prevalent moral standards that no reasonable person who had applied

his mind to the subject could have arrived at it.
• ‘Irrationality’ was developed as a ground of judicial review in the
Associated Provincial Picture House v. Wednesbury(1947) case which later
came to be known as the ‘Wednesbury test’.
• The court laid out three conditions in order to conclude the right to intervene-
1. In arriving at the decision, the defendant took into consideration the
factors that ought not to have been taken into, or
2. The defendant failed to take into consideration the factors that ought to
have been taken into, or
3. The decision was so unreasonable that any reasonable authority would
never consider imposing it.
3. Procedural Impropriety
•It is a failure to comply with the laid down procedures.
•Procedural Impropriety is to cover two areas which are failure
1.to observe rules given in statute and
2.to observe the basic common-law rule of justice
Ridge v Baldwin(1963) is an exclusive case
• Ridge, the Chief Constable of Brighton was suspended on the charges of
conspiracy to obstruct the course of justice.
• Despite the clearance of allegations against Ridge, the Judge made
comments which criticized Ridge’s conduct. Following that, Ridge was
dismissed from the force but he was not invited to attend the meeting
which had decided his dismissal.
• Later, he was given an opportunity to be heard before the committee
which had dismissed his appeal.
• Ridge then appealed to the House of Lords that the committee had
totally violated the rules of natural justice.
• This case has been important because of the emphasis on the link
existing between the right of a person to be heard and the right to know
the case brought against him.
4. Proportionality
• Doctrine of proportionality is concerned with the priorities of decision
making. Excessive penalties are to be avoided and available restrictive
alternatives are to be adopted
• If action taken by an executive is grossly disproportionate and more serious
to the nature of misconduct, then such decision is arbitrary
• Often improper and unreasonable exercise of power amounts to violation of
Doctrine of proportionality.
Hind Construction Co. v. Workmen (1965),
• Some workers called for a holiday and remained absent.
• Later dismissed from service.
• Court held that the workers should have been warned and fined instead of
abruptly being dismissed in a permanent manner.
• Question to think that any reasonable employer would have given such
extreme punishment.
• Court held that the punishment imposed on the workmen was not only
severe but also disproportionate.
5. Legitimate Expectations
• Legitimate expectations of a person of being treated in a certain way by an
administrative authority
• Though there is no legal right, the legitimate expectation of receiving
benefit is there
• Such expectations can be reasonably expect
• Court may insist an administrative authority to act fairly
Madras City Wine Merchants Association vs State of Tamil Nadu
Decisions affecting such legitimate expectations are subject to judicial review
 Remedies
• Five types of writs are available for judicial review of administrative actions
given under Article 32 and Article 226 of the Constitution of India.
1. Writ of Habeas Corpus

2. Writ of Mandamus
3. Writ of Certiorari
4. Writ of Prohibition
5. Writ of Quo Warranto
 Writ of Habeas Corpus
• It means “have the body”. This writ is issued as an order calling upon the
person who has detained another person to produce the detainee before the
court of law.
• If the court finds out that the detention has been illegal or without legal
justification, it will order for the immediate release of the detainee.
• The main objective of this writ is not to punish the detainer but to release
the detainee from wrongful detention.
 Writ of Mandamus
• It means ‘to command the public authority’ to perform its duty.
• It is a command given by the higher courts (High Courts and Supreme

Court) to the Government, Inferior courts, tribunals, corporations,
authorities or any other person to do any act or refrain from doing an illegal
act.
• The purpose of this writ is to compel the performance of public duties and
to keep control over the activities of the administration.
 Writ of Certiorari
• This writ is issued by the Superior Courts (High Courts and the Supreme
Court) to the inferior court or tribunal or body which may exercise judicial
or quasi-judicial functions, for the correction of jurisdiction or error of law
committed by them.
• If any order passed by them is illegal, then the Superior Court may quash or
demolish it. Grounds of this writ are
a) excess or failure to exercise the jurisdiction
b) violation of the principles of natural justice
c) authority has failed to correct an error which has been apparent on the
face of the record.
 Writ of Prohibition
• Prohibition is issued by a superior court to an inferior court or tribunal

or body exercising judicial or quasi-judicial functions to prevent them
from exceeding their jurisdiction.
• It is based upon the maxim ‘Prevention is better than cure’.

 Writ of Quo Warranto
• The word ‘quo warranto’ means “by what authority”.
• Such writ is issued against a person who usurps a public office.
• The court directs the concerned person to show by what authority he holds
that office.
• The unauthorized or illegal usurper would be removed by judicial order and
the right person belonging to it would be entitled to it.

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UNIT III

I. Failure to exercise Discretion

II. Abuse or Misuse of Discretion

III. Violation of Fundamental Rights

1. Application of mind to facts and circumstances

2. Acting under direction or dictation

3. Discretion by the authority itself

4. Considerations of the facts of the individual case

1. Leaving out relevant events/circumstances

2. Exceeding the limits of power

3. Discretion based on malice or malafide

6. Different purpose other than required purpose

7. Improper or colorable exercise of power

8. Violation of Natural Justice

9. Non-compliance with procedural requirements

10. Unreasonable exercise of discretion

III. Violation of Fundamental Rights

 Judicial review in India deals with:

1. Judicial Review of Legislative Actions

 Judicial review ensures the legality of administrative actions

 Grounds of Judicial Review

• The power of review may be exercised on the following three grounds-

2. That the authority is not properly constituted as the law requires

3. That the authority has mistakenly decided a jurisdictional fact and

• A case of ‘excess of jurisdiction’ covers a situation wherein though the

• This can happen in the following situations when –

1. An administrative body continues to exercise jurisdiction despite the

2. When it is entertaining matters outside its jurisdiction

2. Irrationality (Wednesbury Test)

• A general established principle is that the discretionary power conferred on

• A decision of an administrative authority can be held to be unreasonable

1. if it is so outrageous in its defiance of logic or

2. prevalent moral standards that no reasonable person who had applied

1. Writ of Habeas Corpus

• It means ‘to command the public authority’ to perform its duty.

• It is a command given by the higher courts (High Courts and Supreme

• Prohibition is issued by a superior court to an inferior court or tribunal

• It is based upon the maxim ‘Prevention is better than cure’.

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