SECTION 01

 Introduc on
 Defini on, Nature and scope of Administra ve Law.
 Reasons for Development and Growth of Administra ve Law
 Sources of Administra ve Law.
 Droit Administra ve – Conseil D'etat.
 Rule of Law- Meaning and concept, Merits & Demerits, Rule of Law in Indian context.
 Doctrine of separa on of Power, Principle of Checks & Balances, applica on of
separa on of Power in India, United states of America and United Kingdom.
 Administra ve Ac on, its classifica on (quasi legisla ve, quasi judicial and
administra ve) Administra ve Discre on – meaning and ac on – Abuse of Discre on.

INTRODUCTION-
“Power tends to corrupt and absolute power corrupts absolutely”- Lord Acton
The essence of this quote is that when individuals or groups are granted power, there is a risk
that they will abuse it for their own gain or become tyrannical in their ac ons. This is a cau onary
reminder that unchecked authority can lead to ethical lapses and oppressive behavior.

“Concentra on of power is tyranny”- James Madison.

The accumula on of all powers, legisla ve, execu ve, and judiciary, in the same hands,
whether of one, a few, or many, and whether hereditary, self-appointed, or elec ve, may justly
may lead to tyranny i.e oppression.”
Administra on law is about answering the below 3 ques ons:
1. How it came in existence?
2. Administra ve law is for whom?
3. Whys is it in existence?

DEFINITION

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SOURCES OF ADMINISTRATIVE LAW

SCOPE OF ADMINI

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REASONS FOR DEVELOPMENT AND GROWTH OF ADMINISTRATIVE LAW

DROIT ADMINISTRATIVE – CONSEIL D'ETAT.

BACKGROUND

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MEANING

FUNCTIONS OF DETAT:

RULES AND PRINCIPALS:

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DICIYS CRITICISMS

ARRETS BLANCO JUDGMENT

M. Blanco brought suit against the Government department, for the damage suffered by his
daughter as a result of the conduct of workers employed by a State owned Tabacco
company;
The ques on raised was – Which authority either Judicial or Administra on has the
competence to hear the ma er.
As the responsibility of the state, being neither general nor absolute, the administra ve
authority has the competence to hear the case.
The judgement se led that in all ma ers involving administra on, the Judgment of Council
DETAT would be final.
EFFECTS OF BANCO JUDGEMENT
 Counseil DETAT stated receiving complains from ci zens rather than the ministers .
 It stated ge ng cases like, damages for wrongful act of government, personal claims
of civil servant, cases regarding public policies.
 It became the highest administra ve court and stated ge ng appeals from all
administra ve tribunals
 It stated advising government on prepara on of Bills.
 It answered government queries.
 It conducted studies on Administra ve and public polices
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RULE OF LAW- MEANING AND CONCEPT, MERITS & DEMERITS, RULE OF LAW
IN INDIAN CONTEXT.
THE DIVINE THEORY OF STATE:
 The king was given the power to govern the people by the Divine Authority (God).
 This theory propagates that, King can do no wrong, king is above law.
La Principle de legalite – “Government Based on the principle of law”.
SIR EDWARD COKE THEORY OF RULE OF LAW.
 The Rule of Law was first originated by Sir Edward Coke, the Chief Jus ce in England
at the me of King James I.
 He was the first person to cri cize the maxims of Divine Concept.
 He strongly believed that the King should also be under the Rule of Law.
His concept or rule of law was
a. Against the authoritarian rule of the crown.
b. The rule of law should exclude arbitrary authority of government.
c. Rule of law should protect the Individuals and their rights.
Main Objects of Rule of law according to Sir Edward Coke.
a. To restrict government from authoritarian rule.
b. To exclude arbitrary authority of government.
c. Equal applica on of law and order to all ci zens irrespec ve of status and rank.
d. To do things in legally right way.
e. To protect individuals and their rights
f. To make law supreme.
g. To Enable Administra ve ac on to be ques oned by law.
THE RULE OF LAW -A.V. DICEY
The Rule of Law doctrine was later developed by A.V. Dicey in his book, Introduc on to the
Law of Cons tu on (1885).
The Rule of Law according to Dicey means that no man is punishable or can be lawfully
made to suffer in body or goods except for dis nct breach of law and no man is above the
law.
The term Rule of Law thus, means the paramountcy of Law over Government.

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Three principles proposed by A.V. Dicey
1. Absolute supremacy of Law
2. Equality before law
3. Predominance of legal spirit.

Dicey rule of law consists of following three meanings:

1. Equality before the law:
 it emphasises the impar ality of law.
 It means that there shall be no dis nc on between the rich and the poor, officials
and non-officials,majority and minority,
 No one can be degraded and no one can be upgraded.
 Law gives equal jus ce to all.
2. Supremacy of law :
 The Rule of Law rejects all kinds of arbitrary and discre onary powers of the
government or public officials.
 It implies that a man may be punished for a breach of law but he can be punished for
anything else.
 An alleged offence is required to be proved before the ordinary courts in accordance
with the legal procedure.
 Even government is subjected to law.
3. Predominance of legal spirit i.e Cons tu onal Law stems from ordinary law:
 It is generally presumed that the wri en cons tu on is the source of legal liber es of
ci zens. However, it is not true as Britain has an unwri en Cons tu on.
 Legal spirit is the real source of law in England. The legal spirit is seen in its customs,
conven ons and judicial decisions. Dicey opines that the individual rights and
liber es are more safely protected in Britain than France.
The basic features of Rule of Law as per Dicey:
a) Law does not recognise any special rights for any individual or group of individuals.
b) Law does not recognise any dis nc on between one individual and the other on the
basis of religion, race, sex, etc.
c) None is punished without proper trial.
d) All will be tried by the same court under the same law.

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 e) The rule of law does not give scope to absolute and arbitrary powers to the execu ve.
Merits of the Rule of Law:
1. It reverses the tyranny or anarchy.
2. It puts legal barriers to governmental arbitrariness.
3. It provides safe guards for the protec on of individuals.
4. It echoes the Magna Carta saying, No free man shall be taken or imprisoned or
diseased or outlawed or exiled nor will we go or send for him, except by the lawful
judgment of his peers or by the law of the land.
5. Rules of law are rooted in conven ons and customs of the country.
6. It gives freedom to the judiciary to control the execu ve who exceeds their
jurisdic on.
7. Public welfare should be the dominant considera on.
Cri cisms:
Dicey explained the concept Rule of Law in 1885. Many changes have taken place since
then. So, it is in different shapes due to the following condi ons:
1. Certain privileges are granted to the officials in UK through enac ng the Public
Authori es Protec on Act.
2. With the development of Welfare State concept, the role of state had expanded. It
gave power of adjudica on to the administra ve agencies, who some mes decide cases.
3. In emergency, Fundamental rights are suspended by the execu ve.
MODERN CONCEPT OF RULE OF LAW:
The Rule of Law is a dynamic concept. It cannot be taken to mean that it is a fixed principle
of law from which there cannot be any departure.
The concept Rule of Law has been discussed by the Interna onal Commission of Jurists met
in 1959 at New Delhi. The major findings are:
1.Rule of Law to safeguard and advance the poli cal and civil rights of the individual in a
free society.
2.To establish social, economic, educa onal and cultural condi ons under which the
individual may realise his legi mate aspira ons and dignity.

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 3.It should not interfere with the religious belief and should not restrict freedom of
speech or freedom of person.
4.No discrimina on on minority groups.
5.Adequate safe guards against abuse of power by the execu ves.
6. There should be an independent judiciary with security of tenure free from legisla ve
and execu ve interference.
7.The rule of law necessitates an independent legal profession.
RULE OF LAW IN INDIA:
1.The doctrine of rule of law was not known to ancient and medieval India. The king was
the fountain head of jus ce and the protector of all laws. He was considered to be above
the law.
2.During the Bri sh rule, the principle of the Rule of Law was neglected though this
principle was followed in Britain. The East India Company was interested in the expansion of
its trade, revenue and territorial expansion. It gave lesser importance to rule of law and fair
jus ce.
3. Even in 1694, East India Company dismissed the Chief Judge of the Admiralty Court of
Madras, John Dollen for the judgement against the Company on the pretext of taking a
bribe. It always preferred civil servants of the Company as judges. Chief Jus ce Parker and
Chief Jus ce Braddy II were also dismissed for their refusal to subordinate their judgements
to the wishes of the execu ve.
4. With the establishment of the Mayors Courts under the Charter of 1726, Judges started
to work with the spirit of judicial independence and rule of law and this resulted in conflict
between the judges and the Governors-in-Council. By the charter of 1753, the Judiciary was
made subservient to the execu ve.
5. When the Supreme Court of Calcu a was started under the Charter of 1774, Chief Jus ce
Impey acted as per the rule of law. So he was called back to England as he conflicted with
the Governor General.
6. During the Crowns rule, Indian High Courts Act was passed in 1861 and High Courts were
given wide jurisdic on. The Law Commissions were appointed for the purpose of law
reforms. Judicial posi on improved much compared to the rule of the East India Company.
A er Independence:

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1. The rule of law has been welcomed by the framers of our cons tu on. The preamble
assures to provide equality of status and of opportunity and to promote among them all. It
provides the most important fundamental rights to the ci zens.
2. The Ar cles from 12 to 35 of Part III have to be protected by the Supreme Court and High
Courts.
3. Ar cle 14 of the Cons tu on says that, The state shall not deny to any person equality
before law within the territory of India. However, it is to be noted that there are few
excep ons to the rule of equality.
4. According to Ar cle 361, The President or the Governor of a state are not answerable to
any court for exercising of powers and du es of his office or any act done by him in the
exercise of those powers and du es provided that the conduct of the President may be
brought under review, on a charge under Ar cle 61, which provided for any person to bring
appropriate proceedings against the Governor of a state.
5. According to Ar cle 20 (1) of the Cons tu on, No person shall be convicted of any
offence except for viola on of a law in force at the me of the commission of the act
charged.
6. Ar cle 21 emphasis that no person shall be deprived of his life or personal liberty except
according to the procedure established by the law.
7. Ar cle 14 provides that no discussion shall take place in the Parliament with respect to
the conduct of any judge of the Supreme Court or High Court in the discharge of his du es
except upon a mo on for presen ng an address to the President praying for removal of the
Judge as hereina er provided. The rule of law is regarded as a part of the basic structure of
the cons tu on and therefore, it cannot be abrogated or destroyed by the Parliament.
Every organ of the state is regulated and controlled by the Rule of Law. Our cons tu on is
the Mandate. It is the rule of law.

Conclusion:
Hence, the Rule of Law means that the decisions should be made by the applica on of
known principles and rules, such decisions should be predictable and the ci zens should
know where he is. It excludes arbitrariness. Its postulate is Intelligence without passion and
reason free from desire.

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DOCTRINE OF SEPARATION OF POWER, PRINCIPLE OF CHECKS & BALANCES, APPLICATION
OF SEPARATION OF POWER IN INDIA, UNITED STATES OF AMERICA AND UNITED
KINGDOM.
INTRODUCTION:
 The intent of separa on of powers is to prevent the concentra on of unchecked
power and to provide for checks and balances, in which the powers of one branch of
government is limited by the powers of another branch.
 It aims to prevent abuses of power and avoid autocracy.
 Separa on of power simply means that distribu on of the powers as well du es
among the three pillars of the na on i.e. the execu ve, legislature and judiciary.
JURISPRUDENCE:
Montesquieu – The Spirit of law;
 He gave difference between the func ons and powers of- the execu ve, the
legislature and the judiciary.
 He emphasized that one body should not exercise more than one power.
Aristotle
 He was the first one who wrote about it, but not in obvious manner. In his book,
analysis has been found of three branches the delibera ve, execu ve and judicial.
Lord Acton

 Power tends to corrupt and absolute power corrupts absolutely

 John Locke, “Second Trea se of Civil Government”
 has include three powers explicitly- (1) discon nuous legisla ve power, (2)
con nuous legisla ve power and (3) federa ve power.
HISTORY:
Greece
 The separa on of powers, also known as trias poli ca.
 The model was first developed in ancient Greece and came into widespread use by
the Roman Republic as part of the uncodified Cons tu on of the Roman Republic.
 Under this model, the state is divided into branches or estates, each with separate
and independent powers and areas of responsibility.
Ancient India:
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  The roots of SOP are found in the Vedas.
 In Narad Smri we trace the very principle of separa on of power. At that me Deewan
was head of the Execu ve wing of any legacy, Senapa did a job to maintain law and
order and Kaji was the judicial head.
 King was the supreme authority who makes the law and therefore he was similar to
present form of legislature.
England:
In England, there was a long war between the King and the Parliament this led ul mately to
recogni on the King to exercised execu ve powers; Parliament exercised legisla ve and courts
the judicial powers
Iimportance of Separa on of Power
 It aims at removing the concentrated power and preven ng abuse.
 It Safeguards individual liberty and Rights and protects ci zens from despo sm and
oppression.
 Prevents Autocracy and helps in sustaining a healthy democracy.
 It provides for checks and balances, which ensures less maladministra on, corrup on,
nepo sm, and misuse of power.
 Increases the efficiency of government by reducing the workload on any par cular
branch of government.
 It Ensures Judicial Independence from the other branches of government.
THEORY OF SEPARATION OF POWER
The Theory of Separa on of Powers signifies
I. The same person should not form part of more than one of the three organs (i.e. Execu ves,
Legislature and Judiciary) of the Government. For example, ministers should not sit in
Parliament.
II. One organ of the Government should not interfere with any other organ of the Government.
III. One organ of the Government should not exercise the func ons assigned to any other
organ.
Separa on of powers means distribu on of powers for specified func ons of the government.
All the powers of the government have been conceived as falling within one or another of
three great classes, as-
(1) the enactment of making laws,

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(2) the interpreta on of that laws and
(3) their enforcement; namely- legisla ve, judicial and execu ve. Government has been
deemed to be made up of three branches having for their func ons and such classifica on is
recognized as classical division.
ARTICLES OF CONSTITUTION BEHIND THE DOCTRINE OF SEPARATION OF POWER IN INDIA
o Ar cle 50 : The State shall take steps to separate the judiciary from the execu ve in the
public services of the State.
o Ar cle 123 : The President, being the execu ve head of the country, is empowered to
exercise legisla ve powers by Promulga ng ordinances in certain condi ons.
o Ar cles 121: No discussions shall take place in Parliament with respect to the conduct of
any Judge of the Supreme Court or a High Court in the discharge of his du es except in
certain condi ons.
o Ar cles 211: No discussion shall take place in the Legislature of a State with respect to
the conduct of any Judge of the Supreme Court or a High Court in the discharge of his
du es.
o Ar cle 122: The validity of proceedings in Parliament cannot be called into ques on in
any Court.
o Ar cle 212: Validity of proceedings in state legislatures cannot be called into ques on in
any Court.
o Ar cle 246: It deals with the division of power between the Union and the States. It
demarcates the powers of the Union and the State by classifying their powers into three
separate lists. They are the Union List, the State List, and the Concurrent List.
o Ar cle 361: The President or the Governor shall not be answerable to any court for the
exercise and performance of the powers and du es of his office.
Important Cases Related to Separa on of Power in India
o Ram Jawayya Kapur vs. State of Punjab : In this Judgement, the court accepted a non-
rigid defini on of separa on of powers as it found that, in a rigid sense, this doctrine
would become an imprac cal one.
o Kesavananda Bhara v. State of Kerala Case (1973): In this judgement of the 13-judge
bench, the doctrine of separa on of powers was included in the basic structure of the
cons tu on, and So any amendments which gave control of one organ over another

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 would be declared uncons tu onal, leaving the Execu ve, the Legislature and the
Judiciary completely independent.
o Indira Gandhi v. Raj Narain Case (1975): In this case, it was observed: “In the Indian
Cons tu on, there is separa on of powers in a broad sense only. A rigid separa on of
powers as under the American Cons tu on or the Australian Cons tu on does not
apply to India.
Doctrine of Checks & Balances?
o In the Indian Parliamentary democracy, separa on of func ons is followed and not of
powers, i.e., In India, strict separa on of powers is not followed as strictly and rigidly as
it is followed in the U.S.A.
o A system of checks and balances has been inserted so that the courts are competent to
strike down the uncons tu onal amendments made by the legislature.
o The purpose of the system of checks and balances is to prevent the arbitrary or
capricious use of power.
o Checks and balances between the three organs are ensured through the power of the
Judiciary to exercise judicial review over legisla ve and execu ve ac ons.
What is the Rela onship of Checks and Balances between Legislature and Judiciary?
o Judiciary’s Powers :
o The Supreme Court is the guardian and custodian of the Indian Cons tu on. It has
the authority to declare any law passed by the Legislature as null and void if it
contravenes the provisions enshrined in the Cons tu on of India. This is the
power of judicial review of the courts.
o The judiciary can also declare a law invalid if the subject ma er of the law is
beyond the jurisdic on of the legislature or if it violates fundamental rights.
o The judicial Courts can issue laws and policies through judgements. E.g., Vishaka
Guidelines on sexual harassment.
o Legislature’s Powers :
o Parliament is empowered to make laws for the judiciary. It can determine the
organisa on, jurisdic on, and terms of service of the judges.
o The procedures of Parliament are beyond the scope of scru ny of the judiciary.

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 o Judiciary can not ques on steps taken by a Member of Parliament or the presiding
officer to regulate the business of the House.
What is the Rela onship of Checks and Balances between the Execu ve and Judiciary?
o Under Ar cles 72 and 161, The President and the Governors of State enjoy judicial
func ons by exercising the power to pardon, reprieve, respite, etc., respec vely.
o The judiciary performs execu ve func ons by reviewing the ac ons of the execu ve and
can declare them void if they are found to be against the spirit of the Cons tu on.
o The judges of the Supreme court and High courts are appointed by the President, i.e., by
the Execu ve.
What is the Rela onship of Checks and Balances between the Execu ve and Legislature?
o The execu ve is not separated from the legislature. The Execu ve is collec vely
responsible to the Legislature.
o The legislature controls the execu ve through the mo on of no-confidence. The
execu ve/council of ministers is dismissed if it loses the legislature’s confidence before
its tenure is over.
Func onal Overlapping of Power Among Organs Of the Government :
Overlapping Powers of Legislature and Judiciary

Overlapping Powers of Overlapping Powers of

Legislature with Execu ve Judiciary with Execu ve

For the Impeachment of Ordinance Making Power To bring about the

Judges of High Court and i.e President has same complete jus ce
Supreme Court, an address by power as parliament Supreme Court can
Parliament need to be passed. regarding acts. func ons as an Execu ve
in order (Ar cle 142)

Power of Courts to review Heads of Ministries are Quasi-Judicial bodies,

execu ve ac ons to part of the Legislature(MP tribunals etc. are part of
determine that it does not from either Rajya sabha or the execu ve and
violate the Cons tu on i.e Loksabha) discharge Judicial
Judicial Review func ons.

Legislature can revalidate the Parliament has the Power Under ar cle 72 , Power
laws which are declared to assess the works of the of President to Pardon,
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invalid by the Judiciary. Eg . execu ve during sessions reprieve, respite or
Amendment in SC/ST Act of Parliament. remission of any person
convicted.
Challenges and issues concerned with the Separa on of Powers in India :
Judicial Ac vism :
o The phrase judicial ac vism has been coined by the American historian Arthur M.
Schlesinger, Jr.
o It is an approach to the exercise of judicial review of a par cular judicial decision, in
which a judge is generally considered more willing to decide cons tu onal issues and
invalidate legisla ve or execu ve ac ons.
o Judicial Ac vism transgresses the sphere of legislature and execu ve.
Judicial Overreach :
o The situa on of Judicial overreach occurs when a court acts beyond its jurisdic onary
powers and encroaches in a domain which falls within the execu ve and/or the
legislature’s mandate.
o Eg. Ban on firecrackers during diwali ci ng the issue of rising pollu on and safeguarding
the environment
o It creates a conflict between the legisla ve and the judicial system.
Confusion and Deadlock : It has been observed that Separa on of powers some mes leads to
suspicion and fric on among the three arms of government.
Excessive centralisa on of power: It is o en alleged that the execu ve in India exercises
excessive centralisa on of power which can alter the basic structure of Federalism in India.
A empt mul ple-choice ques ons on Indian Polity here!
Quotes related to the Doctrine of Separa on of Power :
“Governments without separa on of powers commit the worst crimes.” ~ James Cook
“No country can be called free which is governed by an absolute power; and it ma ers not
whether it be an absolute royal power or an absolute legisla ve power, as the consequences
will be the same to the people.” ~ Thomas Paine

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 ADMINISTRATIVE ACTION, ITS CLASSIFICATION (QUASI LEGISLATIVE, QUASI JUDICIAL AND
ADMINISTRATIVE) ADMINISTRATIVE DISCRETION – MEANING AND ACTION – ABUSE OF
DISCRETION
MEANING OF ADMINISTRATIVE ACTION
 Administra ve law governs the responsibili es and du es of the administra ve
authority, and administra ve acts are those that fall under this category.
 Legal ac ons on public administra ve bodies are referred to as administra ve ac ons.
 By implemen ng administra ve ac on the public is safeguarded and social order is
upheld. It is an ac vity that is neither judicial nor legisla ve.
 Administra ve decisions should adhere to fundamental fairness standards, as they are
subject to judicial scru ny if they do not.
 Administra ve ac on is the residuary ac on.
 Administra ve ac on is the ac on which is neither legisla ve nor judicial in nature but
only concerned with the treatment of a par cular situa on.
 Administra ve ac ons are those legal ac on which are related to the public administra ve
body.
 It does not decide a right though it may affect a right.
 These actions protect the public and maintain law and order in the society.
 While exercising administrative powers, principles of natural justice must always follow
but depending on the situation of each case.
 These action forces an authority to do or not to do a thing.
 It has no procedure of collec ng evidence and weighing arguments.
 It does not decide a right or wrong , neither it ignores the principles of natural jus ce
completely.
 Administra ve ac on may be statutory, having the force of law, or non statutory, devoid
of such legal force.
 The bulk of the administra ve ac on is statutory because a statute or the Cons tu on
gives it a legal force but in some cases it may be non-statutory, such as issuing direc ons
to subordinates not having the force of law, but its viola on may be visited with
disciplinary ac on.
 By and large administra ve ac on is discre onary and is based on subjec ve sa sfac on,
however, the administra ve authority must act fairly, impar ally and reasonable.
A.K. Kraipak v. Union of India,
the Court was of the view that in order to determine whether the action of the administrative
authority is quasi-judicial or administrative, one has to see the nature of power conferred, to
whom power is given, the framework within which power is conferred and the consequences

Classification:
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1. Quasi-legislative( rule making action )
 When the administrative body exercises the power of law making which has been
delegated to it, it is called as rule making action or quasi-legislative action.
 It is
 commonly known as delegated legislation.
 This Rule-making action of the administration has all the characteristics, which a normal
legislative action possesses.
 Such characteristics may be generality, prospectivity and a behaviour
 The actions are based on policy consideration
 It gives a right or a disability.
 These characteristics are with exception.
 In some cases, administrative rule-making action may be particularised, retroactive and
based on evidence.
 For example – Civil Servant Efficiency rules 1973, Conduct Rules etc.

2. Quasi-judicial (rule decision action)

 Since administrative decision-making is a by-product of the in Governments intention,

the traditional judicial system cannot give to the people that quantity of justice, which is
required in a welfare State.
 It is a power to perform acts administrative in character, but requiring incidentally some
characteristics of judicial traditions.
 When an act which is administrative in nature has been performed by using the
administrative decision making power but that work involves the judicial characteristics
 For example – Disciplinary actions against the students or Disciplinary proceedings
against an employee for misconduct etc.

3. Fully administrative action (rule application action)

This involves the application of a rule which has been made by legislative to a case.
For example – Transfer of a Civil Servant, Appointment of inquiry officer.

4. Simply Administra ve Ac on
Administra ve ac ons are decisions made by administra ve authori es in the course of their
du es. These ac ons encompass a wide range of ac vi es beyond legisla ve and quasi-judicial
ac ons. Administra ve authori es have discre on in handling ma ers. These ac ons can be
either objec ve or subjec ve. Objec ve decisions follow predetermined criteria, while
subjec ve decisions involve personal judgment without predefined standards. In
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administra ve ac on, administra ve authori es have the freedom to use their own judgment
and discre on when handling ma ers.
For example, a government official approving a building permit based on established
regula ons, or a teacher assigning grades to students according to set criteria.
5. Ministerial Ac on/Purely Administra ve Ac on
Ministerial or purely administra ve ac ons are rou ne tasks performed according to specific
guidelines, leaving no room for individual discre on. These ac ons are like following a step-by-
step instruc on manual; there's only one correct way to carry them out. They do not involve
any decision-making or judgment calls by the authority. Instead, they focus solely on execu ng
predetermined procedures accurately and efficiently.
For example, if a law says a school must be open by 9 AM, the school has to follow that rule
without any choice or discre on.

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ADMINISTRATIVE DISCRETION – MEANING AND ACTION – ABUSE OF DISCRETION
 Parliament by itself cannot legislate on each and every facet of certain ma ers.
 Also the Parliament cannot directly entrust the power to the execu ve to enforce
legisla ve power.
 To fill in these gaps delega on of authority and power became a necessity.
 The execu ve is given authority by the statute to use this discre on and act accordingly.
 An extensive power is given to the execu ve to choose a path of opera on from
numerous possible courses of ac on and select the best depending upon the situa on.
 Power of discre on ensures that the administra ve authority has sufficient
independence and liberty in carrying out its ac vi es.
 However, to regulate the power and to ensure that this discre on is not misused, the
law has established scru ny to make certain that this discre onary power is exercised
according to the guidelines of the statute....
Abuse of discre on
 Abuse of power is one of the classic concepts in administra ve law.
 Power of discre on given to the administra ve authority ensures that they get adequate
independence and liberty in carrying out their ac vi es.
 However, this discre on is o en misused.
 This concept is based on the assump on that: Inspite of Competent norms, procedures ,
legal grounds for ac on, the objec ve for which the discre onary powers were
granted the scope of discre on of public administra on bodies is defined.
 Government may not be able to func on properly without the exercise of some
discre on by the officials.
 It is impossible to lay down the rules for every plausible aspect.
 This has led to conflicts as to whether there should be absolute discre on of
administra ve authori es or whether it should be subject to reasonable control.
 Giving discre onary power to the administra ve authority is not wrong however, people
o en misuse it....
Some of the abuses of administra ve discre on are as follows:...
1. Mala fides
 Mala fide is a broad term and means something done with bad intent, corrupt
mo ve, or not in good faith.
 An administra ve ac on must be without mala fides.
 The burden of proof lies on the person who alleges mala fides.

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  Malice is of two kinds i.e. malice in law and malice in fact.
 Malice in fact includes personal ill will, corrupt mo ve, spite, vengeance, and
personal benefit to the authority itself.
 Rowjee v State of Andhra Pradesh,
The Chief Minister undertook a proposal of the State Government to na onalize
certain bus routes. The Supreme Court quashed the Chief Minister’s decision. The
court found that the Chief Minister had mala fide because the decision was
mo vated by the Chief Minister sense of vengeance against his poli cal opponent.
2. Improper purpose
 A statute confers discre onary powers upon an administra ve authority for one
purpose and if it is used for some purpose other than the one that was decided, it
will not be regarded as a valid exercise of the powers and the same may be rescinded
by declaring it as ultra vires.
 Where the power is exercised for a purpose different from that specified in the
statute, the court will declare the exercise of the power as ultra vires.
 “Improper purpose” is broader than mala fides.
 The ac on of an authority may be mo vated by some public interest (as
dis nguished from private interest), but it may be different from what is
contemplated by the statute under which the ac on has been taken.
 Here it is not so much relevant to assess whether the authority is ac ng in good faith
or bad faith. What is relevant is to assess whether the purpose in view is one
sanc oned by the statute which confers power on the authority concerned.
 The courts can check the primal target of the statute in endowing the discre onary
power.
 The ra onale behind an administra ve ac on should be in conforma on with the
legal objec ve.
 The principles of good faith or bad faith stand irrelevant.
 S.R. Venkataraman v. Union of India.
The appellant, was a Central Government officer. She was compulsorily re red from
service in “public interest”. Her conten on was that there was non-applica on of
mind by the Government as they did not take into considera on her service record
and that her re rement was based on extraneous circumstances, outside the extent
of the Act. The Supreme Court revoked the order of the Government and held that in
a case where discre onary power is exercised for an unauthorised purpose.
3. Irrelevant or relevant considera ons

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  Discre onary power allows an authority to choose from alterna ve ac ons and select
the most appropriate one.
 However, this discre onary power should always be exercised on relevant grounds
and not on extraneous grounds, it should not be influenced by considera ons that
cannot be lawfully.
 All discre onary work must be in conformance to the considera ons men oned in
the parent statute.
 If no such considera ons are laid down in the statute, then power is to be exercised
on the basis of the considera ons relevant to the purpose for which the statute was
conferred.
 If the authority uses this power for irrelevant cases, then the administra ve ac on
would be considered ultra vires and will be quashed.
 To determine whether the considera ons are relevant or irrelevant, one has to infer
from the general terms of the statute.
4. Leaving out relevant considera ons
 While exercising its discre onary power if an administra ve authority turns a blind
eye to relevant considera ons, its acts will be considered null and void.
 An authority should always take heed of the considera ons which law lays down
expressly or impliedly.
 In case the law does not lay down any considera ons but grants power in a general
way, the court might imply some appropriate considera ons for the exercise of the
power and rescind a direc ve since the officials concerned did not take these into
account.
 In Ranjit Singh v. Union of India[11], the allo ed quota for produc on of guns by a
licensed manufacturer was lowered from 30 to 10 guns per month. This order was
challenged on the ground that the decree was not based on relevant considera ons
but on immaterial considera on. It was held by the Court that the order was out of
place as the Government had not taken into account material considera ons like the
quality of guns produced, economic viability of the unit, capacity of the factory, etc.
in making the order. It was observed by the Court that any curtailment of quota
should be based on reason and relevance. If all the material factors are not
considered, the decision is corrupt.
5. Colourable exercise of power
 The courts o en use the idiom “colourable exercise of power” to denounce an abuse
of discre on.

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  Colourable exercise signify that under the “appearance” of power accorded for one
objec ve, the authority is trying to achieve something else which it is not permi ed
to do under the statute.
 Such acts of the authority shall be null and unlawful.
 In Somawan v. State of Punjab,[12] the Supreme Court in rela on to acquisi on of
land under the Land Acquisi on Act[13] expressed as follows: Now whether in a
par cular case the purpose for which land is needed is a public purpose or not is for
the State Government to be sa sfied about subject to one excep on.
 The excep on is that if there is a colourable exercise of power the declara on will be
open to challenge at the instance of the aggrieved party.
 If it appears that what the Government is sa sfied about is not a public but a private
purpose or no purpose at all ac on on the Government would be colourable as not
being relatable to the power conferred upon it by the Act and its declara on will be a
nullity.
 The above extract would show that the term “colourable exercise of power” is used
in the sense that the exercise of power is unlawful, but it has been given the illusion
of legi macy.
6. Unreasonableness
 The law requires the authority to act fairly and ra onally. The term
“unreasonableness” does not provide a separate ground of judicial control other
than the grounds already men oned.
 The term also comprises those cases where either the authority has acted in
accordance with law but in the wrong manner or in accordance with law and in the
right manner but on the wrong grounds.
 The courts usually do not exercise such extensive power to interfere in the exercise of
administra ve discre on. However, the courts do interfere with the order where it
has been passed irra onally.
7. Propor onality
 The rule of propor onality is one such major rule which make sure that there is a
connec on between the goal that must be achieved, and the method undertaken to
enable so.
 Union of India v. Ranjit Thakur.
In this case Signalman Ranjit Thakur did not adhere to the lawful order of his senior
officer by refusing to eat food offered to him. As a result of this court-mar al
proceedings were ins tuted and sentence of rigorous imprisonment of one year was

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 levied on him. Also, he was expelled from service, with the addi onal disqualifica on
that he would be incompetent for future employment. The said direc on was called
into ques on on the ground that the penalty was flagrantly inordinate. The Supreme
Court implemented the doctrine of propor onality while revoking the punishment of
expulsion from employment and sentence of incarcera on awarded by the court
mar al under the Army Act[15].
Conclusion
 With more and more discre on being given to the administra ve authori es to take
ac on without interven on from other bodies has led to increased independence of
the authori es to choose between the different approaches and select the best
alterna ve.
 However, to keep a check on this wide freedom, the courts in India have developed
various controls over discre onary ac on which ensures that this power is exercised
within the limits prescribed by law, is just and fair, and is based on per nent grounds
and good faith.
 From the above cases we see that the abuse of administra ve discre on takes place
in a number of forms.

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