Judicial Review of Administrative

Discretion
Introduction
● In the modern days, the old 'police Stale' has now become a 'welfare State’.
Thus the governmental functions have increased.
● The administrative authorities have acquired vast discretionary powers and
generally, exercise of those powers are left to the subjective satisfaction of the
administration without laying down the statutory guidelines or imposing
conditions on it.
Administrative Discretion - Meaning
● Administrative discretion basically means to flexible exercise its judgment and decision-making power invested in
any public administrators.
● The definition of 'administrative discretion' is given by Professor Freund' in the following words:

'When we speak of administrative discretion, we mean that a determination may be reached, in part at least,
upon the basis of consideration not entirely susceptible of proof or disproof.... It may be practically convenient to say
that discretion includes the case in which the ascertainment of fact is legitimately left to administrative determination.”

● The decision is taken by the authority not only on the basis of the evidence but in accordance with policy or
expediency and in exercise of discretionary powers conferred on that authority.
● Discretion implies power to make a choice between an alternative course of action or inaction. Where the Legislature
confers discretion on a court of law or on an administrative authority, It also imposes responsibility that such a
discretion is exercised honestly, properly and reasonably.
Judicial review - Meaning

Judicial review is a procedure by which a court can pronounce on an administrative

action by a public body.

Judiciary may be defined as a court's power to review the actions of other branches
of government, especially the court's power, to invalidate legislative and executive
actions as being unconstitutional. - Black’s Law Dictionary

In India 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.
Judicial Review - Object
The underlying object of judicial review is to ensure that the authority does not
abuse its power and the individual receives just and fair treatment and not to ensure
that the authority reaches a conclusion which is correct in the eye of law.'- Chief
Constable of the North Wales Police v. Evans (1982) I WLR 1155
Judicial Review - Nature and scope
● As held in the case of Indira Nehru Gandhi v. Raj Narain (1975),Judicial review is the
basic feature of the Indian Constitution and therefore, cannot be abrogated even by an
amendment of the Constitution.
● Judicial review is the touchstone of the Constitution and essence of Rule of Law.
● It is incorporated in Articles 226 and 227 of the Constitution insofar as the High
Courts are concerned.
● In regard to the Supreme Court Articles 32 and 136 of the Constitution embody the
principle of judicial review. Article 32 is included in Part III as a fundamental right
for enforcement of any of the fundamental rights conferred under Part III.
● In Judicial Review, the court is not concerned with the merits or correctness of the
decision, but with the manner in which the decision is taken or order is made. The
court can examine whether the decision making process was reasonable, rational, not
arbitrary or not violative of article 14 of the constitution.
Discretionary power and Judicial Review
Discretionary powers conferred on the administration are of different types. They
may range from simple ministerial functions like maintenance of births and deaths
register to powers which seriously affect the rights of an individual, e.g. acquisition
of property, regulation of trade, seizure, confiscation and destruction of property
The Supreme Court has held that the courts have no power to interfere with the
orders passed by the administrative authorities in exercise of discretionary powers. -
Ak Gopalan vs State of Madras AIR 1950 SC 27.
However, this doesn't mean that there is no control over the discretion of the
administration.The basic rule is that the governing power, wherever located, must be
subjected to the fundamental constitutional limitations.
Grounds
While exercising power of judicial review, the Court does not exercise appellate powers. It is not intended to take away from
administrative authorities the powers and discretion properly vested in them by law and to substitute courts as the bodies making the
decisions. Judicial review is a protection and not a weapon.

The duty of the court is to confine itself to the question of legality. Its concern should be whether

1. a decision making authority exceeds its power

2. committed an error of law,
3. committed a breach of the rules of natural justice
4. reached a decision which no reasonable tribunal would have reached, or
5. abuse its power. - Tata Cellular vs Union of India, 1994 6 scc 651

The power of judicial review is supervisory in nature, unless the above restriction is observed, the court under the guise of preventing
abuse of power by the administrative authority, by itself, will be guilty of asserting power

In India, the courts will interfere with the discretionary powers exercised by the administration in the following circumstances:

(1) Failure to exercise discretion; or

(2) Excess or abuse of discretion.

Failure to exercise discretion
The main object of conferring discretionary power on an administrative authority is
that the authority itself must exercise the said power. If there is failure to exercise
discretion on the part of that authority the action will be bad. Such type of flaw may
arise in the following circumstances:
(a) Sub-delegation
(b) Imposing fetters on discretion by self-imposed rules of policy;
(c) Acting under dictation;
(d) Non-application of mind
(e) Power coupled with duty
Sub Delegation
The very object of conferring a power on a particular administrative authority is that the power must he exercised by
that authority and cannot be sub delegated to any other authority or official.

Proper test whether sub delegation is legal or not is to decide whether the final decision rest with the authority on whom
power is conferred by the act. If such decision is taken by that authority, the decision is valid. If the decision is taken by
any other authority, it would be invalid and unlawful.

Thus, in Allingham v. Minister of Agriculture and fisheries (1948 I All ER 780 (DC) Ganpati Singhji v. State of Ajmer
( AIR 1955 SC 188) - the sub-delegation of power was held to he bad

Likewise, in Sahni Silk Mills v. ESI Corpn. ( 1994 5 SCC 346), the parent Act enabled the corporation to delegate its
power to recover damages to the Director General, who, however, in turn sub delegated the said power to
Regional-Directors. Since there was no such provision permitting the Director General to sub delegate his power the
action was held to be bad.
Imposing Fetters on Discretion
An authority entrusted with discretionary power must exercise the same after
considering individual cases. Instead of doing that, if the authority imposes fetters
on its discretion by adopting fixed rules of policy to be applied in all cases, there is a
failure to exercise discretion on the part of that authority.
In Keshavan Bhaskaran v. State of Kerala (AIR 1961 Ker 23), the relevant rule
provided that no school-leaving certificate would be granted to any person unless he
had completed fifteen years of age. The Director was, however, empowered to grant
exemption from this rule in deserving cases. But the Director had made an invariable
rule of not granting exemption unless the deficiency in age was less than two years.
The court held that the rule of policy was contrary to law.
In TGN Kumar vs State of Kerala. (2011 2 SCC 772), the Kerala High Court
issued a general direction to all subordinate codes to grant exemption from personal
appearance to accused under section 138 of the Negotiable Instruments Act, 1881.
Holding that the discretion to grant exemption under section 205 of CrPC, 1973 is
with the magistrate, The Supreme Court set aside the order of the high court.
Acting under Dictation
Sometimes, an authority entrusted with a power does not exercise that power but acts
under the dictation of a superior authority. Here, the authority invested with the power
purports to act on its own but ‘in substance’ the power is exercised by another. In law, this
amounts to non-exercise of power by the authority and the action is bad. If the authority
“hands over its discretion to another body it acts ultra vires”.
It is open to such authority to take into account and advice or assistance from other
authority. But the final decisions must be of the competent authority.
In Commissioner of police vs Gordhandas Bhanji (AIR 1952 SC 16) under the City of
Bombay Police Act, 1902,The commissioner of Police granted licence for the construction
of a cinema theatre. But later on, he cancelled the licence at the direction of the state
government. The Supreme Court set aside the order of cancellation of licence as the
commissioner had acted nearly as an agent of the government.
Similarly, in Orient Paper Mills Ltd vs Union of India,(1995 5 SCC 302). under the
relevant statute, the Deputy Superintendent was empowered to levy excise. Instead
of deciding it independently, the deputy superintendent ordered levy of excise in
accordance with the directions issued by the collector. The Supreme Court set aside
the order passed by the deputy superintendent
Non-application of mind
When a discretionary power is conferred on an authority, the said authority must exercise that
power after applying its mind to the facts and circumstances of the case in hand. If this condition is
not satisfied, there is clear non-application of mind on the part of the authority concerned.

The authority might be acting mechanically, without due care and caution or without a sense of
responsibility in the exercise of its discretion. Here also, there is failure to exercise discretion and
the action is bad.

Thus, in Emperor V Sibnath Banerjee, ( AIR 1945 PC 156) an order of preventive detention was
quashed as it had been issued in a routine manner on the recommendation of police authorities and
the Home Secretary himself had not applied his mind and satisfied himself that the impugned order
was called for or not
In the case of Barium Chemical Limited,( AIR 1967 SC 295) an order of
investigation against the petitioner company was passed by the Central government.
under the Companies Act 1956, the government was empowered to issue such order
if “there are circumstances suggesting fraud on part of the management”. It was
held by the Supreme Court that it was necessary for the central government to state
the circumstances which led to the impugned action, so that the same could be
examined by the court.
Power coupled with duty
Several statutes confer powerson administrative authorities and officers to be
exercised by them in their discretion.
The power is in permissible languages such as “it may be lawful”, “it shall be
lawful,” “it may be permissible,” etc. The question is whether it is open to the
authorities to exercise or not to exercise the power at their sweet wills.
In Gordon Das,(AIR 1952 SC 16), the relevant rule granted absolute discretion to
the commissioner to cancel or suspend licence. It was argued that the commissioner
cannot be compelled to exercise the discretion, holding the power as coupled with
duty. The Supreme Court observed that the duty cannot be shirked or shelved, nor
can it be evaded
Excess or Abuse of Discretion
When discretionary power is conferred on an administrative authority, it must be
exercised according to law. But as Markose says, “When the mode of exercising a
valid power is improper or unreasonable, there is an abuse of the power.”
Excess or abuse of discretion may be inferred from the following circumstances:
● Acting without jurisdiction
● Exceeding jurisdiction
● Arbitrary action
● Irrelevant considerations
● Leaving out relevant considerations
● Mixed considerations
● Mala fide
Contn..
● Collateral purpose; Improper object
● Colourable exercise of power
● Colourable legislations: Fraud on Constitution
● Non-observance of natural justice
● Doctrine of proportionality
● Doctrine of legitimate expectation
● Unreasonableness
Acting without jurisdiction
It is well settled that there can be no exercise of power unless such power exists in
law. If the power does not exist, the proposed exercise of power would be void

But if such a power exists, mentioning of wrong provision, or even omission to

mention the provision containing such power will not invalidate such order. - Union
of India v. Tulsiram Patel (1985 3 SCC 398)

In Ahmedabad St. Xavier's College Society vs State of Gujarat. ( 1974 I SCC 717)
The Supreme Court ruled that the university had no power to compel a minority
Institute to adopt a particular medium of instruction in education.
Exceeding jurisdiction
An administrative authority must exercise the power within the limits of the statute
and if it exceeds those limits, the action will be held ultra vires.

Calcutta electric supply Corporation v. Workers Union (1959) - The authority is

empowered to award a claim for the medical aid of the employees. The authority
granted the said benefit to the family members of the employees. Held that the
authority exceeded his powers

J.K. Choudhuri v. R.K. Datta Gupta(1958):The relevant regulation empowers the

management to dismiss a teacher. However the management dismissed the principal.
Held that the management exceeded its powers.
Arbitrary action
If the action complained of is arbitrary, discriminatory, irrational, unreasonable, or
powers, it can be set aside in exercise of power of judicial review.

S. J. Singhani vs Union of India. AIR 1967 SC 1427 - The Supreme Court

observed that the absence of arbitrary power is the first essential rule of law upon
which our whole constitutional system is based

In Ranjith Thakur vs Union of India, 1987 4 SCC 611- conviction and sentence of
rigorous imprisonment of one year added with dismissal from service for disobeying
an order of a superior military officer to eat food was held grossly disproportionate
and arbitrary.
Irrelevant consideration
A power conferred on an administrative authority by a statute must be exercised on the considerations
relevant to the purpose for which it is conferred. Instead, if the authority takes into account wholly irrelevant
or extraneous considerations the exercise of power by the authority will be ultra vires and the action is bad.

This may, however, it can be distinguished from Malfide or improper motive as “the irrelevant consideration
dominate, not because of any deliberate choice of the authority. But as a result of the honest mistakes, it
makes about the object or scope of its powers”

In R.L Arora vs state of UP (AIR 1962 SC 764), under the provisions of the Land Acquisition Act, 1894 the
state government was authorised to acquire land for a company if the government was satisfied that “such
acquisition is needed for construction of a work, and that such work is likely to prove useful to the public.” In
this case, the land was acquired for a private company for construction of a factory for manufacturing textile
machinery. The Supreme Court by majority held that, even though it was a matter of subjective satisfaction
of the government, since this action was given by the government on irrelevant consideration, it was invalid
Leaving out relevant consideration
It is very difficult to prove that certain relevant factors have not been taken into
consideration by the authority, unless detailed reasons are given in the impugned order
itself from which it can be inferred. Still, however, sometimes the relevant consideration are
prescribed by the statute itself. Example, “Regard shall be had to”, “must have regard to”
“having regard to” etc. Here, the matter so specified must be taken into account.
In Rampur Distillery Co. Ltd versus Company Law board. 1969, The company law board
refused to give its approval for renewing the managing agency of the company. The reason
given by the board for not giving its approval was that Vivian Bose commission had
severely criticised, the dealings of the managing director, Mr Dalmia. The Supreme Court
decided that The past conduct of the directors were relevant consideration. But before
taking a final decision, it should take into account their present activities.
Mixed considerations
Here,The order is not wholly based on extraneous or irrelevant consideration. It is partly based on
relevant and existent consideration and partly on irrelevant or non existent consideration.

The courts are divided on their decisions in this case. In some cases it was held in the proceedings
were vitiated, while in other cases it was held at the proceedings were not held to be bad.

Thus the proper approach is to consider two different situations

● Conclusion based on subjective satisfaction and

● Conclusion based on objective facts.
Subjective most commonly means based on the personal perspective or preferences of a person—the subject who’s observing something.
In contrast, objective most commonly means not influenced by or based on a personal viewpoint - used to describe things like
observations, decisions, or reports that are based on an unbiased analysis.
Conclusion based on subjective satisfaction
if the matter requires purely subjective satisfaction. (For example, detention matters.) A strict view
is called for, And if the order of detention is based on relevant and irrelevant consideration, it has to
be quashed.
In Shibbanlal v. State of Uttar Pradesh,the petitioner was detained on two grounds: first, that his
activities were prejudicial to the maintenance of supplies essential to the community, and second,
that his activities were injurious to the maintenance of public order. Later the government revoked
his detention on the first ground as either it was unsubstantial or non-existent but continued it on
the second. The court quashed the original detention order.
This was held in the case law Dwarka Bas Bhatia vs State of Jammu and Kashmir(AIR 1957 SC
164). The rationale behind this judgement was that it was very difficult for the court to say as to
what extent the irrelevant grounds have operated on the minds of the detaining authority, and
whether it would have passed the same order, even without those irrelevant consideration
However this approach is not uniform as courts have upheld the order of detention
valid even where it was based on mixed considerations.
Sometimes the Legislature itself provides that, in spite of the mixed set
consideration of relevant as well as irrelevant grounds, an order of detention may be
treated as legal and valid. For example, section 5-A of the National Security Act,
1980 enacts that when an order of detention is made on two or more grounds, it
shall be deemed to have been made separately on each ground, and it will not be
deemed to be invalid or inoperative, merely because one or more provisions of the
ground is are nonexistent, vague or irrelevant. Such provisions are held to be
constitutional in the case of Attorney General for India versus Amratlal
PranjivanDas (1994 5 SCC 54)
Conclusion based on objective facts
if the conclusion based on the objective facts and the action is based on relevant and
irrelevant consideration, the court may apply the objective standard and decide the
validity or otherwise of the impugned action.
In State of Orissa vs Bidyabhushan Mahapatra AIR 1963 SC 779 was dismissed
from service on certain charges. The high court found that some of them were not
proved and therefore directed the government to consider the case, whether on basis
of the remaining charges, thus punishment of dispensal was called for on appeal. The
Supreme Court reversed the judgement of the high court and upheld the order of
dismissal. According to Supreme Court, if the order could be supported on any of the
grounds, it was not for the court to consider whether on that ground alone, the
punishment of dismissal can be sustained.
Mala Fide
If the power is not exercised bona fide( Authority must be exercised reasonably and lawfully), the exercise of power is
bad and the action illegal.

Though precise and scientific definition of the expression “mala fide” is not possible, it means ill will, dishonest intention
or corrupt motive.

In Rowjee v. State of A.P., the State Road Transport Corporation had framed a scheme for nationalization of certain
transport routes. This was done as per the directions of the then Chief Minister. Evidence was adduced by the petitioner
that particular routes were selected to take vengeance against the private transport operators of that area as they were
the political opponents of the Chief Minister. The Supreme Court upheld the contention and quashed the order.

E.P Royappa v. State of TN(1973), a member of IAS was appointed as the Chief Secretary to the government. The
Government shifted him to newly created temporary post of officer on Special Duty. the petitioner challenged the action
as Mala Fide and Malicious on part of the CM, Governor and Cabinet Ministers. However the SC dismissed the petition
holding that the allegations of Mala fide were baseless.
Whether a decision is mala fide or motivated by improper consideration - the first
relates to the manner or method of reaching the decision. And the others to the
circumstances in which the decision is taken and the consideration which have been
entered into in reaching that decision.

The burden of proving Mala fide is on the person making the allegations. There is
presumption in favour of the administration that it always exercises its power.
Bonafide and in good faith.
Collateral purpose or improper object
A statutory power conferred on the authority must be exercised for that purpose
unknown. And if it is exercised for a different purpose, there is abuse of power by
the authority and the action may be quashed.
Improper purpose must be distinguished from Mala fide Exercise of power. In the
later, personal ill will, malice or oblique motive is present. While in the former, it
may not be so. And the action of the authority may be bona fide and honest. Yet, if it
is not contemplated by the relevant statute, it may be set aside
In Nalini Mohan v. District Magistrate (1951), the relevant statute empowered the
authority to rehabilitate the persons displaced from Pakistan as a result of communal
violence. That power was exercised to accommodate a person who had come from
Pakistan on medical leave. The order was set aside.
Colorable exercise of power
Where a power is exercised by the authority ostensibly for the purpose for which it was conferred,
but in reality for some other purpose, it is called colourable exercise of power. Here, though the
statute does not empower the authority to exercise the power in a particular manner, the authority
exercises the power under the ‘colour’ or guise of legality.
In the leading American case of Nader v. Bork, by revoking a regulation, Cox, a Special Prosecutor
was relieved by the Attorney-General by abolishing that office. However, within few days, once
again, the regulation was reinforced. The court held the revocation illegal since “it was simply a
ruse to permit the discharge of Cox, purpose that could never be legally accomplished with the
original regulation in effect”.
In Vora v. State of Maharashtra, the State Government requisitioned the flat of the petitioner, but
in spite of repeated requests of the petitioner, it was not derequisitioned. Declaring the action bad
the court observed that though the act of requisition was of a transitory character, the Government
in substance wanted the flat for permanent use, which would be a ‘fraud upon the statute’.
Non observance of natural justice
• By now, it is well-settled law that even if the exercise of power is purely administrative in
nature, if it adversely affects any person, the principles of natural justice must be observed.
Violation of the principles of natural justice makes the exercise of power ultra vires and
void.
A.K.Kraipak v. Union of India (1969) •
In this case, Naquishbund, was a candidate for selection to the Indian Forest Service and
was also a member of the Selection Board. N did not sit on the Board when his own name
was considered. Name of N was recommended by the board and he was selected by the
Public Service Commission. The candidates who were not selected filed a writ petition for
quashing the selection of N on the ground that the principles of natural justice were
violated. The Court quashed the selection
J.Mohapatra v. State of Orissa (1984)

In this case, the State of Orissa constituted an Assessment Committee in order to

recommend and select books of various authors and publishers for various school
subjects. Some of the persons whose books were in the selection list were members
of the Assessment Committee. The meeting of the Committee was held. The result
was that the books of the members of the Assessment Committee were accorded
approval. The action of the Government was challenged on the ground of bias. The
Supreme Court quashed the action.
Various forms of abuse of discretion may overlap. Take the classic example of the
red-haired teacher, dismissed because she had red hair. In one sense, it is
unreasonable. In another sense, it is taking into account irrelevant or extraneous
considerations. It is improper exercise of power and might be described as being
done in bad faith or colourable exercise of power. In fact, all these things ‘overlap to
a very great extent’ and run into one another.