JUDICIAL REVIEW OF ADMINISTRATIVE DISCREATION

As we all know the Governmental functions are mainly divided into 3 categories,
namely Legislature, Judiciary and Executive. The 1st 2 categories generally do not
encroach upon the 3rd category. The Administrative law has developed only in the
20th Century, before that there was only police state. Due to reasons like
establishment of democratic countries, Industrialization, Increased population and
increased literacy demand for demand for welfare and social state increased and
there was need of Administrative Law.
Administrators have the power of decision making by making law and innumerable
rules under this. The law prescribes the procedures to be followed and guidelines to
be respected in the exercise of discretion involving decision making. However due
to the complexity of modern socio-economic conditions, the discretionary powers
of the administrative authorities have increased enormously. The primary function
of executive are execution of laws, evolving and implementing government
policies, providing public health, safety and morality and standards of life in the
nation. For the performance of these vast and large functions and for the best
administration and to obtain the required goal they need powers. Such powers are
delegated by parliament to administer. Therefore gradually vast powers are vested
and accumulated in the hands of executive. It has become necessary to empower
them with wide discretionary powers for the speedy and efficient administration.
"Every rose has thorns", similarly these vast wide discretionary powers, which are
vested in executive may be used for the public welfare and may be used for selfish
needs of the executive. The powers are like that of a knife having edges on the two
sides.
ADMINISTRATIVE DISCRETION
The dictionary meaning of discretion is "making a free choice or freedom of act".
But the meaning of Administrative discretion differs a little from the former one.
Administrative discretion means to give a decision on a matter with various
alternative available, but the judgment should be with reference to rules of reason
and justice. The administrative discretion should not be based on personal notions
and fancies. Article 14 of the Constitution of India provides for the clause of
equality before law and with this it protects the citizens from unreasonableness,
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unjust and arbitrary action of government. When we speak of administrative

discretion, we meant that a discrimination may be reached upon the basis of
consideration not entirely subject of proof or disproof. It may be practically
suitable to say that discretion includes the case in which the ascertainment of fact
is legitimately left to administrative determination. Dicey says "whenever there is
discretion, there is room for arbitrariness and that in a republic no less than under a
dominion discretionary authority on the part of the government must mean
insecurity for legal freedom on the part of its subject"

TYPES OF ADMINISTRATIVE DISCREATION

There are mainly 5 types of administrative discretion. Those are
1. Individual decisions where the authority makes individualizing decisions by
applying general rule.
2. Executive decisions where the agency has the freedom to fill gaps in delegate
authority in order to execute assigned administrative functions.
3. Policymaking decisions, in this type of discretion the agency has the power to
take action for further social goals.
4. Unbridled Discretion takes place if no review is permitted, then the agency can
exercise this discretion.
5. Numinous Discretion is where the decision cannot by its very nature is
reviewed, the agency is said to be exercising this discretion.
DISCRETIONARY POWER AND JUDICIAL REVIEW
It is general rule that court should not interfere with the administrative functions
and actions taken by administrative authorities in exercise of discretionary power.
But where the legislature has confided the power to a particular body, with a
discretion how it is to be used, it is beyond the power of any court to contest the
discretion. This does not mean that the administrative authorities should possess
unregulated and vast discretionary powers. If they are left with vast discretion

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powers, it leads to mal-administration, corruption, suppression and atrocities over

the poor people. Too much discretion causes too much abuse of powers.
In the case Maharastra state Board of secondary and Higher secondary education
and others Vs Paritosh Bhupesh Kumar, the Supreme Court observed that any
drawbacks in the policy incorporated in a rule or regulation will not render it ultra
vires and the court cannot strike it down on the ground that, in its opinion, it is not
a wise or prudent policy, but is even a foolish one and that will not really serve to
effectuate the purpose of the act. The constitutionality of the regulations has to be
adjudicated only by a three-fold test, i.e.
1. Whether the provisions of such regulations fall within the scope and ambit of the
power conferred by the statute on the delegate,
2. Whether the rules/regulations framed by the delegate are to any extent
inconsistent with the provisions of the parent enactment,
3. Whether they infringes any of the fundamental rights or other restrictions or
limitations imposed by the constitutions.
TYPES OF JUDICIAL REVIEW OVER ADMINISTRATIVE
DISCREATION
There are different valid and reasonable grounds on which the courts can interfere
with the administrative discretions. Those are
1. Failure to exercise discretion
2. Excess or abuse of discretion
3. Violation of Fundamental Rights
FAILURE TO EXERCISE DISCREATION
The parent Act confers certain powers on the administrative authority. such
authority should exercise such powers within the limits and bounds mentioned in
the parent acts. If he fails to exercise discretionary powers, then the courts can
interfere. Generally there are 4 circumstances in which failure to exercise
discretion arises.
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A. SUB-DELEGATION- "delegatus non potest delegars"- A delegate cannot

delegate. a person to whom powers have been delegated cannot delegate them to
another.
B. IMPOSING FETTERS ON DISCREATION BY SELF IMPOSED RULES
OF POLICY - The authority has discretion on certain general policy. But he
imposes fetters on policy to be applied by it rigidly to all cases coming before him
for decision.
C. ACTING UNDER DICTATION- The parent Act delegated certain powers
upon certain administrative authority. He himself should perform such actions. If
he seeks the instruction from any other person or from superior officer it becomes
bad in Law. It is known as acting under dictation.
D. NON-APPLICATION OF MIND- Where the discretionary powers are vested
in the executive, he must handle with highest care, diligence, caution and
responsibility. He should not act with mere mechanically. He should apply with his
own mind according to the circumstances. If he performs without due care and non
application of mind, then he comes under failure to exercise of discretionary
power. It is bad in law.
EXCESS OR ABUSE OF DISCREATION
The duty of legislature is to legislate the statutes for the country. The duty of
executive is to implement them. For the proper implementation, the parent Acts
permits the executives to use discretionary powers to certain extent. But such
discretionary powers should not be used in excess than necessary and also should
not be abused.
The parent Act confers certain powers on the administrative authority. Such
authority should exercise such powers within the limits and bounds mentioned in
the parent Act. if he exceeds it or abuse such powers, then the court can interfere.
There are 9 circumstances in which excess or abuse of discretion occurs. In fact all
these circumstances overlap with each other to a very great extent and run into one
another.

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A. EXCEEDING JURISDICTIONS - The administrative authority must act and

use the delegate powers properly according to the limits imposed by the parent
Acts.
B. IRRELEVANT CONSIDERATION- An administrative authority must use his
discretionary power according to the relevant consideration and not an irrelevant or
extraneous consideration. It means that power must be exercised taking into
account the considerations mentioned in the statutes.
C. LEAVING OUT RELEVANT CONSIDERATION - Where the administrative
authority fails to take into relevant considerations, then it becomes abuse of
discretions.
D. MIXED CONSIDERATIONS- Sometimes the administrative actions consists
mixed consideration in particular circumstances. Mixed consideration means it
possess partly irrelevant considerations and partly relevant considerations. Under
such circumstances, the court have to weight, depending upon each circumstances
of each case.
E. MALAFIDE- Where the administrative officer uses his discretionary power to
harass his opponents and enemies, such actions are malafide and are void.
6. IMPROPER PURPOSE- The administrative authority must use its
discretionary powers for that particular purpose only. It should not use them in any
other manner and for any other improper purpose.
F. COLOURABLE EXERCISE OF POWER- It means that under a guise of
power conferred for one purpose, the authority is seeking to achieve something
else which is not authorized to do under the law in question.
G. UNREASONABLENESS- The administrative authority must use its
discretionary power with utmost reasonableness. If it acts without reasonableness,
the court can set aside its order and action.
H. VIOLATION OF PRINCIPLE OF NATURAL JUSTICE- In case of
violation of natural justice that is the resource of law in giving a discretionary
judgment over an administrative matter, the Court has the power to go for a review
of that administrative process.
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VIOLATION OF FUNDAMENTAL RIGHTSThe constitution of India conferred most important rights on citizens which are
called "Fundamental rights". The fundamental rights can be enforceable by any
court against the state. They are given a pride of place by the constitution. The
chapter of fundamental rights is revered and not liable to the abridge by legislative
or executive act or orders, except to the extent provided in the appropriate Articles
in Part III. These are negative in character. The states, including administrative
authorities are asked not to violate these fundamental rights. If any executive takes
an administrative action which is violation of fundamental rights, such
administrative action shall be held ultra vires. The court give utmost importance to
safeguard the fundamental rights.
There are 2 stages where a court can check for arbitrariness of discrimination
action of the administrators. Those are
A. AT THE STAGE OF DELEGATION OF DISCRETION The court has the power to control the delegation of discretionary power of the
administrations, where the powers has been delegated with reference to
fundamental rights stated under constitution of India. If the parent statute itself is
ultra vires the constitution, then the conferred discretionary power upon the
administration is not valid. Every law in India should be based on the criterion of
Article 19 and 14 of the Indian Constitution. If the law is vague and has wide
discretionary power, then it may declared ultra vires.
B. CONTROL AT THE STAGE OF EXERCISE OF DISCREATION
The court has the power to control the arbitrary discretion of administrative
agencies, which is based on the following formulations.
1. The authority should not have exercised its discretion at all.
2. The authority should have exercised the discretion in improper way.
So, the discriminatory action of administrations can also be checked at the judicial
level. The constitution of India has conferred the power to review to the judiciary.
The court itself can carry on a check on the arbitrariness exercise of the
discretionary power of the administrators. The Court can take a suo moto cases to
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control the power of the administrators. So, to exercise the administrative

discretion it should be applied with proper care and attention and that should be in
god faith. The discretion should not be in violation of any fundamental rights that
are guaranteed to the public. Moreover the administrative action should be just and
reasonable and that should not be against public policy.

CONCLUSION
The importance of discretion has amplified day by day as the administration is
requisite to apply unclear and indefinite statutory provisions, to individual case.
Further, It is very difficult to understand the present day issues within the general
rules of a broad nature. Many problems are new and beyond the range and
experience of the administrator to be solved easily. Sometimes there is lack of
specific rules and statutory provisions. Even then the administrator is expected to
solve them in a rational manner, as any sensible man exercises his power in that
similar case.
But the fact to fact approach is detrimental, as the administrator may not have a
general rule or norm to be adopted. There is every danger of discrimination leading
to abuse of power. Further it is a time overwhelming process to select the best
lessons of action in each individual case. The official tries to defer any decision
making if the case involves vested interests, so as to avoid any public controversy,
his decision is likely to be in front. But it is a fact, that the administrative discretion
individualize the exercise of public command, over private interests, permitting its
adjustments to varying circumstances. The modern tendency is to somewhat
standardize administrative discretion leaving only a residual margin for
adjustability, in the area of fact situations, in exacting case.
There are certain principles governing the exercise of discretionary power. The
authority in which a discretion is vested can be compelled to exercise that
discretion, but not to exercise in any meticulous manner. In general, a discretion
must be exercised only by the authority to which it is committed. That authority
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must genuinely address itself to the matter before it. It must not act under the
dictation of another body or disable itself from exercising a discretion in each
individual case. In the purported exercise of its discretion, it must not do what it
has been forbidden to do, nor must it do what it has not been authorized to do. It
must act in good faith, must have regard to all relevant considerations and must not
be influenced away by immaterial consideration, must not ask for purposes, alien
to the letter and spirit of the legislation that gives it power to act, and must not act
illogically and randomly.

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