manupatra® Control of Abuse of Administrative Discretion: Judicial Trends Ravitej Rao. M* Introduction Discretion has been defined as the freedom or authority to make judge- ments and to actas one sees fit.’ i. e. to say, free exercise of power as regards the ability to choose from different ways to achieve a particular goal or result. Administrative discretion would mean choosing from various available alterna- tives but with reference to rules of reasons and justice and not according to personal whims.*Invariably, inall systemsofjurisprudence, itisan accepted norm that the Courts will not interfere with the action persued by such authorities in exercise of their administrative discretion. It cannot be expected of the Courts to have the timeand competence to judge each and every matter, letalone substitute it’s wisdom for that of the authority concerned. Again, this doesnot mean that the Courts will notinterfere at all. They will notallow discretionary power to assume the garb of arbitrary power. The Courts have toensure: that discretion is exercised strictly within the conditionalities laid down by the law while exercising such discretion. Today, the question of control of discretionary power is perhaps the most crucial and critical problem of modern administrative law’ Extent of Control All that the Courts seem to be willing to dois to go into the manner in which the discretion was exercised and not whether the decision arrived at was right or wrong, This isamply demonstrated in the decision of the Supreme Courtin Pratap Singh. State of Punjab wherein the Courtheld that itwill not bean appellate forum where the validity of the discretionary order will beallowed tobe questioned. This is because the power, jurisdiction and discretion is vested by law in the govern- ment. Perhaps the only area which the Court may consider is whether the authority has arrived at the decision based wholly on citcumstances extraneous to the purpose for which the discretion was vested. It is not for the Court to put * IV Year. B. A., LL.B (Hons.), NLSIU. See, William T. Mcleod, The New Collins Concise Dictionary of the English Language, 319 (1985). See, 1. P. Massey, Administrative Law, 62 (1985) See, M. P. Jain, Principles of Administrative Law, 330 (1993). A. 1. R. 1964 SC 72.ZA manupatra ° 171 itself in the place of the concerned authority and decide whether or not it would have come to the same decision as arrived at by the authority. All that it should do would be to see whether the power has been exceeded or acted upon in a manner unbecoming of the said discretion. The judicial power of interference with theexercise of administrative power on the ground of an authority acting contracy to law has been found to have enough flexibility to check abuse of discretion’ Usually, whenever a discretion is confeted on an administrative authority, guidelines are also issued for the exercise of that discretion. If the administrative authority exceeds that parameter, the act or decision could be held to be ultra vires not having the authority of law. This is because the authority cannot exceed the limitation set by the parent statute itself. Thus the Court has to see whether the decision was reached ina proper manner or not, if yes, the Court will not set aside the order of the authority. But, on the other hand, if the Court comes to the conclusion that there were some extraneous reasons for such an order, the Court may in it’s wisdom set aside or quash such order.$ The Court, in the exercise of it’s judicial review, is not concerned whatso- ever with the correctness of the findings of fact on the basis of which orders are made as longas those findings are reasonably supported by evidence, In Calcutta Electricity Supply Corporation v. Workers Union? where the authorities had the discretion to award a claim for the medical expenses of the employees, the Court held thatin doing so, itcould not grantaid to the families of the employees, as such a power was not mandated. The Courts seems to have taken the view that if there : is anything to show that an order can be upheld, it should be upheld if there is no other vitiating factor. Grounds of Abuse Where the discretionary poweris conferred on the administrative authority for one purpose, it cannot be exercised to achieve another purpose, and if done, it would be a clear abuse of that power. So though the intentions may be good, if it is outside the purported objective, it would be likely to be struck down. It is necessary to go into the motive for which the action was taken in particular manner.* Whenever a discretionary power is conferred, it must be exercised keeping in mind the relevant consideration for that purpose, i. e. to say factors which would have a direct bearing ona reasoned order, instead of considerations 5. Supran. dat 554. 6, Stateof Bombay. Krishnan, A.1.R, 1960 SC 1223, where it was held that where theauthority gives reasons for choosing a particular course of action, the court would not examine the propreity, : correctness, adequacy or satisfactory nature of such reasonsas longas the authority is satisfied. ‘ 7. ALR. 1959 SC 1191. 8 Alimedaba Manufacturing Company v. Municipal Corporation, A.LR. 1956 Bom. 117. Here the Court setaside the order of requisition which had been passed in reality to eject the petitioner because ‘of the religious leanings of the landlord, though the purported reason was to provide accomodation to an officer of the State.ZA manupatra ° 172 which arenot gone into, or irrelevant: In the latter cases the action will be patently ultravires which may nothave been the desired resulthad therelevantcriteria been considered. Consequently, even if no guidelines are laid down as to the circum- stances under which the power ought to be exercised, the Courts may go into the purposeand framework of theenabling legislationitself todetermine whatshould have been the relevantcriteria. Thus the Courts will beina better position to judge whether the action was taken on irrelevant considerations even where it is not clearly defined. In Arora. State of Uttar Pradesh? where the State Government wasauthorised to acquire land for a company for public purpose and where it was acquired for a Private Company, the Court held the order to be bad as based on irrelevant consideration. The Court clearly specified that it was up to the Courts to interpret provisions and not for the Government do so. In $.P. Bhatnagar v. State of Madhya Pradesh" the Court held that irrelevance, staleness and vagueness were all vices, any single one of which was sufficient to vitiate an order of preventive detention of the authorities. In Rampur Distillery and Chemical Co. Ltd, v. Company Law Board,* the Supreme Courtaffirming the decision of the lower Courtheld that since the Board had based it’s decision solely on the past conduct without considering subsequent conduct and activities of the person, it’s decision was wrong. In Barium Chemicals v. Company Law Board, the Court opined thatif itis shown that the circumstances do not exist or that they are such that is impossible for anyone to form an opinion therefrom suggesfive of the aforesaid, the opinion is challengeable on the ground ofnon-application of mind or perversity or thatit was on collateral grounds. While considering irrelevent consideration is a ground for setting aside the order, leaving out relevant considerations is also an important factor for quashing orders, i. e. to say the authority concerned has to take into account those factors which are to be considered either expressly or impliedly. In Nizamuddin v. State of West Bengal", it was held that the fact thata criminal case was pending against the person ought to be considered before the Deputy Magistrate which was not done in this case. Some times an order may be based partly on relevant and party on irrelevant considerations. In such situations the Courts would try and find out the true purpose for which the power was exercised. After due consideration, where the Court comes to the conclusion that the purpose of the exercise was improper, it would be irrelevant that incidently a legitimate purpose is also served. This 9. ALR, 1962 SC 1164. 10. (1981) 2 SCC 456. 11. AIR 1970 SC 1789. 12. AIR 1967 SC 295. 13. AIR 1974 $C 2353,ZA manupatra ° 173 would depend on the facts and circumstances of each case. Therefore, where a matter is to be decided by the authority solely on the basis of its subjective satisfaction, it must be properly based on relevant considerations only and not a mix of both as it would be very difficult for the Court to decide as to how much the irrelevant consideration played a role in deciding on a particular course of action." Another important ground for setting aside ofan administrative ord mala fide exercise of power. Malafide would mean anything which is not bonafide - or something that is done with an intention which is dishonest. In Pratap Singh v. State of Punjab an order of suspension of a civil surgeon was set aside on the ground thatitwasa clear malafide exercise of powerasit was shown that the Chief Minister had personal animosity towards him. It was further held that for establishing malafide, direct evidence was not necessary when such an inference was inevitable from the circumstances shown. Normally, if the plea of malafide is nottaken, the order will appear tobe valid on the face of the record. Consequently, the burden of proving malafide is on the person making the allegation. Usually there is a presumption in favour of the administration that the exercise of such power was in good faith and for public benefit.* However the Courts will not accept vague and casual allegations suggesting thata particular action was taken with an ulterior motive. It is for the petitioner to conclusively prove malafide exercise of power failing which the order will be upheld.” In E. P. Royappav. State of Tamil Nadu,*it was held that mere suspicion that the power was exercised malafide would not be enough as suspicion cannot take the place of proof, and in cases where malafide is alleged, high degree of proof is needed. A In the case of Ranjit Thakur v. Union of India!® where the accused was sentenced to one year rigorous imprisonment, dismissal from service and de- : clared unfit for civil employment simply because the order ofa superior officer to eat food was disobeyed was held to be on unreasonable exercise of power. The Courts will only interfere if the decision reached is so unreasonable that no reasonable man would have ever come to it” In Jiwani Kumar v. First Land Acquisition Collector, where the Government could acquire property for a public purpose only temporarily , and the land was acquired permanently, the Court held it to be a colourable exercise of power. Nowadays, the trend of the Courts seems to be to require compliance with principles of natural justice even where the 14. Shibbantal v. State of Uttar Pradesh, AIR 1954 SC 179. 15, ATR 1964SC 72, 16, Supran.4 at 565. 17, Chugamal v, Chaliha, AIR 1971 SC 730. 18. ATR 1974 SC 555, 19, AIR 1987 SC 2386, 20. Shree Agency v. Bhattacharjee, AIR 1972 SC 780, 21, AIR 1984 SC 1707.ZA manupatra ° 174 exercise of power is committed to the subjective satisfaction of the administrative authority, especially where the civil rights of individuals may be affected. Conclusion Ithas been repeatedly held that the Courts will not go into the merits! of the case except to look into the manner in which the power wasexercised. Ifitis found to have been exercised in the manners previously discussed, the Court will set aside or quash the order. There seems to be some slight contradiction in the positions adopted by the Court. While on one hand, the Court refused to go into the merits, on the other it goes into how the powers were exercised. How can the validity of the procedure be gone into without going into the merits of the cases.7 The line of separation between the two seems to be very thin indeed. The Courts over the years seems to have realised that the best way to control or stem abuse of discretion is to be as strict as possible in certain cases while being, liberal insome other appropriate cases. The Courts will not under any circumstances substitute it’s own views for that of the concerned authority. Inspite of everything, the Courts still play a marginal role in the control of exercise of discretionary power. TheCourtsseem to have taken itupon themselves tofill in the gaps by looking into enabling act, and determining the parameters within which such discretion ought tohave been exercised. Further the Courts seems to beinsisting on speaking orders to enable them to comment on its validity in case of any dispute. The Courts have been very caustious in dealing with such cases as interfering in every other order would mean takin away the very idea behind which the discretion was granted in the first place. 22. See, Durgadas Basu, Administrative Law, 168 (1993).