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, 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"

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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 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.

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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.

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.

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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.

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.

VIOLATION OF FUNDAMENTAL RIGHTS-

The 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.
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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 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.

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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 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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