JUDICIAL REVIEW OF ADMINISTRATIVE ACTION

Administrative discretion

‘Administrative discretion’ refers to the discretion enjoyed by administrative authorities.

‘Discretion’
implies the power to make a choice between two or more courses of action (or inaction).
According to
Coke, discretion is a science or understanding to discern between falsity and truth, between
right and
wrong, between shadow and substance. It does not mean taking decisions according to an
individual’s
whim, fancies, caprices or opinion.

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Lord Halsbury has described the concept of administrative action in the following words:
‘Discretion’ means that something is to be done according to the rules of reason and justice,
not according

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to private opinion; according to law, and not humour. It is to be not arbitrary, vague and

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fanciful, but legal
and regular. It must be exercised within the limits to which an honest man competent to

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discharge his

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office ought to confine himself.

JUDICIAL REVIEW

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"Judicial review" of administrative action is a procedure by which a court can
pronounce upon the

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executive action

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validity of an action taken by an executive authority. It is the court’s power to review

and strike it down in certain circumstances. The object of judicial review is to ensure that the
executive

fair treatment. T
authority does not abuse the power vested in it and that the affected individual gets just and

In judicial review, the court

the merits of
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not
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so much concerned with the correctness of the decision or

the case. Rather, it is more concerned with the manner in which a decision has been taken or
an order has
been passed by an administrative authority.
However, it is also to be noted that the general rule is that courts have no power to interfere
with the
action taken by administrative authorities in the proper exercise of their powers. As observed
by Lord
Halsbury, if the legislature has conferred certain powers on a particular body, giving it a
discretion as
regards how they are to be exercised, it is beyond the power of any court to contest such
discretion. In
other words, judicial review of administrative action is not concerned with the merits of a
decision or
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order, as the court does not act as a court oftr-appeal cases; the court is only concerned
with
whether an administrative authority or tribunal has acted within its powers and whether it has
followed
the proper procedures.

GROUNDS FOR JUDICIAL REVIEW OF ADMINISTRATIVE ACTION

The courts interfere with the exercise of discretionary powers by administrative authorities
with a view to
ensure that such authorities act within their allocated jurisdiction and follow proper
procedures. The
power of judicial review has been successfully invoked in two broad circumstances, namely,
-

A. Failure to exercise discretion

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B. Excess or abuse of discretion

FAILURE TO EXERCISE DISCRETION

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A failure to exercise discretion can arise, inter alia, in the following five circumstances,

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namely,

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(a) Unauthorised delegation: If an administrative authority has been given the power to do a

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discretionary act, it is that particular authority which must exercise the discretion. The power
cannot

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normally be sub-delegated to another authority or administrative official by application of the

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"Delegatus non potest delegare" which means a delegate cannot delegate.

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(b) Self-imposed fetters on discretion: Whenever discretionary power is conferred on an
administrative

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authority, it must exercise its discretion in the facts and circumstances of every individual
case. If it
adopts fixed rules of policy applicable4Ltotr-5R
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every case,
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administrative authority cannot adopt a policy of ‘shutting its ears’ by making general rules
which apply
to all cases.

In a case Keshavan Bhaskaran v. State of Kerala, AIR 1061 Ker 23, the court held that a rule
provided
that a school-leaving certificate was not to be issued to any student unless he had completed
fifteen years
of age. However, the Director was given the power to grant an exception from this rule in
deserving
cases. The Director, however, evolved a rule not to grant an exemption unless the deficiency
in age was
less than two years. The court held that this policy rule followed by the Director was contrary
to law.
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(c) Acting under the dictates of a superior: If an authority which is entrusted with a
particular power
does not exercise that power independently, but acts under the dictates of his superior, his act
would be
struck down by a court, as it amounts to surrender and abdication of power.

(d) Non-application of mind: When a discretionary power is conferred on an authority, he

must exercise

this power after applying his mind to the facts and circumstances of every case. If he does not
do so and
acts mechanically in the matter, his action is liable to be set aside by the court.

(e) Power coupled with duty

EXCESS OR ABUSE OF DISCRETION

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Excess or abuse of discretion can arise, inter alia, from the following circumstances:

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i. Acting without jurisdiction: If an administrative authority has no power to do a particular
act,

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any purported exercise of such power is naturally void and non-existent in the eyes of law.
ii. Exceeding jurisdiction: Every administrative authority must exercise its powers within the
four corners of the law and if it exceeds these boundaries, its action is ultra vires, and

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therefore, void.

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iii. Arbitrary action: If the action of the administrative authority is arbitrary, discriminatory,
irrational, perverse or unreasonable, it is liable to be struck down by the court.

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iv. Irrelevant considerations not taken into account: If an administrative authority takes into

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account irrelevant or extraneous considerations when exercising its discretionary powers, its

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action is ultra vires and bad in law. So, if a teacher is dismissed from a school because she

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has red hair or a salesgirl is fired because she is not sexy, the action would be bad in law.An
irrelevant consideration is one which the authority in question must not take into account
when coming to a decision.

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v. Relevant considerations not taken into account: If an authority fails to take into account
relevant considerations, then too, the exercise of its powers would be bad in law.
vi. Decision based on relevant and irrelevant
vii. Mala fide action: This 7S6Q4T9M
ground
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considerations:
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can be examined from the angle of malice in fact (express
malice) and malice in law (implied or legal malice). Malice in fact involves ill-will,
vengeance, personal enmity, dishonest intention and the like. If such malice on the part of the
administrative authority is proved, the court has no option but to strike down the
administrative action.
viii. Collateral purpose or improper object: If statutory power is conferred for one purpose
but is
exercised for another purpose, this could amount to abuse of power and the matter can be
examined by a court and such action set aside, if necessary.
ix. Colorable exercise of power: When an authority purports to exercise its power for the
purpose for which it was conferred, when in fact, it is exercising it for a totally different

purpose, it is a case of colourable or fraudulent exercise of power and such action is liable to
be set aside by the court.
x. Colourable legislation: When a legislature is not competent to enact a law, but nevertheless
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passes such a law, purporting to do so undertr-a5I7K
power on it by law, it is a case of
colourable legislation and such legislation (as well as action taken under it) is liable to be set
aside. The doctrine of colourable legislation does not go into the bona tides of the legislation.
The only question is whether the legislature has power to legislate on that subject.
xi. Non-observation of the rules of natural justice: If the exercise of administrative power
adversely affects any person, rules of natural justice must be observed. If they are not, the
action of the administrative authority is liable to be set aside.
xii. Unreasonableness: It is necessary that the discretionary power conferred on an
administrative
authority must be exercised in a reasonable manner. If it is not so exercised, there is an abuse
of administrative power, the action is ultra vires and will be set aside by a court. It is not easy
to define the word ‘unreasonable’, and as once observed, the term covers “a multitude of
sins”.
xiii. Doctrine of proportionality: Closely related to the doctrine of reasonableness is the
doctrine
of proportionality, which is considered to be a new development in the field of judicial
review. In recent times, the courts have interfered with decisions in matters like punishments

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and payment of compensation on the ground that they are “shockingly disproportionate or
excessive”.

DOCTRINE OF LEGITIMATE EXPECTATION

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The doctrine of legitimate expectation is a recent development in administrative law, both in
England and

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in India, and has become one more ground for judicial interference. According to this

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doctrine, a person
may develop a legitimate expectation that an administrative authority will treat him in a
particular way -

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although the law does not confer on him any right to receive such treatment. His expectation
may arise in

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made to him

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several ways, as for instance, when there is an express promise held out or a representation

by the concerned authority or because there has been a past practice which he expects would
continue. In

those of natural T
such cases, the court may protect the person concerned by invoking principles similar to

justice. The court may not

a case;
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that
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the administrative authority should act judicially in such

however, it may insist that it should act fairly.

The application of this doctrine is reflected in the following cases:
In The Supreme Court Advocates-on-Record Association v. Union of India (AIR 1994 SC
268), it was
held that in recommending appointments of judges to the Supreme Court, the legitimate
expectations of

High Court judges should be kept in mind by the Chief Justice of India. In the course of its
judgment, the
Supreme Court made the following observation:

“Just as a High Court judge, at the time of his initial appointment, has the legitimate
expectation to
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become the Chief Justice of a High Court intr-his
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legitimate
expectation to be considered for appointment to the Supreme Court in his turn and according
to his
seniority.”

In J. P. Bansal v. State of Rajasthan (AIR 2003 SC 1405), Mr. B had been appointed as the
Chairman of
the Taxation Tribunal on a temporary basis until a regular Chairman could be appointed.
However, a little
later, the Tribunal itself was abolished. Pleading the doctrine of legitimate expectation, Mr. B
sued the
state for compensation of Rs. 5 lakhs. Dismissing the petition, the Supreme Court held that
his
appointment was purely contractual and the doctrine of legitimate expectation has no
application at all in
such cases. He was, therefore, not entitled to any compensation.

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In State of H.P. v. Kailash Chand Mahajan (AIR 1992 SC 1277), an Act was amended to
provide for an

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age of superannuation. Mr. M contended that when he was appointed, there was a fixed

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tenure, and
therefore, he had a right to continue to hold the office, applying the doctrine of legitimate

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expectation.

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The Supreme Court, however, rejected his contention, observing that the doctrine cannot
preclude

OMBUDSMAN

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legislation or amendment of existing legislation.

OMBUDSMAN

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‘Ombudsman’ is derived from a Swedish word meaning ‘a grievance person’ and is referred
to in the

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Oxford Dictionary as the “people’s defender”. An Ombudsman is appointed to safeguard
citizens against
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abuse or misuse of administrative
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power by the executive. His primary function is to

allegations of maladministration, which takes several shapes: indifference, callousness, delay,

red tape,
subtle abuse of power, deliberate non-exercise of powers or functions or even an over-
enthusiastic pursuit
of policy.

IMPORTANT CASE LAWS

Chandra Prakash Mishra vs Flipkart India Private Limited

Coram: Justices Dinesh Maheshwari and Aniruddha Bose
Summary: Appeal challenging adverse Remarks made in the Allahabad HC judgment
regarding a Statutory authority - Allowed - Even if the High Court found that the impugned
actions of the authorities concerned, particularly of the appellant, had not been strictly in
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conformity with law or were irregular or were illegal
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themselves, were not leading to an inference as corollary that there had been any deliberate
action or omission on the part of the Assessing Authority or the Registering Authority; or that
any 'tactics' were adopted.

Administrative Law - Every erroneous, illegal or even perverse order/action by a Statutory

authority, by itself, cannot be termed as wanting in good faith or suffering from malafide -
For imputing motives and drawing inference about want of good faith in any person,
particularly a statutory authority, something more than mere error or fault ought to exist.

Union of India vs Mukesh Kumar Meena

Coram: Justices M R Shah and B V Nagarathna
CBDT Departmental Examination- Grace mark policy - The benefit of the grace marks was
not to allow the reserved category candidate to switch over to general category - Only in a
case where any candidate belonging to any category is marginally failing to pass the
examination, he is/was to be allowed the grace marks so as to allow him to obtain the

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minimum passing marks required and that too by allowing upto five grace marks - It was

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never meant for a person, who has passed in his own category.

State of Maharashtra vs Shaikh Mahemud

Coram: Justices Hemant Gupta and V. Ramasubramanian

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Appeal against Bombay HC judgment which set aside the notification which cancelled

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appointment of one Shaikh Mahemud as a Member of the Maharashtra State Board of Waqfs

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- Allowed - The findings of the High Court (i) that the term of office of a Member of the
Board stipulated under Section 15 of the Waqf Act cannot be curtailed except in the case of

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disqualification under Section 16 or removal under Section 20; and (ii) that the cancellation 4
of appointment was arbitrary, are incapable of being upheld.

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factual basis.

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Administrative Law - For holding the action of the Executive to be arbitrary, there must be a

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Esteem Properties Pvt. Ltd. vs Chetan Kamble
Coram: CJI NV Ramana, Justices AS Bopanna
Appeal against High Court 5R 7S 6Q 4T 9M 0N4Ltr-5R7S6Q
and Hima Kohli
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tr- Judgment allowing PIL in the matter of a title claim between a
private party and the State - Allowed - The State clearly indicated that they do not have any
interest in pursuing the ownership of the land in question and have admitted to the title of the
appellants - Institution of the public interest litigation was nothing more than an abuse of the
process.
Constitution of India, 1950 - Article 32, 226 - Public Interest Litigation - PIL litigation has
had a beneficial effect on the Indian jurisprudence and has alleviated the conditions of the
citizens in general - Thousands of frivolous petitions are filed, burdening the docket of both
this Court and the High Courts - Many claims filed in the Courts are sometimes immature.
Noble intentions behind expanding the Court's jurisdiction to accommodate socially relevant
issues, in recent decades, have been critically analyzed. (Para 21)

Administrative Law- Natural Justice - Importance of natural justice and an opportunity of

hearing to be afforded to the affected party in any administrative or quasi judicial
proceedings. (Para 28)
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Summary: Appeal against High Court Judgment allowing PIL in the matter of a title claim
between a private party and the State - Allowed - The State clearly indicated that they do not
have any interest in pursuing the ownership of the land in question and have admitted to the
title of the appellants - Institution of the public interest litigation was nothing more than an
abuse of the process.

Case: Esteem Properties Pvt. Ltd. vs Chetan Kamble | CA 10425 OF 2010 | 28 Feb 2022
Citation: 2022 LiveLaw (SC) 226
Coram: CJI NV Ramana, Justices AS Bopanna and Hima Kohli
Counsel: Sr. Adv Mukul Rohatgi for appellants, Adv Rahul Chitnis for respondent - State,
Adv Tapesh Kumar Singh for respondents

Ram Chander vs State of Chhattisgarh

Coram: Justices DY Chandrachud and Aniruddha Bose
Supreme Court allowed writ petition filed by a convict whose application for remission was

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rejected- Special Judge, Durg directed to provide an opinion on the application for remission

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afresh accompanied by adequate reasoning.
Constitution of India, 1950 ; Article 32,226 - Code of Criminal Procedure, 1973 ; Section 432

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- Judicial review- Remission - The Court has the power to review the decision of the
government regarding the acceptance or rejection of an application for remission under
Section 432 of the CrPC to determine whether the decision is arbitrary in nature. The Court is

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empowered to direct the government to reconsider its decision. (Para 14)

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Administrative Law - The requirement to give reasons is satisfied if the concerned authority
has provided relevant reasons. Mechanical reasons are not considered adequate.

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Daljit Singh vs Arvind Samyal

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Coram: Justices MR Shah and BV Nagarathna

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Appeal against Jammu and Kashmir High Court judgment setting aside the Full bench
judgment of Central Administrative Tribunal - Dismissed - We are in complete agreement

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with the view taken by the High Court on the procedure which was adopted by the Chairman
of the Central Administrative Tribunal.
Administrative Tribunal Act, 1986 ; Section7S26
between the Judicial Member
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- Once there is a difference of opinion
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and the Administrative Member of the Tribunal, the matter is
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required to be referred to the third Member/Chairman and the third Member/Chairman was
required to give his own decision upon such a reference. However, the matter is not required
to be referred to the Full Bench.

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