Definition:Discretion in layman’s language means choosing from amongst the various available alternatives without reference to any predetermined criterion, no matter how fanciful that choice may be. A person writing his will has such discretion to dispose of his property in any manner, no matter how arbitrary or fanciful it may be. But the term ‘discretion’ when qualified by the word ‘administrative’ has somewhat different overtones. ‘Discretion’ in this sense means choosing from amongst the various available alternatives but with reference to the rules of reason and justice and not according to personal whims. Such exercise is not to be arbitrary, vague and fanciful, but legal and regular. Problem of administrative discretion: The problem of administrative discretion is complex. It is true that in any intensive form of government, the government cannot function without the exercise of some discretion by the officials. It is necessary not only for the individualization of the administrative power but also because it is humanly impossible to lay down a rule for every conceivable eventually in the complex art of modern government. But it is equally true that absolute discretion is a ruthless master. It is more destructive of freedom than any of man’s other inventions. Therefore, there has been a constant conflict between the claims of the administration to an absolute discretion and the claims of subjects to a reasonable exercise of it. Discretionary power by itself is not pure evil but gives much room for misuse. Therefore, remedy lies in tightening the procedure and not in abolishing the power itself. Judicial Behaviour And Administrative Discretion In India:

Though courts in India have developed a few effective parameters for the proper exercise of discretion, the conspectus of judicial behaviour still remains halting, variegated and residual, and lacks the activism of the American courts. Judicial control mechanism of administrative discretion is exercised at two stages 1) Control at the stage of delegation of discretion; (2) Control at the stage of the exercise of discretion.

conditional precedents. The reason is that delegated legislation being a power to make an order of general applicability presents less chance of administrative arbitrariness than administrative discretion which applies from case to case. ‘acting unreasonably’ etc.– In India. When the mode of exercising a valid power is improper or unreasonable there is an abuse of the power. Therefore. acts mechanically & without due care. acting under dictation.(b) That the authority has not exercised its discretion properly or excess or “abuse of discretion”. The authority in which discretion is vested can be compelled to exercise it. there is a failure to exercise discretion.–Under this categorization. the power of judicial review arises from the constitutional configuration of courts. abdication of functions. (b) That the authority has not exercised its discretion properly– “abuse of discretion”. When discretionary power is conferred on an administrative authority.– The court exercises control over delegation of discretionary powers to the administration by adjudicating upon the constitutionality of the law under which such powers are delegated with reference to the fundamental rights enunciated in Part III of the Indian Constitution. ‘asking wrong questions’. Therefore. When a discretionary power is conferred on an authority. ‘acting in bad faith’. courts have after been satisfied with vague or broad statements of policy. they have developed various formulations to control the exercise of administrative discretion. unlike the USA. courts exercise judicial control over administrative discretion if the authority has either abdicated its power or has put fetters on its exercise or the jurisdictional facts are either non-existent or have been wrongly determined. if the law confers vague and wide discretionary power on any administrative authority. Therefore. it must be exercised according to law.g.(1) Control at the stage of delegation of discretion. Article 19 and other provisions of the Constitution. but not to exercise it in a particular manner. Improper exercise of discretion includes such things as ‘taking irrelevant considerations into account’. (a) That the authority is deemed not to have exercised its discretion at all– “non application of mind”. Thus where the authority abdicates its power e. Courts in India have always held the view that judge-proof discretion is a negation of the rule of law. there is no Administrative Procedure Act providing for judicial review on the exercise of administrative discretion. ‘acting for improper purpose’. These formulations may be conveniently grouped into two broad generalizations: (a) That the authority is deemed not to have exercised its discretion at all or failure to exercise discretion–“non application of mind” .– This is an all-embracing formulation developed by courts in India to control the exercise of discretion by the administrative authority. ‘neglecting to take into consideration relevant factors’. but usually it has not been so in cases of application of fundamental rights to statutes conferring administrative discretion. (2) Control at the stage of the exercise of discretion. In case of delegated legislation. it may be declared ultra vires Article 14. . the said authority must exercise that power after applying its mind to the fact and circumstances of the case in hand. imposes fetters on the exercise of discretion. Improper exercise of discretion includes everything which English courts include in ‘unreasonable’ exercise of discretion and American courts include in ‘arbitrary and capricious’ exercise of discretion.

and burden is ‘very heavy’. Neither express nor implied malice can be inferred or assumed. (2) Improper purpose. a civil surgeon in the employment of the state government. subsequently. Even though it may be difficult to determine whether or not the authority has exceeded its powers in a particular case because of the broad terms in which the statute in question may have conferred power on it. it was revoked. Mala fides may also be inferred from the authority ignoring apparent facts either deliberately or sheer avoidance. documents. the Supreme Court used the phrase “mala fides” for initiating administrative action against an individual “for satisfying a private or personal grudge of the authority.). The factors which are important in proof of mala fides: (i) Direct evidence (e. its use for a different purpose will not be regarded as a valid exercise of the powers and the same may be quashed. the courts use the phrase “mala fides” in the broad sense of any improper exercise or abuse of power. In Jaichand v. (iv) Deliberate ignoring of facts by the authority and (v) Failure to file affidavits denying the allegations of mala fides. The Supreme Court in E. The reason is that there is presumption in favour of the administration that it always exercises its power bonafide and in good faith. held the exercise of power to be mala fide and quashed the order.– Mala fides or bad faith means dishonest intention or corrupt motive. was initially granted leave preparatory to retirement. The appellant alleged that the disciplinary action against him had been initiated at the instance of the Chief Minister to wreak personal vengeance on him as he had refused to yield to the illegal demands of the Chief Minister and members of his family. The Supreme Court accepted the contention. The cases of exercise of discretionary power from improper purposes have increased in modern times because conferment of broad discretionary power has become usual tendency. the administration action may. In Pratap Singh v. tape recordings etc. State of Punjab. The burden of proving mala fides is on the person making the allegations. the Supreme Court observed that mala fide exercise of power does not necessarily imply any moral turpitude as a matter of law. State of West Bengal. It only means that the statutory power is exercised for purposes foreign to those for which it is in law intended. if the allegations are of wild nature.” In this case.P.Abuse Of Discretion:(1) Mala fides. Royappa v. 16/. but. Mala fide is a psychological factor to allege but very difficult to prove. there is no need of controverting allegations. be declared bad if the motivation behind the action is not honest. (ii) Course of events. the appellant.– If a statute confers power for one purpose. and he was placed under suspension and disciplinary action was started against him on the charge that he had accepted a bribe of Rs. It is for the person seeking to invalidate an order to establish the charge of bad faith.from some patient prior to going on leave. nevertheless. Seriousness of allegations demands proof of a high order and credibility.g. At times. The orders based . brought out difficulties inherent in proving mala fides. (iii) Public utterance of the authority. However. Tamil Nadu.

The action of an authority may be motivated by some public interest (as distinguished from private interest) but it may be different from what is contemplated by the statute under which the action has been taken. If the statute mentions no such considerations. Company Law Board. “Improper purpose” is broader than mala fides. In this case Company Law Board exercising its power under section 237 of the Companies Act 1956 ordered an investigation into the affairs of Barium Chemicals Ltd. “law and order” being wider than “public order”.In Ram Manohar Lohia v. a preventive detention order was issued against a person mainly on the ground that he had stolen railway property. then the power is to be exercised on considerations relevant to the purpose for which it is conferred. (3) Irrelevant considerations. for whereas the latter denotes a personal spite or malice. it will quashed. the petitioner was detained under the Defence of India Rules. the court held that the power of detention could not be used on simple solitary incident of theft of railway property and the proper course to prosecute the person was in a criminal court. 1962 to prevent him from acting in a manner prejudicial to the maintenance of “law and order”. Again in L.K. v. The exercise of discretionary power should not be influenced by considerations that cannot be lawfully taken into account. In a few cases on preventive detention the Supreme Court has held that the power of preventive detention cannot be used as a convenient substitute for prosecuting a person in a Criminal Court. If the authority concerned plays attention to.on improper purpose were quashed first in the cases concerning the exercise of powers of compulsory acquisition in England. Thus where an administrative order is issued on formal grounds or considerations which are irrelevant. Dass v. whereas the rules permitted detention to prevent subversion of “public order”. State of West Bengal. It means that power must be exercised taking into account the considerations mentioned in the statute.– A discretionary power must be exercised on relevant and not on irrelevant or extraneous considerations. or takes into account wholly irrelevant or extraneous circumstances. The order was held to be bad by the court. the former may have no such element. State of West Bengal. the two concepts were not the same. as a result of which the value of the shares had . Here it is not so much relevant to assess whether the authority is acting in good faith or bad faith. In Srilal Shav v. What is relevant is to assess whether the purpose in view is one sanctioned by the statute which confers power on the authority concerned. The court struck down the order as. events or matters then the administrative action is ultra vires and will be quashed. is a matter of inference from the general terms of the statute. in its opinion. Bihar. In Barium Chemicals Ltd. The basis of the exercise of discretion for ordering investigation was that due to faulty planning the company incurred a loss. He had documents in his possession to prove his bona fide and to prove that he had purchased the goods in the open market. and those which are irrelevant. A criminal case filed against him was dropped and the mentioned preventive detention was passed in its place. The determination of the considerations which are relevant. this case shows a definite orientation in the judicial behaviour for an effective control of administrative discretion in India.

quashing the order of the government. Difference Between A Power Exercised For An Improper Purpose And On Irrelevant Considerations: The difference between a power exercised for an improper purpose and on irrelevant considerations is often imperceptible. acquisition of land for another authority. the courts have taken a strict view of the matter and has held such an order invalid if based on . During this period two entries were adverse to the appellant. the consideration for the administrative action being acquisition for itself. The Supreme Court stated that an administrative order based on a reason or facts that do not exist must be held to be infected with an abuse of power. was prematurely retired from the service in ‘public interest’ on attaining the age of 50 years. where land is acquired by an authority ostensibly for itself but really for another authority. For instance. a Central Government Officer. Venkataraman v. the power may be said to be exercised. after the authority took into consideration an irrelevant factor. The Court held that reliance on those two entries was also not proper and quashed the impugned order as the same was based on irrelevant considerations. In S. (4) Mixed considerations.R. In Brij Mohan Singh v. but in another sense.fallen and many eminent persons had resigned from the Board of Directors. in one sense. The government conceded that there was nothing on record to justify the order. State of Punjab. namely. the appellant.– Sometimes. the appellant was compulsory retired from service on the basis of service entries of about 20 years though during that period he had been promoted many times. it so happens that the order is not wholly based on irrelevant or extraneous considerations. The court quashed the order of the Board on ground that the basis of the exercise of discretion is extraneous to the factors mentioned in section 237. for an improper purpose. held that if a discretionary power has been exercised for an unauthorized purpose. Union of India. The appellant contended that the government did not apply its mind to her service record and the order was based on extraneous circumstances. The judicial pronouncements do not depict a uniform approach on this point. The Supreme Court. It is founded partly on relevant and existent considerations and partly on irrelevant or non-existent considerations. In preventive detention cases. it is generally immaterial whether its repository was acting in good faith or bad faith. The Court held that entries of only last ten years were relevant for compulsory retirement.

arguing that it is difficult to say to what extent the bad grounds operated on the mind of the administrative authority and whether it would have passed the order only on the basis of the relevant and valid grounds. and second. (5) Leaving out relevant considerations. However. “Any curtailment of quota must necessarily proceed on the basis of reason and relevance” observed the court. the exercise of the power will be bad if some of the grounds are found to be non-existent or irrelevant. Union of India. that his activities were prejudicial to the maintenance of supplies essential to the community. The Court held the order bad as the Government had not taken into account relevant considerations in making the order. might reasonably has affected the subjective satisfaction of the appropriate authority. the Court has made it clear that in applying this principle the court must be satisfied that the vague or irrelevant grounds are such as. production capacity of the factory. or irrelevant considerations allowed finding place. the quality of guns produced. the Supreme Court has observed that if the power is conferred on a statutory authority to deprive the liberty of a subject on its subjective satisfaction with reference to specified matters.– If in exercising its discretionary power.” . if that satisfaction is stated to be based on a number of grounds or for a variety of reasons. State of Uttar Pradesh. In the opinion of the court if some of the grounds are found to be non-existent or irrelevant. The order was challenged on the ground that the order was not based on relevant considerations but on extraneous consideration. the production quota of a licensed manufacturer of guns was reduced from 30 to 10 guns a month.any irrelevant ground along with relevant grounds. Later the government revoked his detention on the first ground as either it was unsubstantial or nonexistent but continued it on the second. the decision is vitiated by arbitrary judgment. economic viability of the unit. an administrative authority ignores relevant considerations. However in the case of preventive detention generally the courts have quashed the orders of detention based on relevant as well as irrelevant grounds. An authority must take into account the considerations which a statute prescribes expressly or impliedly. the court may still imply some relevant considerations for the exercise of the power and quash an order because the concerned authority did not take these into account. Ranjit Singh v. In Shibbanlal v. that his activities were injurious to the maintenance of public order. State of Jammu and Kashmir. administrative policy pertaining to maintenance of law and order. all taken together.the petitioner was detained on two grounds: first. if excluded. the Court can’t predicate what the subjective satisfaction of the said authority would have been on the exclusion of those grounds or reasons. its action will be invalid. In Dwarka Das v. The court quashed the original detention order. Unless detailed reasons are given from which it can be inferred that the authority took action after ignoring material considerations it is hard to have the action quashed on this basis. The principle was stated as “if all relevant factors are not considered. But the cases may be found where the courts have upheld the order of detention valid even where it was based on mixed considerations. In case the statute does not prescribe any considerations but confers power in a general way.

“colourable exercise of power” would not appear to be a distinct ground of judicial review of administrative action but would be covered by the grounds already noticed. the Supreme Court stated as the follows with reference to acquisition of land under the Land Acquisition Act: “Now whether in a particular case the purpose for which land is needed is a public purpose or not is for the State Government to be satisfied about subject to one exception. In the Somawanti v. the courts have used a vague phrase “judicial discretion” to restrict the exercise of discretionary power by an authority. the term can be applied properly only to quasi-judicial bodies and not to administrative bodies. If it appears that what the Government is satisfied about is not a public but a private purpose or no purpose at all action on the Government would be colourable as not being relatable to the power conferred upon it by the Act and its declaration will be a nullity. The exception is that if there is a colourable exercise of power the declaration will be open to challenge at the instance of the aggrieved party. a quasi-judicial body cannot be directed by a higher authority to exercise its discretion in a particular manner. and are being discussed here. The same appears to be the conclusion when reference is made to cases where the ground of “colourable exercise of power” has been invoked.– At times. indicates that such discretion is not absolute or unqualified. The term. not capaciously or arbitrarily but. Viewed in this light. However. Colourable exercise means that under the “colour” or “guise” of power conferred for one purpose. Such a body is to exercise its discretion on relevant grounds and not on irrelevant grounds and so on.” Through the use of term “judicial discretion” the courts would read implied limitations into statutory powers and quash an administrative order if the authority crossed those limitations. its use does not seem to be necessary as the courts have read implied restrictions on a discretionary power even without characterizing it as “judicial discretion”. State of Punjab. improper purpose or irrelevant considerations. it was observed by Supreme Court in Registrar. Ashok Chandra Rakhit. with reference to the power of the Registrar to register a trade mark that “the exercise of the power conferred on Registrar always remained a matter of discretion to be exercised. Thus. the authority is seeking to achieve something else which it is not authorized to do under the law in question then the action of the authority shall be invalid and illegal.” (7) Judicial discretion. For instance. Most of the principles which apply to control administrative discretion. apply mutatis mutandis to the exercise of discretion by tribunals or other quasi-judicial bodies. .– At times. Trade Marks v.(6) Colourable exercise of power. according to sound principles laid down for the exercise of all judicial discretion. In any case. thus. the courts use the idiom “colourable exercise of power” to denounce an abuse of discretion.

as that the authority has acted on irrelevant or extraneous consideration or for an improper purpose. that the court should judge whether the administrative action was reasonable or not where the statute was silent as to reasonableness.D. Similarly. Singh.. a discriminatory action would still be violative of the equality clause. The courts have also stated that the authority should consider the question fairly and reasonably before taking action. 1950. In Chandeshwari Prasad v. The court does not infer the requirement of reasonableness from a statute by implication. The term “unreasonable” means more than one thing. The court found that there was no evidence to support the findings of the authority. etc.– At times the statute may require the authority to act reasonably. Although the above Chandeshwari Prasad’s case is only an exception to this proposition. Article 19 requires only reasonable restrictions to be imposed on the rights specified therein. In Rohtash Industries Ltd. Thus. the Supreme Court quashed on administrative action taken by the Government under Section 237 of the Companies Act. . unreasonableness does not furnish an independent ground of judicial control of administrative powers apart from the grounds already mentioned.N. the administration authority had cancelled certain grants of property made to the petitioner by the previous owner on the ground that the transfer was made with a view to defeating the provisions of Bihar Land Reforms Act.e. S. v K. v. 1956 on the ground that no reasonably body would have reached impugned conclusions. Unreasonableness may furnish a ground for intervention by the courts when the Constitution of India or the statute so requires. Viewed thus.D. and to obtain higher compensation. It may embody a host of grounds mentioned already. Article 14 of the Constitution guarantees equality before law but the courts have permitted reasonable classification to be made. or mala fide. Here the court considered the question as to whether any reasonable body much less expert body like Central Government would have reasonably made the impugned order on this basis of the material before it? In such cases the test of judicial intervention is not what the court considers as unreasonable but a decision which it considers that no reasonable body could have come to i. Where the law is valid under the article.(8) Unreasonableness. Agarwal. The court observed : “the word ‘satisfied’ in Section 4(4) must be construed to mean ‘reasonably satisfied’ and therefore the finding of the Collector under Section 4(4) cannot be subjective or arbitrary findings but must be based upon adequate materials. Co. when the action is “oppressive” or “falsely absurd”. The Supreme Court refused to accept the plea in K. State of Bihar.

Administrative Law – 4th Edt. The Supreme Court observed in K. 2010 by M.org. BOOKS REFERED: The Constitutional Law of India – 47th Edt. State of Meghalaya. Every administrative act or decision is thought to be proper and lawful only if it is reasonable. The Constitutional Law of India – 6th Edt. unreasonableness and unfairness.There may be cases where the administrative authority might have exercised his power without any reason. can be no ground for interference.P.N.Jain. In such cases the court would quash the order.P. Administrative Law .1950.4th by Takwani. D.wikipedia.2010 by Dr.com.com.indiankanoon.Pandey. that to attract judicial review of administration action.WEBSITES AND LEGAL DATABASES: www.manupatra. In France any act can be brought to the test of reason. www. Bibliography and webliography STATUTES REFERED: The Constitution of India. www.L. . M. the applicant must show that the administrative action suffers from vice of arbitrariness. The Court can only interfere when the process of making such decision is wrong or suffers from the vice of arbitrariness. unfairness and unreasonableness.cdj lawjournal. www.Jain. Conclusion: It may be mentioned here that in France the reasonableness of the administrative acts or decisions is examined on a much broader scale than in common law countries. Trading Co.org. Ltd.J. Merely because the Court may feel that the administrative action is not justified on merit. v.

Table Of Content S. 5. 3. 1 2 3 5 8 9 . 6. Content Definition Judicial Behaviour And Administrative Discretion In India Abuse Of Discretion Difference Between A Power Exercised For An Improper Purpose And On Irrelevant Consideration s Conclusion Bibliography and webliography Page No.No 1. 2. 4.



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