With the abandonment of laissez faire and advent of the modern philosophy of a
welfare and social service state, the administrative organ, in practically
every democratic country, is performing more and more functions.
The main tasks of the administrative organ are no longer merely police or
political; it performs vast regulatory and managerial functions.
A significant phenomenon of the present-day administrative process, is
conferment of discretionary powers on administrative personnel to take decisions
from case to case.
Because of the complexity of socio-economic conditions which the administration
in modern times has to contend with, the range of ministerial functions is very
small and that of discretionary functions much larger.
The modern tendency is to leave a large amount of discretion with various
Meaning of Administrative Discretion
- Discretion is a science or understanding to discern between falsity and
truth, between right and wrong, between shadows and substance, between
equity and colourable glosses and pretences, and not to do according to
their wills and private affections.
-Lord Edward Coke, Rooke's Case (1598), 5 Rep. 99 b.
- Lords Halsbury in Sharp v. Wakefield
Observed: Discretion means when it is said that something is to be done within
the discretion of the authorities that something is to be done according to the
rules of reason and justice, not according to private opinion ...according to
law and not humour. It is to be, not arbitrary, vague and fanciful, but legal
and regular. And it must be exercised within the limit, to which an honest man
competent to the discharge of his office ought to confine himself.
The main grounds for reviewing the administrative discretion, may be classified
- The doctrine of ultra-vires states that a person or authority acting
under statutory power can do only those things which are statutorily authorised.
- In case of failure to do so, the doctrine permits the courts to strike
down the decision made by the bodies exercising the public functions.
- Khoday Distillaries Ltd. v. State of Karnataka
- That the act of the administrative authority can be struck down if it is
manifestly unreasonable and arbitrary.
- The test of reasonableness plays a significant part in the governance of
- It can always be pointed whether the authority has a reasonable ground
Abuse of Power
- It has been seen that administrative bodies do not exercise their
discretionary power for the purpose intended to by the legislature.
- All these factors amount to the abuse of discretionary powers and become
ground for judicial review.
- If the authority concerned pays attention to, or takes into account
wholly irrelevant or extraneous circumstances, events or matters, then the
administrative action is ultra-vires and bound to be quashed.
- Associated Provincial Picture Homes Ltd. v. Wednesbury Corp.
Ruled that an authority exercising discretion must adhere to some
principles: which include:
- take all relevant factors into account;
- exclude all irrelevant factors from its consideration;
- reach the decision which is neither perverse nor irrational.
- If the statutory authority exercises discretion for a different purpose
the actions taken may be quashed on the ground to have exercised that power
for improper purpose.
- Pratap Singh v. State of Punjab
- It may be also possible to prove that an act of public body, though
performed in good faith and without the taint of corruption, was so clearly
founded an alien and irrelevant ground as to be outside the authority
conferred upon the body and therefore inoperative.
- It is not possible to draw hard and fast line, but if the administrative
authority, by reason of its having misconstrued the Act or for any other
reason so used its discretion as to thwart or run counter to the policy and
objects of the Act, the court would certainly provide protection to the
Errors of Law
- Syed Yakoob v. K. S. Radha Krishnan
- Court observed:
An error of law which is apparent on the face of record can be corrected by
a writ but not an error of fact, however, grave it may appear to be.
- The only case where a finding of fact might be impugned on the ground of
error of law apparent on the face of record are:
- erroneously refusing to admit admissible and material evidence,
- erroneously admitting inadmissible evidence which influenced the
- a finding of fact based on no evidence.
Unauthorised Delegation The principle is that when a power entrusted to a person in circumstance
indicating that trust is being placed in his individual judgement
and discretion, he must exercise that power personally unless he has been
expressly empowered to delegate it to another.
Fettering of Discretion When a statute confers powers on an authority to apply a standard as
the case in administrative discretion, it is expected of it to apply it from
case to case, and not fetter its discretion by declaration of rules or policy to
be followed uniformly in all the cases.
- Somabhai v. State
- The court observed that:
Generalization on matters which rest on discretion and the attempt to
discover formulae of universal application when facts are bound to differ
from case to case frustrates the very purpose of conferring discretion.
- The doctrine of proportionality is emerging as a new ground of challenge
for judicial review of administrative discretion.
- It is a recognised general principle of law evolved with a purpose to
maintain a proper balance between any adverse effects which its decision may
have on the rights, liberties or interests of persons and the purpose it
- The doctrine of proportionally endavours to confine the exercise of
discretionary powers of administrative authority to mean which are proportioned
to the object to be pursued.
- The courts while invoking the doctrine of proportionality may quash the
exercise of powers in which there is not a responsible relationship between
the objective which is sought to be achieved and the means used to that end.
'Proportionality' involves a Balancing test which keeps a check on the
excessive or arbitrary punishments or encroachment upon the rights and Necessity
test which takes into account other less restrictive alternates.
The principle of proportionality evaluates two aspects of a decision:
- Whether the relative merits of differing objectives or interests were
appropriately weighed or fairly balanced?
- Whether the measure in question was in the circumstances excessively
restrictive or inflicted an unnecessary burden on affected persons?
- Associated Provisional Picture Houses Vs. Wednesbury Corporation
- Under the concept of Secondary Review the Courts would strike down
Administrative Orders only if it suffers the vice of Wednesbury unreasonableness
which means that the order must be so absurd that no sensible person could ever
dream that it lay within the powers of the administrative authority.
- Union of India v. Kuldeep Singh
- The Supreme Court while invoking the principle of proportionately has
It is equally true that the penalty imposed must be commensurate with the
gravity of the misconduct and that any penalty disproportionate to the
gravity of misconduct would be violative of Article 14 of the Constitution.
- Union of India v. G. Ganayutham
- In that case the Supreme Court after extensively reviewing the law
relating to Wednesbury unreasonableness and proportionality prevailing in
England held that the 'wednesbury' unreasonableness will be the guiding
principle in India, so long as fundamental rights are not involved.
- Omkumar v. Union of India
- However the Court refrained from deciding whether the doctrine of
proportionality is to be applied with respect to those cases involving
infringement of fundamental rights.
- Shrillekha Vidyarthi Vs. State of U. P
- Equally important is the consideration whether the administrative action
challenged as arbitrary should remain within the purview of Wednesbury
- For this, it is pertinent to look at the meaning of the word
- It is never an easy term to define with precision and hence the Supreme
Court in the case of equated arbitrariness with reasonableness.
- Sandeep Subhash Parate Vs. State of Maharashtra
- In that case a student obtained admission to Engineering Course based on
a Caste Certificate, which was subsequent to the admission, invalidated
- However, he completed the course based on an interim order of the High
- Yet the University refused to grant him the degree.
- This action of the University was held to be correct by the High Court
- The Supreme Court in appeal directed the University to grant him degree
subject to the appellant making a payment of Rupees One lakh, to
re-compensate the State for the amount spend on imparting education to him as a
- This, the Supreme Court claimed was done having regard to the doctrine
- But the Supreme Court did not come to a finding that the University had
failed to balance the various considerations before refusing to grant the
appellant the degree.
- Also, the Supreme Court apart from mentioning the facts of the case
failed to explain how it came to the conclusion regarding proportionality.
- At any rate the Supreme Court itself admitted that it was taking the
decision under Article 142 of the Constitution of India.
- Ranjit Thakur Vs Union of India
- Wherein, an Army Officer disobeyed the lawful command of his superior
officer by not eating food offered to him
- Court Martial proceedings were initiated and a sentence of one year
rigorous punishment was imposed.
- He was also dismissed from service, with added disqualification that he
would be unfit for future employments.
- It was held that Judicial Review generally speaking, is not directed
against a decision, but is directed against the decision making process
- The question of the choice and quantum of punishment is within the
jurisdiction and discretion of the Court-Martial.
- But the sentence has to suit the offence and the offender.
- It should not be vindictive or unduly harsh.
- It shouldn't be so disproportionate to the offence as to shock the
conscience and amount in itself to conclusive evidence of bias.
- Coimbatore Distt. Central Co-operative Bank v. Employees Association
- Certain Employees went on illegal strike
- They also prevented others from discharging their duty.
- It was held that the acts amounted to serious misconduct.
- Punishment imposed on the employees of stoppage of increment could not
be said to be disproportionate to the charges levelled and proved against
- K. S. Puttaswamy Vs. Union of India
- Test of proportionality was upheld by the Hon'ble Supreme Court.
- It was held that in the case of proportionality of a measure must be
determined while looking at the restrictions being imposed by the State on
the fundamental rights of citizens.
- It is not just the legal and physical restrictions that must be looked
at, but also the fear that these sorts of restrictions engender in the minds
of the populace, while looking at the proportionality of measures.
Unreasonable Exercise of Discretionary Power
- The term unreasonableness embraces a wide variety of defects including
misdirection, improper purpose, disregard of relevant considerations and
advertence to immaterial factors.
- Associated Provincial Picture Homes Ltd. v. Wednesbury Corporation
- The Court observes:
There may be something so absurd that no sensible person could ever dream
that it lay within the power of authority.
- The fact is that all powers exercised by the public authorities are
liable to be misused.
- The courts are, therefore, vigilant to check the misuse of public power
which is the subject matter of judicial review.
- The term irrationality and 'unreasonableness' are often used
- However, irrationality may be said to be only one facet of
- A decision is said to be irrational if it is unreasoned; if it is
lacking ostensible logic or comprehensible justification.
- Indian Railway Construction Company Ltd. v. Ajay Kumar
- Court has held that judicial review is open in cases of irrationality.
- While quoting Lord Diplock, the Apex Court has endeavoured to explain
the meaning of irrationality as a decision which is so outrageous in its
defiance to logic or accepted moral standards that no sensible person who had
applied to the question to be decided could have arrived at.
- Procedure 'deals with the structure' of decision making and not the
quality or impact of the decision themselves.
- Another important concern of the procedural justice is to promote the
quality, accuracy andrationality of decision-making process.
- In case there is procedureal impropriety, the court can interfere.
- The court have held that the administrative authority cannot go into the
question of validity of substantive law or procedure laid down in the
statute or the rules framedthereunder since it itself is creature of statute.
- The doctrine of ultra-vires permits the courts to strike down decision
made by administrative bodies exercising public functions, if they exceed the
jurisdiction provided in the statute under which they exercise their powers.
Acting under Dictation
- The cardinal principle of administrative law is that an authority
entrusted with a discretion must not, in the purported exercise of its
discretion, act under the dictation of another body.
- Indian Railway Construction Company v. Ajay Kumar
- The Supreme Court of India struck down the order passed by the
administrative authority on the ground that it had acted under the dictation
of a superior authority and had therefore, surrendered its discretionary
power to the dictation of other authority and had not acted independently.
Malice or Malafide
- It is not only the power but the duty of the court to ensure that all
authorities exercise their powers properly, lawfully and in good faith.
- If the powers are exercised with oblique motive, in bad faith or for
extraneous or irrelevant considerations, there is no exercise of power known
to the law and action cannot be termed as, action in accordance with law.
- Somesh Tiwari v. Union of India
- High degree of proof is required for review due to malice and mere
allegations do not suffice. In the absence of sufficient material, the court
will not interfere, however, mala-fide exercise of statutory power conferred on
an authority is liable to be struck down if it is established by the party who
has alleged it so.
Colourable Exercise of Powers
- The courts have used this doctrine to denounce an abuse of discretion
which speaks that under the 'colour' or 'guise' or power conferred for one
purpose, the authorities seek to achieve something else which is not authorised
to do so under the law in question.
- State of Bihar v. Shree Baidyanath Ayurved Bhawan Pvt. Ltd.
- It may be pointed out here that if a lawful object is chosen as a colour or guise for doing something other than genuinely achieving that object,
the action would be termed as colourable exercise of power and it cannot be
sustained in the eyes of law as it is mala-fide exercise of the power.
Award Winning Article Is Written By: Ms.Shereen Samant
Authentication No: MA34117712889-22-0521