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Judicial Review of Administrative Discretion

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 authorities.

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 as under:

  1. Ultra-Vires

    • 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.

      1. 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 the country.
        • It can always be pointed whether the authority has a reasonable ground exercising judgement.
           
  2. 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.

      1. Irrelevant Consideration

        • 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.

          1. Associated Provincial Picture Homes Ltd. v. Wednesbury Corp.
            Ruled that an authority exercising discretion must adhere to some principles: which include:
            1. take all relevant factors into account;
            2. exclude all irrelevant factors from its consideration;
            3. reach the decision which is neither perverse nor irrational.
               
      2. Improper Purpose

        • 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.
          1. 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 persons aggrieved.
               
      3. Errors of Law

        1. 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:
            1. erroneously refusing to admit admissible and material evidence,
            2. erroneously admitting inadmissible evidence which influenced the finding, and
            3. a finding of fact based on no evidence.
      4. 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.
         
      5. 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.
        1. 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.
  3. Proportionality

    • 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 pursues.
    • 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.

      Tests
      '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?

        Landmark Case:
        1. 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.
             
        2. Union of India v. Kuldeep Singh
          • The Supreme Court while invoking the principle of proportionately has held that:
            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.
             
        3. 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.
             
        4. 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.
             
        5. 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 principle.
          • For this, it is pertinent to look at the meaning of the word arbitrariness.
          • It is never an easy term to define with precision and hence the Supreme Court in the case of equated arbitrariness with reasonableness.
             
        6. 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 Court.
          • 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 reservation candidate.
          • This, the Supreme Court claimed was done having regard to the doctrine of proportionality.
          • 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.
             
        7. 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.
             
        8. 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 employees.
             
        9. 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.
             
  4. 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.
      1. 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.
           
  5. Irrationality

    • The term irrationality and 'unreasonableness' are often used interchangeably.
    • However, irrationality may be said to be only one facet of unreasonableness.
    • A decision is said to be irrational if it is unreasoned; if it is lacking ostensible logic or comprehensible justification.
      1. 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.
           
  6. Procedural Impropriety

    • 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.
       
  7. Jurisdictional Error

    • 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.
       
  8. 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.

      1. 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.
           
  9. 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.

      1. 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.
           
  10. 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.

      1. 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
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