Dr.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY

ACADEMIC SESSION:2017-18

FINAL DRAFT OF ADMINISTRATIVE LAW

ON

TELECOM REGULATORY AUTHORITY AND

ADMINISTRATIVE DISCRETION

Submitted to: Submitted by:

Dr.Rajneesh Kumar Yadav

Dr.Alka Singh NAINA CHAWLA

ASST. PROFESSOR (LAW) B.A LL.B (Hons.)

DR. RAM MANOHAR LOHIYA 5th SEMESTER

NATIONAL LAW UNIVERSITY ROLL NO: 88

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 ACKNOWLEDGEMENT

I express my humble thanks to Dr.ALKA SINGH and Dr.Rajneesh Kumar

Yadav my subject teacher of ADMINISTRATIVE LAW, under whose supervision the
project has been made and without whose teachings and insights on the subject, the project
could not have been fructified. I also extend my heartiest thanks to my seniors for their
insights into the concerned project and helping me with everything I asked them. The role of
the Library Department is noteworthy. All the staff members helped me generously in getting
the materials and information I needed to complete the project.

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 INDEX

INTRODUCTION(TRAI)…………………………………………………4
ADMINISTRATIVE DISCRETION……………………………………...6
MODERN DAY ADMINISTRATIVE DISCRETION…………………...6
ABUSE OF ADMINISTRATIVE DISCRETION………………………...7
EXAMPLES OF ADMINISTRATIVE DISCRETION…………………..13
ADMINISTRATIVE DISCRETION AND FUNDAMENTAL RIGHTS..14
DISADVANTAGES OF CONFERING DISCRETION………………….15
JUDICIAL CONTROL AND EXERCISE OF DISCRETION…………...17
CONCLUSION……………………………………………………………20
BIBLIOGRAPHY…………………………………………………………21

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INTRODUCTION(TELECOM REGULATORY
AUTHORITY OF INDIA)
The Telecom Regulatory Authority of India (TRAI) is the regulator of
the telecommunications sector in India. One of its main objectives is to provide a fair and
transparent environment that promotes a level playing field and facilitates fair competition in
the market. TRAI regularly issues orders and directions on various subjects such as tariffs,
interconnections, quality of service, Direct To Home (DTH) services and mobile number
portability.

In January 2016, TRAI introduced an important change in telecommunication that would

benefit all consumers. Effective from 1 January 2016, consumers will be compensated for
call drops. However, there is a catch, per the rule, mobile users will get a compensation of Re
1 for every dropped call but it will be limited to a maximum three dropped calls in a day. This
regulation has been quashed by Supreme Court on the ground of being "unreasonable,
arbitrary and unconstitutional".

GOVERNMENT CONTROL OVER TRAI

TRAI is not a completely independent telecom regulator. The Government exercises certain
amount of control over TRAI. Under section 25 of the Act it has the power to issue directions
which are binding on TRAI. The TRAI is also funded by the Central Government. Moreover,
under section 35 of the TRAI Act, the Central Government has the power to make rules on
various subjects and such rules are binding upon TRAI. Therefore, TRAI is not a completely
independent telecom regulator as envisioned by the Supreme Court.

The functions of the TRAI are:

The recommendations made by the TRAI are not binding on the Central Government.
However, the Central Government has to mandatorily ask for recommendations from TRAI
with respect to need and timing of new service provider and terms and conditions of the
licence to be granted to the service provider. TRAI has the obligation to forward the
recommendation to the Central Government within 60 days from the date of the request for
recommendation. TRAI may also request for relevant information or documents from the
Central Government to make such recommendations and the Central Government has to
furnish such information within seven days from the date of the request.

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The Central Government can issue licence to the service provider, if TRAI fails to give any
recommendation within the stipulated period. Where the Central Government is of the
opinion that the recommendations made by TRAI cannot be accepted or need modification,
then it can send them back to TRAI for reconsideration. TRAI may reply within a period of
15 days from the date of reference.

TRAI also has the power to notify in the official gazette the rates at which telecommunication
services are being provided in and outside India. TRAI shall ensure transparency while
exercising its powers and discharging its functions.TRAI under section 12 has the power to
call for information and conduct investigation. It also has got powers to issue directions under
section 13.

AMENDMENT TO THE TRAI ACT

The TRAI Act was amended through the TRAI (Amendment) Act, 2000 (“Amendment
Act”). Before the amendment, TRAI exercised both regulatory and dispute resolution
functions. The Amendment Act established the Telecom Dispute Settlement Appellate
Tribunal to solely deal with relevant disputes. There was ambiguity in the Act as to whether
TRAI recommendations are binding upon the Government; this was clarified by the
Amendment Act1.

TELECOM DISPUTES SETTLEMENT APPELLATE TRIBUNAL

The Telecom Dispute Settlement Appellate Tribunal (Tribunal) is established under section
14 of the Act. It is the sole dispute resolution body in the communication sector. It can
adjudicate upon any dispute between:

1. Licensor (Central Government) and a licensee.

2. Two or more service providers.
3. Between a service provider and a group of consumers.

However, the Tribunal does not have any jurisdiction to try any matter which deals with anti-
competitive trade practices or any consumer complaint.

1
https://cis-india.org/telecom/resources/trai-act-1997

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ADMINISTRATIVE DISCRETION

In public administration, administrative discretion refers to the flexible exercising of

judgment and decision making allowed to public administrators2. Regulatory agencies have
the power to exercise this type of discretion in their day-to-day activities, and there have been
cases where regulatory agencies have abused this power. Administrative law can help these
agencies get on the path of following regulations, serve the public, and in turn, a reflection of
the public's values and beliefs.

There's a need for administrative discretion because the public’s interest could be at risk if
several agencies were not following laws and regulations. Administrative discretion is
important because without it, it could lead to arbitrary and unreasonable use of such
discretion, which may lead to destruction of basic principles of administrative law.3 Although
this type of discretion isn't laid out in the job-description of a bureaucrat/public servant, it is
necessary because citizens use these bureaucratic institutions every day; such as the D.M.V. ,
public schooling, and numerous others. Street-level bureaucrats have to deal with the
provision of service as well as translating vaguely worded mandates into specific cohesive
and comprehensive language to organize protocol.

Administrative discretion allows agencies to use professional expertise and judgment when
making decisions or performing official duties, as opposed to only adhering to strict
regulations or statuses. For example, a public official has administrative discretion when he
or she has the freedom to make a choice among potential courses of action. The failure to
exercise reasonable judgment or discretion is abuse of discretion.

MODERN DAY ADMINISTRATIVE DISCRETION

In today’s administrative discretion, some issues affect the way organizations function and
the way the public feels towards administrations/agencies as a whole. In this way public
administrators are seen as "moral agents"; they are given the task to exercise discretion, and

2
Rabin, J. (2003). "Administrative Discretion". Encyclopedia of public administration and public policy. New
York: Dekker. p. 35.
3
Vaishnav, S., & Marwaha, K. (2015). Judiciary: A Ladder between Inevitable Administrative Discretion and
Good Governance. International Journal Of Multidisciplinary Approach & Studies, 2(2), 63-72.

6
reflect the society’s values. In theory, the public expects administrators to be the exemplary
role models of society and follow laws and regulations.

In reality, some do not think the administrators play fair and the public feels distrusts towards
them. In a poll done by Gallup.com, the public showed an increase in the mistrust in
government. People were asked if corruption was widespread throughout the government.
The results recorded from 2006 to 2013 rose significantly; from 56% to 79%.4The public may
know little to nothing about the administration or their responsibilities, yet approval is very
low. Some attribute this mistrust to a lack of transparency, where corruption can occur.5 The
lack of transparency can mean that an administration is not completely honest, secretly
keeping hidden agendas: withholding information from public view. It can also simply mean
that the administration does not attempt to make their information easy to access or
understand for the public.

ABUSE OF ADMINISTRATIVE DISCRETION

Administrative Law has undergone a rapid expansion in the past six decades since its
inception in Independent India. After India became free of British control, India has been
witness to a huge leap in the number of administrative activities and functions in order for its
smooth functioning. The Legislature and the Executive have been the pillars set up by the
mandate of the Constitution and in the best interests of the nation both must work in tandem.

This is best seen from the fact that the Parliament cannot legislate on all aspects of a certain
matter and simply vest authority in the executive to implement the same. In certain instances,
it is necessary to leave certain gaps in laws and allow the same to be filled as per the
discretion of the executive authorities on a case to case basis.

The Executive uses this discretion in order to act upon the authority vested in them
statutorily. By exercising discretion, it is ordinarily meant that there are various alternatives
that the executive authority can choose to take in a situation. This confers a wide power to
choose a course of action and smells of arbitrary power being given in this case. However,
the law has imposed a check such that this discretionary power is subject to fetters in the

4
http://www.gallup.com/poll/172019/americans-less-satisfied-freedom.aspx
5
http://www.academia.edu/12395809/Judiciary_A_Ladder_between_Inevitable_Administrative_Discretion_and
_Good_Governance

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sense that the authority must exercise power as per the directions of the statute. It can
exercise discretion but only to fulfil the spirit of the statute creating it.

Now, the power of discretion in functioning is vested in the administrative authorities. This
ensures that it has sufficient autonomy and freedom in performing its activities. The exercise
of this discretion can be violated in two ways by authorities: firstly, the administrative
authority might fail to exercise the authority vested in it. Secondly, the authorities might
exercise this discretion incorrectly that is, with improper motives, bias or under the influence
of another body. The latter case amounts to abuse of administrative discretion and shall be the
focus of this project.

I shall look into the various grounds on the basis of which abuse of administrative discretion
has been held by the courts. This project shall also delineate the origins of the jurisprudence
of abuse of administrative discretion in India gleaned from English case laws. I will look into
a multitude of Supreme Court case laws which have expounded the various actions that
amount to ‘abuse’ such as mala fides, improper purpose, taking irrelevant considerations,
colourable exercise of power and unreasonableness among others. Finally, I will look into the
tools devised by the courts to check the discretion vested in administrative authorities.

Indian Approach To Abuse Of Discretion

Indian Law has delineated a myriad of ways in administrative discretion can be accosted. One
such way is regarding a discretionary act as mala fide.

Mala Fides

Mala fides by definition implies something done in bad faith, with a deliberate and fraudulent
motive and dishonest intention.Indian Law had interpreted it both widely as well as narrowly.
Earlier it was believed that there was no element of moral turpitude involved in mala fide
action and all that was required was the deviation from the spirit of the statute and acting in a
way, foreign to its purpose.I will deal with this interpretation as a separate head later. Mala
fide can be understood in a narrower sense and be given its tradition meaning of referring to
bad faith, dishonest and corrupt motives. It stems from personal animosity and
vindictiveness.

Mala fide should not be confused with bias as the latter is a wider concept and mostly used in
administrative concept. No element on turpitude is attached to it as in the case of mala

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fide.Further, mala fide is not similar to the concept of ultra vires as in the latter, the making
of the decision itself is precluded by Law. On the other hand, while decision-making in mala
fides is allowed, the nature of the decision can be challenged owing to be in bad faith. Malice
may be on fact or on law. In the former, there is room for personal animosity whereas in the
latter, action is taken without a just or reasonable cause. To check whether an action is mala
fide, the courts must look into the manner of decision-making and the circumstances in which
it is made.

Instances of mala fide action being struck down are numerous. In the case of Pritpal Singh v.
State of Haryana6,the appointment of 62 sub-inspectors was struck down owing to
numerous discrepancies in the selection process. Discrepancies such as examination sheets
being destroyed, prior to a policy for the same being passed as well as non-presentation of the
selection panel’s scores confirmed the court’s view.

Proving mala fides is quite a task as the court mandates that conclusive proof must be given
of the same. The onus to do so falls on the person alleging mala fides. Further, the court has
held that broad allegations of mala fide will not be taken to establish the same. Since there is
a presumption that the administrative authority acted in good faith, the person alleging mala
fides must give conclusive proof of the same.

The matter of E.P. Royappa v. State of Tamil Nadu7 dealt with mala fide as a ground for
quashing administrative action. An IAS officer who was Chief Secretary in the State
Government challenged his transfer to a post of equal grade as being motivated by mala fide
intentions. The court ruled that even if suspicion is created of male fide actions in the
exercise of administrative discretion, only conclusive proof of the same can establish mala
fide action. This may be inferred from the course of events, utterances of the authority,
pleadings and affidavits among other sources.

G. Sadanandan v. State of Kerela8 is the best instance of administrative action being

checked on the grounds of it being mala fide in nature. The DSP (Civil Supplies Cell) passed
a detention order against a kerosene dealer on the grounds of operating without a license and
dealing in Kerosene illegally. It was alleged that the DSP was acting malafidely to drive the
appellant out of this trade as the DSP’s brother was a competitor in the same business. The

6
1994 SCC(5) 695.
7
Decided on 23rd November,1973.
8
Decided on February 16th,1966.

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DSP did not even file a counter-affidavit in court to counter the charges of mala fide action
against the Appellant. Due to these considerations, the court quashed the action.

Improper Purpose

A statute may confer discretionary powers upon an administrative authority in order to arrive
at a particular decision. However, this discretion is not unlimited and is restricted to the
purpose for which the statute is enacted and the ultimate aim it aims to achieve. The courts
can construe a purpose from the provisions of the statute where no aim is mentioned
expressly. In the modern period of time, there has been a huge growth in the activities that
fall under administrative action. Some authorities are granted a discretion in their functioning
which increased the scope of functioning. However, courts can limit this seemingly
unfettered power by checking the original intent of the statute in vesting the discretionary
power. The motive behind an administrative action should be in line with the statutory
objective.

This check is different from mala fides as here, there is no underlying element of malice,
caprice or animosity. This has been elucidated in S.R. Venkatraman v. Union of India
9
wherein under a statute; a public servant could be retired in public interest by taking assent
from the President. In the instant case, the Appellant was compulsorily retired on her
attaining the age of 50 years. She alleged that there was non-application of mind and that her
retirement was carried out for extraneous reasons, outside the scope of the statute. This was
established from the fact that there was nothing in her service record to justify premature
retirement. The court further held that in such a case where discretionary power is used for an
unauthorised purpose, the element of good faith or bad faith is irrelevant.

This was also seen in R.L. Arora v. State of Uttar Pradesh10 In this case, the Land
Acquisition Act, 1894 allowed to the State Government to give consent to acquisition of
property for industrial purpose if it proved useful to the public. The government here assented
to acquisition of property by textile factory. This was challenged on the grounds that the
government could not interpret the words of the statute and exercise discretion on the same as
well. The court held that the purpose of the statute was to allow acquisition when
construction of work after acquisition would lead to benefit of people. In this case, the benefit
would arise only after the industry is functioning and not during construction. Hence, the

9
Decided on November 2nd ,1978.
10
Decided on july 30th,1958

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order of the government was struck down on the grounds that it violated the mandate of the
legislation.

Irrelevant/Relevant Considerations

It is clear that discretion allows an authority to choose between alternative actions. However,
this discretion can only be exercise on relevant grounds. All discretionary actions must be in
conformance to the considerations laid down in the statute that granted discretion in the first
place. Placing reliance on extraneous grounds will vitiate the administrative action.The court
has some freedom in reviewing administrative action in this regard. When considerations are
laid down in the statute, the court can check for conformance. In case no considerations are
delineated, the court can look into the purposes and aim of the statute to fix consideration and
place fetters on the discretion allowed.

These considerations may be exhaustive depending on the language of the statute. In case
they are not, the court can add its own considerations.

This was laid down authoritatively in Barium Chemicals Ltd. v. Company Law
Board11. Under S.236 of the Companies Act, the CLB can order investigations into the
affairs of the company if the company is being conducted with the intention to defraud
creditors or the persons involved in management are guilty of fraud among other things or
full information regarding the firm has not been given. Investigation was ordered in the
instant case on the ground that there were continuous running losses owing to faulty planning
and various directors had left the board. This order was challenged and the court quashed the
order stating that these grounds were irrelevant and extraneous to the purpose enshrined in
the statute. They did not conform to the mandate of S.236.

The same position was reiterated in Rohtas Industries v. S.D. Agarwal12 wherein
investigation into the affairs of a firm was ordered on the grounds of one of its directors being
involved in several claims of misconduct as a member of other companies and also shares of
another company were being sold at an inadequate rate. These grounds were held to be flimsy
in order to seek investigation under S.237 of the Companies Act, 1956.

11
Decided on 7th October,1965.
12
1969 AIR 707.

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No Material

All discretionary action that is taken must be based on sound material and facts. There should
be application of mind even when discretion is vested in the authorities. This was held in the
Rohtas matter and the Venkatraman case where the orders of the authorities were vitiated
owing to be based on lack of material.

This is so as arriving at a decision on negligible grounds is an abuse of the discretion vested.

It stinks of arbitrariness and misuse of the authority given to an administrative body. This was
seen in the case of Raala Corp. v. Director of Enforcement13 which dealt with the
discretion vested in the Directorate of Enforcement to refer cases to Supreme Court where he
felt the punishment to be imposed was beyond his powers. This discretion was to be
exercised on the basis of sufficient material. However, in this case, the reference was made
even without holding any hearing and without reading any information. Hence, the Supreme
Court quashed the order.

Misdirection Of Law And Fact

Sometimes an authority may act beyond the scope of the powers given by the law. It may
make such mistakes owing to a misinterpretation of the law or a fact and thus, go beyond the
scope of the power vested in them. If such a mistake concerning the fetters placed by law is
made, it would vitiate the exercise of discretion.

The matter of M.A. Rasheed v. State of Kerela14 has laid this down most lucidly. The state
government came out with a notification in which consumption of coir by industries was
curtailed in favour of traditional sector. This use of discretion was challenged on the grounds
of reasonableness. The court established that as discretion gave room for subjective
satisfaction, the court could not blindly follow the authority’s reliance on facts and law to
arrive at a decision. Review was possible on the grounds of whether the authority had
construed these elements correctly.

13
14
Decided on September 18th ,1974.

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EXAMPLES OF ADMINISTRATIVE DISCRETION IN LAW
Goldberg v. Kelly15—In this 1970 case, City officials were administrating and terminating
public assistance benefits under the federally assisted program of Aid to Families with
Dependent Children (AFDC) and/or under New York State’s Home Relief Program in New
York City. The problem arose as residents receiving financial aid claimed that the New York
City officials overseeing and administering these programs terminated their aid without
notifying them or holding a hearing. Recipients alleged that this was unconstitutional on the
Administration's part because it denying them due process of law guaranteed under the Due
Process Clause in the Fourteenth Amendment (Case Briefs). In this case, Administrative
Discretion resulted in individualized parameters of what was deemed necessary to convey a
termination of aid, instead of a federal standard. The Holding of Chief Justice Warren Burger
and the court sided with the appellants' view: a full hearing of evidence is required before a
recipient can be denied/deprived of certain types of government benefits. In other words, a
recipient must receive some sort of notice should their aid be changed/terminated; whether in
writing or orally.

Industrial Union Department v. American Petroleum Institute16--In this 1980, Under the
INDIAN Occupational Safety and Health Act of 1970 (or OSHA), The Secretary of Labour
was required to explicitly state exposure risks/limits at the lowest level of carcinogens that
won't impair viability of the industries regulated. However, this failed to happen. The
Secretary did not say or record anywhere that exposure to the substance benzene at 10 ppm
(parts per million) would cause leaukemia and exposure to 1 ppm would not (Oyez cases).
The holding of the Supreme Court, under Justice Warren Burger, concluded that there was a
statute for a requirement of significant risk, and the Secretary and agency had failed to uphold
the statue of workers' health at risks.[13] In this case, Administrative Discretion under the
Secretary of Labour had not understood the "extent feasible".

Administrative Discretion in Criminal Law Enforcement-- When a government official of

law enforcement uses their own sense of ethical discretion such as not to or to invoke in
criminal process.There are two major situational motivations of police discretion; whether
police response is internally invoked or citizen initiated and whether it is a law enforcement
of order maintenance situation. The two situational motivations combine to create four types

15
397 US 254.
16
448 US 607.

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of discretionary situations for law enforcement officials. The four different situations are
proactive and reactive law enforcement and proactive and reactive order maintenance.

ADMINISTRATIVE DISCRETION AND FUNDAMENTAL

RIGHTS

 Article 14 of Constitution of India: Equality before law

 Article 19 of Constitution of India: Protection of certain rights regarding freedom of
speech, etc.
 Article 31(2) of Constitution of India: Compulsory acquisition of property

 Kathi Ranning vs State of Saurashtra17: Section 11 of Saurashtra State Public Safety

Measures Ordinance, 1948 as amended was upheld as the preamble of the Act stated the
policy was to provide for security of the State, maintenance of public order and
maintenance of supplies and services essential to the community in the state of
Saurashtra.
 Kedar Nath vs State of West Bengal18: There may be endless variations from cases in
the facts and circumstances of the same type of offenses, and in many of those cases there
may be nothing that justifies or calls for the application of the provisions of the special
Act.
 Tika Ram Ji vs State of UP19: Where the statute confers wide powers and at the same
time provides procedural safeguard against arbitrary exercise of power, it would uphold
such powers. In the case, the court held that the power was not to be bad under Article 14
as it confers safeguards against its exercise in a discriminatory manner.
 Bishwambhar vs State of Assam20:In a case related to an Act allowing the State
Government to take estate from Zamindars
 , the court held that all estates could not be taken over at once owing to financial
difficulties and therefore, from the very nature of the things it was necessary to give
'certain amount of discretionary latitude to the State Government'.

17
AIR 1952 SC 123
18
AIR 1953 SC 409
19
AIR 1956 SC 676
20
AIR 1954 SC 139

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DISADVANTAGES OF CONFERING DISCRETION

From the point of view of the individual however there are several disadvantages in the
administration following the incremental approach as compared with the adoption of a
general rule applicable to all similar cases.

1. A general rule usually avoids retroactivity and operates in future so that one has prior
notice of the rules and thus may regulate his conduct accordingly. In case to case approach
the individual may be caught by surprise and may not be able to adjust his affairs in the
absence of his ability to foresee future administrative action.

2. Case to Case approach involves the danger of discrimination there arises a possibility of
not getting like treatment under like circumstances i.e. unlike treatment for likes.

3.The process is time consuming and involves decision in a multiplicity of cases, also there is
danger of abuse of discretion by administrative officials.

The broader the discretion the greater the chance of its abuse. In the words of Justice
Douglas. (U.S. v. Wonderluck21) 'Where discretion is absolute, man has always
suffered….absolute discretion is more destructive of freedom than any of man’s other
inventions and also absolute discretion, like corruption marks the end of liberty.

It thus becomes necessary to devise ways and means to minimise the danger of absolute
discretion. To achieve such on objective a multi prolonged strategy has to be adopted. A
general rule is to be preferred to the case to case approach and ought to be adopted wherever
possible. It is desirable to have administrative uniformity to the extent possible, because as a
matter of general principle substantial lack of uniformity would lead not only to
administrative chaos but also to collapse of public confidence in administrative fairness. In
any individual case it is highly relevant to lake in to account what has been done in other
cases of similar nature otherwise a decision may result which could be regarded as being
improper or discriminatory. There are several possible way in which this objective on be
achieved.

1. The law conferring discretion may itself seek to lay down the elements and standards
which the authority has to apply in exercising its discretion and selecting a course of action.

21
342 US 98.

15
This means that the degree of discretion should be restricted by law itself as far as possible or
in other words discretion should be properly combined and structured.

2. When the legislature fails to lay down standards, the administration can seek to lay down
the standard using its powers of delegated legislation. The power of delegated legislation can
be used by administration to lay down rules of conduct observable not only by people but
also by administration itself in a given situation.

3. On a lower plane to some extent, administrative directions and norms of practice can be
used instead of the rules, for the purpose of achieving uniformity in discretionary decisions,
but these should be resorted to only when the scheme is too much in an experimental stage
and constant adjustments may have to be made for some times to come. Otherwise rules are
preferable to directions as they can be enforced judicially.

Not all acts of the administration can be bound by fixed rules. Many a time it may not be
possible to prescribe intelligible standards for the administrator to follow. All these
considerations make it inevitable that discretion be vested in the administration to take care of
individual cases. But it also brings in the question of judicial and other control over
discretions any power.

The judicial control has two facets:

1. To compel the legislature to desist from conferring too broad or uncontrolled discretionary
powers. In India the courts have sought to spell out some limits on conferment of broad
discretionary power by invoking the fundamental right guaranteed by the constitution. This
may involve some substantive and procedural safeguards in the exercise of power.

2.There is need to have some post decisional review mechanism to ensure that administrative
authorities discharge their function according to law and within legal limits express or
implied.

In addition resort is being increasingly had for this purpose to such institution as tribunals and
ombudsman.There is growing realization that such power are necessary to achieve a just
social order and to make rule of law a positive reality of course that does not mean that the
administration must be given unlimited and necessary discretion, nor does it mean that the
administration must be for from all limitations in the exercise of the discretion.

16
Through a series of judicial decisions and juristic writing since the beginning of the last
century it has become a well-established proposition of law that in a constitutional state based
upon the rule of law does not mean discretion free from all legal limits. It is judicious
discretion to be exercised for the purpose for which it is granted and the legal limits which
apply to its exercise have to be observed.

JUDICIAL CONTROL AND EXERCISE OF DISCRETION

The transformation of the philosophy of state in the twentieth century from lassie faire to
welfare has augmented the state’s responsibility towards its subjects. There is no modern
state in this epoch which can execute such innumerable functions devoid of any discretionary
power of its own. India being a welfare democratic state is no exception to this procedure and
therefore, administrators are bestowed with greater power and authority to meet the goals of a
welfare state. Justice Bhagwati in R. D. Shetty v. International Airport Authority of
India22 , in the obiter dicta has said that, “exercise of discretion is an inseparable part of
sound administration and, therefore, the State which is itself a creation of Constitution,
cannot shed its limitation at any sphere of state activity."

Art of governance is complex and with unlimited usage of such power would definitely leave
a vacuum where arbitrariness can germinate. Therefore a yardstick of its use is necessary.
‘Discretion suggests choosing one option from several options without any pre-determined
criterion. As soon as the word ‘discretion’ is added with the word ‘administrative’, its use
becomes qualified. Its exercise has to be with reference to the rule of reason and justice and
not according to one’s personal whims.’ Any use which has an ambition of personal gain or
personal satisfaction is prohibited by the rule of law.

The grant of this discretion by the country’s legislature is well intended and bona fide but still
knowing the darker side of this power, the Judiciary of this country has been trying to
circumvent its misuse and abuse. The judiciary, being the watch dog of our rights, has its
control over this administrative power in two different stages. Firstly, when it is granted to
the administrative authority by our legislature and secondly, when it is at the stage of being
used by the administrative authorities. However, for the purpose of this project only the
second point would be discussed in details.
22
AIR 1979 SC 1628.

17
Why Is Judicial Control Necessary?

Judicial review is the soul of our constitution. It is the exercise of the court’s inherent power
to resolve whether an action is lawful or not. ‘It holds the balance of power between
individuals and the government. It legitimizes the application of administrative sanctions.’

In India, judicial review has a firm base. The framers of our constitution had not only
believed in limited government was necessary for democracy but also enshrined the
philosophy in the constitution. It is a modus operandi for public accountability of the
administrative process. In this process, it principally maneuvers as a check upon the
administrative branch of the government and the agencies operating, thereunder. ‘According
to Schwartz, the basic remedy against illegal administrative actions is the judicial review. A
person aggrieved by an agency decision or other act may challenge its illegality in the
courts.’Without, judicial review, administrative action and discretion would be limited only
by agency, self-discipline, executive direction, or legislative and public pressure. Thus this
control acts as a limitation on nasty abuses of power.

Courts in India are the guardians of our constitution. From time immemorial, they have
believed that executive and legislative powers which are immune from judicial scrutiny are in
a way repudiation of rule of law. Therefore for the purpose of doing justice and to protect the
Rule of Law, they through their various pronouncements, have build up an assortment of
formulations to control the exercise of administrative discretion. After clubbing these
formulations, we can summarize the judicial control at the stage of exercise of discretion by
the administrative authorities into two things:

1.That the authority is deemed not to have exercised its discretion at all.

2.That the authority has not exercised its discretion properly.

Failure To Exercise Discretion

‘The courts exercise judicial control if the administrative authority has either resigned from
using its power or has put restrictions on its implementations of the discretion or the
jurisdictional facts are either absent or have been erroneously concluded.’ In Indian Railway
Construction Co. Ltd. v. Ajay Kumar 23, the law has been made crystal clear. In this case
the Supreme Court held that in general, discretion must be exercised only be the authority to

23
2000 IAD DELHI 482.

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which it is committed. The authority must genuinely address itself to the matter before it; it
must not act under the dictates of another body or disable itself from exercising discretion in
each individual case. In the purported exercise of discretion, it must not do what it has been
forbidden to do, nor must it do what it has not been authorized to do. Judiciary can compel
the administrative authority to exercise the discretion but can not make them exercise it in a
particular way. There would be very few situations which would be discussed where there is
an occurrence of failure to exercise discretion. The following chapter has been divided into
two sections:

• Surrender, abdication or dictation of discretion- In Purtabpore Co. Ltd. V. Cane Commr.

Of Bihar24, the Cane Commissioner had the discretion to hold back sugarcane quarters for
the individual sugar factories. But instead of using the discretion by own will, he acted upon
the dictates of the Chief Minister. The commissioner excluded 99 villages from the area held
in reserve by him in favour of the appellant-company previously. The two judge bench of the
Supreme Court quashed the exercise of discretion by the Cane Commissioner on the ground
that he abdicated his power by exercising it at the dictation of C.M. Therefore, it was deemed
that the authority had not exercised its discretion at all. Thus, such so-called exercise of
discretion amounted to a failure to exercise discretion by the authority.

• Fettering of discretion- In Shri Rama Sugar Industries Ltd. v. State of Andhra

Pradesh25 , Sec-21 of the Andhra Pradesh Sugarcane (Regulation, Supply and Purchase) Act,
1961 gave discretion to the administrative authority to excuse any new factory from payment
of tax. The government framed a new policy granting exemption only to those factories in the
co-operative sector. The Supreme Court, held that the adoption of this policy has fettered the
exercise of discretion and said that an authority bestowed with such statutory discretion may
justifiably implement general rules or principles to channel itself in the exercise of its
discretion provided such rules are not arbitrary and not opposed to the objectives of the Act.
The court in addition said that by adopting such rules, the agency must not stop itself from
exercising authentic discretion in individual cases.

24
AIR 1969 ALL 105.
25
Decided on 17th December,1973.

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 CONCLUSION
If any one says that can we do away with administrative discretion then the answer is that it is
impossible. It is a price or collateral that we keep for getting governed in a better way. There
are numerous merits of administrative discretion. Firstly, they are very well acquainted with
the ground work of the issue. Therefore with this efficient knowledge comparatively, a better
outcome can be achieved. Secondly, to get the speedy and effective resolution of the dispute,
it is the easiest way to get it. Thirdly, to get effective results, the authority has to be
sanctioned with enough discretion then only this tortuous evil would turn into an instrument
of success in governance. Therefore, the utility of having such discretion is relatively
beneficial for the country.
But what if there is no judicial control at all over this discretionary power? The citizens
would be left without remedy if anything happens. Normally, it is suggested that while
granting discretionary powers to administrative authorities, there should be a broad
framework laid down by the legislature following which the administrative authorities would
disseminate their obligatory duties. But, even after that we would find various gaps being left
by the legislature; it is here that the courts play their most important role. They check that
these gaps don’t allow the administrative authorities to abuse the power.
The court while examining their right use of discretion would have to be very careful as it is
strictly prohibited to go into the merits of each case. It is however, allowed to look into the
manner in which the power was exercised. Practically, it is impossible for the courts to check
the manner of the exercise of powers without going into the merits of the case. A judge in
India has to decide a case "on the merits" when he/she bases the judgment on the elementary
issues and considers technical and procedural defenses as either unimportant or overcome.
Moreover, in India the jurisprudence follows that courts are not supposed to substitute their
own decision with administrative discretion. The courts in such cases make sure that the
administrative discretion is exercised, that to properly exercised. No individual’s fundamental
rights can be breached, not by any another individual nor even by the state. Courts have very
sternly believed in this theory and thus has successfully it put into work.
Despite this seemingly wide freedom, courts in India have taken a leaf from English courts in
that they have curtailed this discretionary power by ensuring that it is within the limits
prescribed by statute, is fair, just and based on relevant grounds and good faith. The courts, in
a gamut of aforementioned cases have made it clear that even when discretion is granted, its
abuse by authorities is not without redressal.
The abuse of administrative discretion takes a number of forms for instance, acting on mala
fide grounds, ignoring relevant considerations and acting on irrelevant ones, making
decisions without cogent material and misconstruing the power granted by law. Even though
the courts have established that interference in these decisions is permitted on certain
grounds, it still respects the process of decision making that the authorities indulge in. The
only check courts impose is that manner of making the decision be fair.
Finally, the court has developed various controls over discretionary action. Firstly, it ensures
that the action taken by the authority is not irrational and patently unreasonable such that no
reasonable person could be expected to arrive at the same decision. It ensures that the
authority acts within the limits of the statute and works in order to give the most effective and
just decision based on sound and irrefutable grounds. Secondly, the courts have employed the
English rule of Proportionality to ensure that the response of the authority to actions by
individuals is proportional and not grossly unjust.

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 BIBLIOGRAPHY

BOOKS:

 C.K.TAKWANI (LECTURES ON ADMINISTRATIVE LAW,SIXTH

EDITION,EASTERN BOOK COMPANY)

 I.P.MASSEY(ADMINISTRATIVE LAW,EASTERN BOOK COMPANY)

 H.W.R.WADE(ADMINISTRATIVE LAW,OXFORD PUBLICATIONS LONDON)

WEBSITES:

 https://cis-india.org/telecom/resources/trai-act-1997

 https://www.lawteacher.net/free-law-essays/constitutional-law/judicial-control-and-
exercise-of-discretion-constitutional-law-essay.php
 http://lawprojectsforfree.blogspot.in/2010/08/administrative-law-discretionary-
powers.html
 http://www.trai.gov.in/about-us/administrative-rules
 file:///C:/Users/naina/Desktop/Abuse%20of%20Administrative%20Discretion.html
 https://www.lawteacher.net/free-law-essays/administrative-law/the-abuse-of-
administrative-discretion-administrative-law-essay.php

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