A PROJECT

On
DISCRETIONARY POWER VESTED WITH THE JUDICIARY

2019-2020

Subject Name: Administrative Law

Supervised by: Submitted by:

Mr. AKSHAY JAIN BHASKAR SONI

ASST. PROF. OF LAW 7th semester, Sec-A

S.S. Jain Subodh Law College

Mansarovar, Jaipur
December, 2019
 DECLARATION

I hereby declare that the project entitled “DISCRETIONARY POWER VESTED WITH THE

JUDICIARY” is submitted by me in partial fulfillment of the requirements for award of the

degree of B.A. LL.B from S.S. Jain Subodh Law College, Mansarovar, Jaipur. It is a result of my

own work and efforts. Any material used or scripted herein by any other

author/researcher/commentator and used hereinafter has been thoroughly acknowledged. The

present work has not been accepted for any degree, and is also not being currently submitted for

any other degree.

BHASKAR SONI

2
 CERTIFICATE

To whomsoever it may concern This is to certify that, the research project titled

“DISCRETIONARY POWER VESTED WITH THE JUDICIARY” submitted by

BHASKAR SONI in fulfillment for the award of the degree of B.A.LLB at S.S JAIN SUBODH

LAW COLLEGE is the product of research carried out under my guidance and supervision.

Mr. AKSHAY JAIN

Asst. Prof. of Law

S.S. Jain Subodh Law College

3
 ACKNOWLEGDEMENT

A research work of such great scope and precision could never have been possible without great
co-operation from all sides. Contributions of various people have resulted in this effort. Firstly, I
would like to thank God for the knowledge he has bestowed upon me.

I would also like to take this opportunity to thank Mr. Akshay Jain
without whose valuable support and guidance, this project would have been impossible. I would
like to thank the library staff for having put up with my persistent queries and having helped me
out with the voluminous materials needed for this work. I would also like to thank my seniors for
having guided me and culminate this acknowledgement by thanking my friends for having kept
the flame of competition burning, which spurred me on through these days.

And finally my parents, who have been a support to me throughout my life and has helped me,
guided me to perform my best in all interests of my life, and all my elders who have always
inculcated the best of their qualities in me.

BHASKAR SONI

SEMESTER- VII

4
 TABLE OF CONTENTS

S.No. Particulars Page No

1. Declaration………………………………………………………02
2. Certificate…………………………………………………….….03
3. Acknowledgement……………………………………………….04
4. Introduction …………………..…………………………………06
5. Special Leave Petition..………………………………………....06
6. Supervisory Jurisdiction...…………………………………..…..08
7. Extraordinary remedies and ordinary remedies ……….....….....10
8. Conclusion…………………………………………………..…..11
9. Bibliography ……………………………………………………12

5
Discretionary Power vested with the
Judiciary
Introduction
Judicial discretion is the power of the judiciary to make some legal decisions according to
their discretion. Under the doctrine of the separation of powers, the ability of judges to exercise
discretion is an aspect of judicial independence. Where appropriate, judicial discretion allows a
judge to decide a legal case or matter within a range of possible decisions.
The power of judicial control is based on the fundamental principles that all the powers must be
exercised within the ambit of law, In this sense the basis of judicial review doctrine of intra vires.
In determining the validity of administrative action and decision, Courts exercise supervisory
jurisdiction and appellate jurisdiction as well.

groups:

The mechanism of judicial control of administrative action falls into three distinct

(i) Special Leave Petition.

(ii) Supervisory jurisdiction of High Court under Article 227.

(iii) Extraordinary remedies and ordinary remedies.

(i) Special Leave Petition

The power of judicial review conferred on the Supreme Court under Article 136 is special or
extraordinary in nature. This power is in the nature of a residuary reserve power of judicial
review. Article 136 lays down that the Supreme Court may, in its discretion grant special leave to
appeal from any judgment, decree, determination, sentence or order.

In any cause or matter passed or made by any Court or Tribunal, except any Court or Tribunal
constituted by or under any law relating to the Armed Forces. Since the Supreme court has been
invested with a plenary jurisdiction to hear appeals against the decision of Administrative
Tribunals and other adjudicating agencies, it is now regarded as an important mode of judicial
review of administrative adjudication. But this jurisdiction is Special and exercisable outside the
purview of ordinary law. The Court entertains special love only where the needs of justice
demand its interference.

6
The use of the term Tribunal in Article 136 is of very wide import. What constitutes a Tribunal
for the purpose of Article 136 is not certain from the decision of the Court It better to leave the
word free from bounds as else it would defeat the very purpose.

Generally the Court would look to the decision and where a decision has been given arbitrarily
and unfairly the Supreme Court would intervene. Fundamental aspects of the Jurisdiction under
Article 136 are being discussed as follows:

(a) Exercise of Discretion

Article 136 confers very broad discretionary power on the Supreme Court for entertaining leave
petition. It is the good sense of the Court which works as a safeguard. In Dhakeshwar Cotton
Mills Ltd. v. Commissioner of Income-tax, speaking for the Court, Mehar Chand Mahajan, C.J.
expounded the guidelines for the exercise of jurisdiction by the Court. The learned Editor of
Supreme Court Reports har summed up the same in the following words:

Sufficient safeguard and guarantee for the exercise of this power lie in the trun reposed by the
Constitution in the wisdom and sense of judges of the Supreme CA

(b) Tribunal
As shown above, Article 136 refers to tribunals the first question relevant to answer

is what is a tribunal ?

A tribunal is a statutory body which is invested with judicial power to adjudicate on question of
law or fact affecting the rights of citizens in judicial manner.

A number of adjudicatory bodies have been held to be tribunals and appeals have been heard
under this Article, for example, against determinations of Income Tax Appellate Tribunal,
Labour Tribunals, Election Commission, Railway Rates Tribunal, Custodian-General acting
under section of the Administration of Evacuee Property Act, the Appellate Collector of
Customs. Central Government exercising powers of revision under section 30 of the Mines and
Minerals (Regulation and Development) Act, 1957,29 and authority under the Payment of Wages
Act.30 The Court’s Power to grant special leave is not taken away even when it is declared by
law that the order or decision of the tribunal shall be conclusive.

(c) Grounds of Appeal

The question of grounds of appeal to the Supreme Court from tribunal has been considered by
the Court in a large number of cases. The Court’s approach has been conditioned by two main
considerations :

(i) The; Court’s jurisdiction under Article 136 is extraordinary and discretionary and as
such it should be used in exceptional circumstances;
(ii) The jurisdiction should be exercised whenever there is a miscarriage of justice.

7
the tribunal can generally be classified under the following

(i) where the tribunal has acted in excess of the jurisdiction conferred on it under

the law creating it or it has failed to exercise patent jurisdiction:

(ii) where the tribunal has acted illegally.

(iii) where there is an error of law.40

(iv) where the tribunal has erroneously applied the well accepted principles of jurisprudence.

(v) where the order of the tribunal is erroneous;

(vi) where the tribunal has acted against the principles of natural justice.

It is only when the above mentioned categories of grounds exist that interference by the Supreme
Court is called. The list of grounds is not exhaustive but merely illustrative.

(d) Reasons for decisions

Recording of reasons in support of decision is cosidered to be part of natural justice and the
Court has spelled out of Article 136 an obligation on a tribunal to give reasons for law. Its orders
on the plea that the Court cannot effectively exercise its appellate jurisdiction if a tribunal does
not give reasons for its decision. Where tribunal;s order is without reasons, it may be quashed or
it may be directed to rehear the matter and dispose it according to law.

(ii) Supervisory Jurisdiction

The power of judicial review which has been conferred on all the High Courts under Article 227
is supervisory in nature. Article 227 provides that every High Court shall have superintendence
over all Courts and tribunals throughout the territories in relation to which it exercises
jurisdiction. This supervisory power is both judicial and administrative in nature. The
supervisory jurisdiction conferred on the High Courts under Article 227 is in addition to the
power given under Article 226 to control inferior Courts or tribunals. The supervisory
jurisdiction extends to keeping the subordinate tribunals within limits of that authority and

8
ensuring that they obey the law.45 The power under the article can be exercised even in those
cases in which no appeal or revision lies to the High Court.

(A) Principles for exercise of supervisory power

The power of interference through superintendence under Article 227 is limited to

seeing that tribunal functions within the limits of its authority.47 The principal grounds for

interference, therefore, would be :

(i) Want or excess of jurisdiction:

(ii) Failure to exercise jurisdiction;

(iii) Violation of principles of natural justice:

(iv) Error of law apparent on the face of record.

(B) Range of supervisory power

There are no limits, fetters or restrictions placed on the power of superintendence in Article 227
and the underlying purpose seems to be to make the High Court the Custodian of all justice
within the territorial limits of its jurisdiction and to arm it with a weapon that could be wielded
for the purpose of seeing that justice meted out fairly and properly by the by a Constitutional
amendment, bodies mentioned therein. The jurisdiction cannot be limited or fettered by an Act,
except It should, However, be noted that in exercising supervisory power the High Coun does
not act as an appellate tribunal. It will not review or reweigh upon which determination of the
inferior tribunal purports to be based or to correct errors of ta even of law and to substitute its
own decision for that of the inferior Court or tribunals D.N. Banerji v. P.R. Mukherjee.54 the
question was whether on the facts of the case of dismissal of the employee was wrongful or
justified. The Supreme Court held that the High Court could not interfere with the decision of the
tribunal. A mere wrong decision with nothing more is not enough to attract the jurisdiction under
Article 227.5

(C) Alternative Remedy

The supervisory power under Article 227 is extraordinary in nature. It cannot be claimed as a
matter of right by the party. It is a matter of discretion of the High Court to exercise such power.
However, in normal course, when alternative remedy is available to the applicant, the High Court
may refuse to exercise the power. But, the existence of alternative remedy is not a constitutional
bar to the exercise of power under Article 227 when such an alternative remedy is not equally

9
efficacious, convenient, effective or speedy, the High Court may exercise powers under Article
227.

(D) Tribunals
The administrative and judicial control of the High Court is not only over Courts strictly so
called but also over tribunals which are not Courts in strict sense of the term. What are to be
considered as tribunals within the meaning of Article 227 ? The term tribunal has been used in
Article 136 also. It will not be unreasonable to suppose that the expression has the same meaning
in both the articles. Under Article 136, a body dealing with the rights of citizens will be regarded
as tribunal if it is under duty to act judicially and is invested with inherent judicial power of the
State. The following authorities have been held tribunals for the purpose of Article 227 :

(i) Election Tribunal.

(ii) Industrial Tribunal.

(iii) Revenue Tribunal.

(iv) Rent Control Authority.

(v) Custodian of Evacuee Property

(vi) Payment of Wages Authority.

(iii) Extraordinary Remedies and Ordinary Remedies

Judicial Control over administrative action is exercised through the constitutional extraordinary
remedies and statutory ordinary remedies as well. Provisions for extraordinary remedies have
been made under Articles 32 and 226 of the Constitution. For controlling administrative action
Supreme Court and High Court can issue the writs of habeas corpus, certiorari, prohibition,
mandamus and quo-warranto. In addition to this, Courts provide ordinary remedies also under
several statutes e.g., declaration, injunction, damages etc. Detailed discussion about these
remedies has been given in various chapters.

10
Conclusion

Judicial review, power of the courts of a country to examine the actions of the
legislative, executive, and administrative arms of the government and to determine whether such
actions are consistent with the constitution. Actions judged inconsistent are declared
unconstitutional and, therefore, null and void. The institution of judicial review in this sense
depends upon the existence of a written constitution.

Constitutional judicial review exists in several forms. In countries that follow U.S. practice (e.g.,
Kenya and New Zealand), judicial review can be exercised only in concrete cases or
controversies and only after the fact—i.e., only laws that are in effect or actions that have already
occurred can be found to be unconstitutional, and then only when they involve a specific dispute
between litigants. In France judicial review must take place in the abstract (i.e., in the absence of
an actual case or controversy) and before promulgation (i.e., before a challenged law has taken
effect). In other countries (e.g., Austria, Germany, South Korea, and Spain) courts can exercise
judicial review only after a law has taken effect, though they can do so either in the abstract or in
concrete cases. Systems of constitutional judicial review also differ in the extent to which they
allow courts to exercise it. For example, in the United States all courts have the power to
entertain claims of unconstitutionality, but in some countries (e.g., France, Germany, New
Zealand, and South Africa) only specialized constitutional courts can hear such claims.

11
 BIBLIOGRAPHY

Books and Websites Referred :-

 M. P. Jain, The Constitution of India, (7th ed. 2013, Lexis Nexis)

 V. N. Shukla, The Constitution of India, (12th ed. 2015, Eastern Law Publication)

 J.J.R Upadhyaya, The Administrative Law (9th ed. 2014, Central Law Agency)

12