Control of abuse of Administrative Discretion: Judicial Trends

Final Draft – Administrative Law

Submitted to:
Ankita Yadav & R.K yadav

Dr. Ram Manohar Lohiya National Law University, Lucknow

Submitted by:
Akarsh Chaudhary
3rd year Vth Semester
ROLL NO. 16
ENROLLMENT NO. 160101016

Dr. Ram Manohar Lohiya National University, Lucknow

ACKNOWLEDGMENT

This work at hand is not the work of the researcher alone. A debt of gratitude goes to my
Administrative law teacher Mr. Dr. R.K Yadav and Ankita yadav for guiding me whenever
help was required. Also, sincere thanks go to my colleagues for keeping the spirit of
competition alive in me. Lastly, I would also like to thank my seniors whose guidance helped
me to complete this research.
Table of Contents

Introduction ............................................................................................................................................. 4
Administrative Discretion ....................................................................................................................... 5
Justification of Court’s interference with the exercise of Discretionary power ...................................... 6
1. Failure to exercise discretion ................................................................................................... 7
2. Abuse of discretion .................................................................................................................... 8
Judicial Control: Discretionary Powers: ............................................................................................... 10
Extent of Review: ................................................................................................................................. 11
Conclusion: ........................................................................................................................................... 13
Bibliography ......................................................................................................................................... 14
Introduction

After independence, the expanding horizons in the administrative sphere, the problems of
administrative abuse with increasing severity, have witnessed in succeeding decades
acceleration in the process of degeneration in our socio-economic-political and administrative
scenario. Today the situation has become so alarming that even the law and order situation in
many parts of the country, rural as well as urban, presents a depressing picture. There are
many burning issues such as propriety in the exercise of administrative discretion; paralysis
of political will and capacity for decision making; mounting administrative corruption and
political venality, leading to erosion in the credibility and effectiveness of democratic
institutions which has become an intrinsic part of administrative procedure.1

As a consequence of the thrust of the welfare provisions in the constitution of India there has
been a tremendous growth in the discretionary powers of the public authorities at both central
and the state level. Vast powers vested not only in the central and the state government but
also in the myriads of the other authorities created by them. Power has one characteristic – it
is liable to abuse. This is inherent in every power. Therefore there must exist some means to
control the abuse of power in every system.

The Constitution of India provides powerful remedies of the judicial review of the
administrative actions. But judicial remedies by the themselves are inadequate. They must be
reinforced by the political will. After the commencement of the constitution, the governments
were in the hands of able and great statesmen. In fact the judiciary during these formative
times adopted a tolerant and positive approach towards the administrative actions.

In the recent past this state of affairs reached a dangerous stage where persons in high
authority were accused of abuse of power. During this period there has been a tremendous
expansion in the judicial control of the public authorities. The burgeoning function of the
administrative in the modern welfare state has increased the possibilities of the abuse of
discretionary powers at the hands of public authorities.2 Due to the acceptance of the
philosophy of “Welfare State” and complex socio economic condition, a phenomenon

1
Martin Shapiro, “Administrative Discretion: The Next Stage” Berkeley Law Scholarship Repository, available
at: http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=2706&context=facpubs (last visited 14
Mar, 2014)
2
Id.
generally discernible in democratic countries considerable increase of governmental function.
The administrative authorities had acquired vast discretionary powers and generally, exercise
of such powers is left to be subjective satisfaction of the administration without laying down
any statutory guideline or imposing any conditions on it. This matter brings forth in an acute
form the issued control of discretionary powers so that there may be a government of law and
not of men.

Administrative Discretion
Discretion implies power to make a choice betwen alternative courses of action. Coke once
said that discretion is a science or understanding to discern between false and truth, between
right and wrong and not to do according to will and private affections. Discretion in this
sense means choosing from amongst the various vaiable alternative 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. There is no set pattern of vesting
discretion in an administrative authority. Though it is true that with the exercise of discretion
from case to case, the said vague generalisations are reduced into more specific moulds
according to the fact situation as they arise yet the margin of oscillation is never eliminated.
In such a context the generality of law falters before the specific of life and therefore the need
of judicial review of unreasonable exercise of administrative discretion can not be
overemphasised.
In Sharp v. Wakefield3 : The meaning of discretion was explained as : Discretion means
when it is said that something is to be done within the discretion of authorities that something
is to be done according to the rules of reason and justice, not according to private opinion :
Rooke’s Case according to law and not humour. It is to be not arbitrary, vague & 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. Functions dischargeable by
the administration may either be ministerial or discretionary. A ministerial function is one
where the relevant law prescribes the duty to be performed by the concerned authority in
certain and specific terms leaving nothing to the discretion or judgement of the authority. It
does not involve investigation into disputed facts or making of choices. The authority
concerned acts in strict obedience to the law which imposes on it a simple and definite duty

3
(1891) AC 173
in respect of which it has no choice. According to Keir and Lawson4: “Many of the acts
performed by public authorities or public officers are done in strict obedience to rules of
statute or common law which impose on them a simple and definite duty in respect of which
they have no choice.”
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. It is realised that a government having only ministerial
duties with no discretionary functions will be extremely rigid and unworkable and that, to
some extent, officials must be allowed a choice as to when, how, and whether they will act.
The reason for this attitude is that, more often than not, the administration is required to
handle intricate problems which involve investigation of facts, making of choices and
exercise of discretion before deciding upon what action to take. Thus, the modern tendency is
to leave a large amount of discretion with various authorities. Discretion implies power to
make a choice between alternative courses of action.

There are at least four goods reasons for conferring discretion on administrative authorities:
(a) The present-day problems which the administration is called upon to deal with are of
complex and varying nature and it is difficult to comprehend them all within the scope of
general rules. (b) Most of the problems are new, practically of the first impression. Lack of
any previous experience to deal with them does not warrant the adoption of general rules (c)
It is not always possible to foresee each and very problem but when a problem arises it must
in any case be solved by the administration in spite of the absence of specific rules applicable
to the situation. (d) Circumstances differ from case to case so that applying one rule
mechanically to all cases may itself result in injustice. From the point of view of the
individual, however, there are several disadvantages in the administration following the case
to case approach as compared with the adoption of a general rule applicable to all similar
cases.

Justification of Court’s interference with the exercise of Discretionary power

4
D. L. Keir and F. H. Lawson “Cases in Constitutional Law” available at <
http://journals.cambridge.org/action/displayAbstract;jsessionid=780160E16BB8B16EC70FDFFE91C57007.jou
rnals?fromPage=online&aid=3053000> (last visited 14 Mar, 2014)
As regards India, the Courts justify interference with discretionary power exercised by the
administration in the following circumstances:

1. Failure to exercise discretion

Discretion is conferred on the administration on the assumption that it will exercised the same
to the facts and circumstances of the case in hand. If there is failure on the part of the
administration to exercise discretion, the action will be bad. The circumstances giving rise to
such type of flaw are following:
(a) Acting Mechanically:
Statutory discretion can not be said to have been exercised by an authority when it passes an
order mechanically without considering law and circumstances of each case. Such a situation
may happen when the authority had taken only one view of its power or has become lazy or
has relied on its subordinates.
(b) Abdication of Function:
A situation may happen that discretion has been conferred on an authority but it leavces it to
be exercised by the subordinates without acting itself. In such a fact of situation an order
made by the subordinate is bad. A situation of abdication of functions arose in Manik
Chandra V. State5, wherethe scheme of nationalisation of certain bus routes was published by
the Manager of the State Road Transport Corporation without the corporation itself
considering the scheme, through the relevant statute provided that it was the corporation
which was to consider the scheme.

(c) Imposing fetters on the exercise of discretion:

An authority having discretion must exercise the same after considering individual cases.
However, there is failure to exercise discretion on the part of the authority concerned. If
instead, that authority imposes fetters on its discretion by adopting fixed rules of policy to be
applied in all cases coming before it. What is expected of the authority is that it must consider
facts of each case, apply mind and decide the same on merits. If any general rules are
pronounced to be applied in all cases, there is no question of considering the facts of an
individual case at all and exercising discretion bythe authority.
(d) Acting under dictation:

5
1989 CriLJ 1495
Sometimes, it so happens that an authroity entrusted with discretion does not exercise the
discretion but acts under the dictation by a superior authority. In law, such a situation
amounts to non exercise of its discretion by the authority and is bad. Although the authority
purports to act on its own but in effect the power is exercised by another. The authority
concerned does not apply its mind and take action on its own judgement even through it was
so intended by the statutes.
(e) Non-application of mind:
Where an authority is given discretion, the said authority, must exercise the same after
applying its mind to the facts and circumstances of the czase in hand. If this requirement isnot
satisfied, there is a clear case of non-application of mind on the part of the authority
concerned. Such a flaw may arise where the authority might be acting merchanically, without
due care and caution or without a sense of responsibility in exercise of its discretion. In such
a situation also there is failute to exercise discretion and the action is bad.

2. Abuse of discretion

When discretionary power is conferred on an administrative authority, it is required to be

exercised according to law. But as Markose6 remarks, when the mode of exercising a valid
power is improper or unreasonable, there is an abuse of power. There are various forms of
abuse of discretion. The circumstances from which abuse of discretion may be inferred are
following:
(a) Exceeding Jurisdiction:
An administrative authority is required to exercise discretionary power within the limits of
the statute. An action or decision going beond what is authorised by law is ultra vires. For
example: if the administrative authority is empowered to control the price of bread it will be
in excess of its jurisdiction to control the price of butter. The entire order will be ultra vires
and void for exceeding jurisdiction.
(b) Irrelevant considerations:
A discretionary power conferred on an administrative authority by a statute must be exercised
on relevant and not on irrelevant extraneous considerations. It means that the power must be
exercised on considerations relevant to the purpose for which it is conferred. If the authority

6
Charles H. Koch Jr., “Judicial Review of Administrative Discretion” William & Mary Law School Scholarship
Repository available at < http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1569&context=facpubs>
(last visited 15 Mar, 2014)
takes into account wholly irrelevant or extraneous circumstances, the exercise of power by
the authority will be ultra vires and the action bad.
Thus, in Ram Manohar Lohia V/s. State of Bihar7, Under the Defence of India Rules the
authority was empowered to detain a person to prevent subversion of Public order. The
petitioner was detained with the view to prevent him from acting in a manner prejudicial to
the maintenance of law and order. The Court set asides order of detention. In the opinion of
the Court, the concept of law and order was wider than the concept of public order.
(c) Leaving Out relevant considerations:
If the administrative authority fails to take into account relevant consideration, the exercise of
power would be bad. It is very difficult to prove that certain relevant factors have not been
taken into consideration by the authority. However, it can be inferred from detailed reasons
given in the impugned order. Sometims, the relevant considerations are prescribed by
the statute itself e.g. “regard shall be had to” Must have” regards to” etc.:
Thus the matter so specified must be taken into consideration. In Rampur Distillery Co. V.
Company Law Board8, the Company Law Board acting under section 326 of the Companies
Act, 1956 refused to give its approval for renewing the managing agency of the company.
The reason given by the Board by its action was that Vivian Bose Commission had harshly
criticised the dealings of the Managing Director Mr. Dalmia. The Court conceded that the
past conduct of the Directors was a relevant consideration, but before taking a final decision.
It should take into account their present acts also which were relevant factors in judging
suitability.
(d) Mixed considerations:
Sometimes, it so happens that the order is not wholly based on irrelevant of extraneous
considerations. It is founded partlyon relevant and existent consideraions and partly on
irrelevant or non existent considerations judicial pronouncements do not depict a uniform
approach on this point.
(e) Mala fide:
In its popular sense, mala fide means dishonest intention or corrupt motive. De Smith states
that “In relation to the exercise of statutory powers it may be said to comprise dishonesty (or
fraud) and malice. A power is exercised maliciously if its repository is motivated by personal
animosity towards those who are directly affected byits exercise. A power is exercised
fraudulently if its repository intends to achieve an object other than that for which
7
AIR 1966 SC 740
8
AIR 1970 SC 1789
he believes the power to have been conferred.”
(f) Improper purpose: Collateral purpose
If statutory power is conferred for one purpose but it is exercised for a different purpose, that
is abuse of power, the action maybe quashed. Improper purpose must be distinguished from
mala fide exercise of power. In the latter, personal ill-will or malice is present, whereas in the
former it maynot be so, and the action of the authority may be bonafide and honest but it may
be different from what is contemplated by the statute, soit may be set-aside.
(g) Colourable exercise of Power:
Where the authority resorts to exercise power ostensibly for the authorised and but in
realityfor some other purpose, it is called colourable exercise of power. Viewed in this light,
colourable exercise means that under the “colour” or “guise” of legality, the authority seeks
to do something which is not authorised by law in question. In this sense, “courable exercise
of Power” would not appear to be a distinct ground of judicial review of administrative
discretion but would be covered by the grounds already mentioned, viz. improper purpose or
irrelevant considerations.
h) Reasonable exercise of power:
A discretionary power conferred on an administrative authority is required to be exercised
reasonably. Where the power is exercised unreasonable there is abuse of power and the action
of the administrative authority will be ultra vires. The word ‘reasonable’ has in law the prime
facie meaning of reasonable in regard to those circumstances of which the actor, called on to
act reasonably, knows or ought to know.

Judicial Control: Discretionary Powers:

If complete freedom of action is given to the administration it would lead to the exercise of
powers in an arbitrary manner seriously threatening individual liberty. It is, therefore,
necessary to control “discretion” in some measure, to restrain it from turning into unrestricted
absolutism. The pattern of judicial review in this area reflects reconciliation of two
conflicting values. One, since the legislation has conferred power on an administrative
authority and courts have not been given power to hear appeals against its decision.9 It shows

9
Charles H. Koch Jr., “Judicial Review of Administrative Discretion” William & Mary Law School Scholarship
Repository available at < http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1569&context=facpubs>
that trust has been placed in the judgement of the authority instread of the courts. Two,
nevertheless, the authority must act within the bounds of law and power, and since the
legislature can not have intended that the executive be the final judge of the extent of its
own powers, the courts have to come into the picture to keep administration within the
confines of law. The negative position, namely what the courts would not do, may be
exained first. The basic principle is that the court would not interfere with, or probe into the
merits of, the exercise of discretion by an authority, as it is not a forum to hear appeals from
the decisions of the authority. They would not go into the question whether the opinion
formed by the concerned authority is right or wrong. The court does not substitue its own
views for that of the concerned authority. From the proposition that the courts do not proble
into the merits of an administrative decision it follows that where the authority has not acted
according to law, the court would merely quash the administrative action in question but not
direct the authority to act in a particular manner. Thus, where an authority issued a permit for
one year, while the statute required renewal of the permit for a period between three to five
years, the court could onlydirect the authority to grant the renewal of the permit for a period
anywhere between there to five years without itself specifying the period. However, in case
where the range of discretion has been cut down to such an extent, that only one decision is
possible, the court may specifically direct the authority to act in that particular way.

Extent of Review:
Whatever has been said above sould not, however, lead one to suppose that discretionary
administrative powers are completely beyond the pale of judicial control. It is not so. A
discretionary power is not completely discretionary in the sense of being entirely
uncontrolled. The courts have rejected the concept of an absolute and unfettered statutory
discretion. Even when a statute uses words so as to confer ex facie an “absolute discretion”
on the administrative authority concerned, the discretion can never to be regarded as
unfettred. It is an eternal principle of administrative law that there is nothing like unfettered
discretion immune from judical reviewability. As Krishna Iyer, J. has emphasized that
“absolute power is anathema under our constitutional order” and that naked and arbitrary
exercise of power is bad in law”.10 Thus, it is now very well accepted that even when
adiscretionary power seemingly appears to be uncontrolled, actually it is not so and it will be

(last visited 15 Mar, 2014)

10
M.P Jain, “Principles of Administrative law in India” (6th ed. 2013)
subject to the limitations which courts will imply therein. The Courts have expounded certain
propositions, and taken recourse to certain principles or tests to control discretionary powers
in certain situations and contingencies. Primarily, the courts seek to ensure that discretion is
exercised by the authority concerned according to law. It is regarded as the first principle of
any jurisprudence based on the rule of law that the executive should not exceed its powers.
This is the principle of ultra vires. In course of time, the courts have given an extended
meaning to the ultra vires doctrine in order to be able to control the discretionary decitions or
administrative authorities Even though the legislature may confer discretion on the executive,
it can not be said to have intended that the executive should be the sole judge of the extent of
its own power. If the executive were to determine not only as to how it would exercise its
power, but also the scope of its power, it would come to enjoy a completely uncanalised
power, and there would be a negation of the rule of law, It is, therefore, the duty of teh
courts to see that an administrative body does not exceed its power, or go beyond the
authority of law. The judicial power of interference with the exercise of administrative power
on the ground of “an authority acting contrary to law” has been found to have enough
flexibility to check abuse of discretion in several directions.11 Neverthless, it needs to be
emphasised at the outset that in spite of all the inroads which the courts have been able to
make in the citadel of discretionary powers in the totality of the administrative process, the
courts on the whole, still exercise only a marginal control over the discretionary powers of
the administration. As a question of semantics, is the sole basis of judicial review of
administrative discretion ultra vires or can the different categories of review power be
regarded as independent categories ? This problem may particularly arise in cases of bad faith
(or malafides), or when it is said that the authority ought to act in accordance with law or
reasonably. The view prevailing in common law countries is that all these grounds emanate
from the doctrine of ultra vires taken in an extended sense. Offending acts are condemned
simply for the reason that they are unauthorised. The courts proceed on the assuption that
Parliament can not have intended to authorise unreasonable action and, accordingly, it is ultra
vires and void. Over the years the courts have shown a great deal of vitality in controlling
administrative discretion.

11
S.P Sathe, “Administrative law in India” (2010)
Conclusion:

According to Prof. Finer, the best way to enforce accountability is to develop institutions
those, vigorously monitor the actions of public bureaucracy and punish those guilty of
maladministration. In the absence of other controls, such as profit motive, policy makers must
monitor the performance of public administrators via formal mechanisms. It is necessary and
essential in the interest of democracy that good and proper controls to the discretionary
decisions of civil servants must be devised.
Therefore, the judicial remedies provides an effective mechanism against
this abuse. Generally, controls are of two types – external and internal. Among the two
controls executives responsibility to the legislature, legislative surveillance, judicial review,
audit system, financial advisory system in ministries, judicial system, ombudsman etc. are
examples of external formal controls. Whereas, the internal controls of formal type are
secured through organizational devices like hierarchy supervision, control, span of control,
unity of command, inspection, tours etc. These are in practice, reinforced and supplemented
by informal external devices such as mass media, political parties, interest groups, political
and electoral process, Comptroller and Auditor General (CAG) etc. existing in the society.
Beside this on the other hand, Carl Friedrich opines that inculcation of appropriate values
among administrators serves as the major check on the bureaucracy.
To talk of the judicial measures, the concept of of the judicial review proves to be potent
remedy to check the abuse of discretionary power. It also includes the suggestions of
Administrative Reforms Commission, law Commission etc.
Bibliography

Books

S.P Sathe, “Administrative law in India” (2010)

M.P Jain, “Principles of Administrative law in India” (6th ed. 2013)
Articles

Charles H. Koch Jr., “Judicial Review of Administrative Discretion” William & Mary Law
School Scholarship Repository
D. L. Keir and F. H. Lawson “Cases in Constitutional Law”

Web Sources
Manupatra
Scconline
heinonline