ASSIGNMENT ON THE TOPIC OF PROCEDURAL IMPROPRIETY

AND ADMINISTRATIVE DISCRETION

SUBMITTED BY: SUBMITTED TO:

ABHYUDAYA RAJ MISHRA DR. ALOK KUMAR
BBA LLB HONS 4TH SEM DEAN, STUDENT WELFARE
1120192003 HPNLU, SHIMLA

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 ACKNOWLEDGMENT

I wish to express my sincere gratitude to sir Dr. Alok Kumar, Dean of student welfare at
HPNLU, for providing me this opportunity to enhance my skills concerning Administrative
Law. I am highly indebted to him for guidance, comments, and suggestions, which helped me
tremendously throughout this assignment's completion.
I would also like to thanks my classmates and seniors for continually motivating and
supporting me during this assignment.

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 TABLE OF CONTENTS

1- Introduction
1.1 Scope
1.2 Objective
1.3 Research Methodology
2- Administrative Discretion
2.1 Reasons for Discretion

3- Judicial Review
3.1 Judicial Review in the United States
3.2 Judicial Review in the UK
3.3 Judicial Review in India
3.4 Why Judicial Review is important in Administrative Discretion
3.4 Procedural Impropriety

4- Conclsuion

5- Bibliography

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 INTRODUCTION

The meaning of administrative Law can be defined as the Law that governs the administrative
action of the State. It expanded and evolved in the 20th century. It determines the organization
and power structure of administration and quasi-judicial authorities to enforce the Law.
"Administrative law is concerned with the composition of powers, duties, rights, and
liabilities of the various organs of the government."
It is believed that this Law developed in the 20th century, and it is a Public law like the
Constitution of India. It lays down the method and procedure to be followed by the
administrative organs during remedies available to a person whose rights have been infringed
at any point in time.
The working of any administrative organs necessarily depends upon the Discretion.
Therefore, it explains why administrative organs require discretionary power for the smooth
functioning of state affairs. It is pertinent to note here that though discretionary powers are
necessary, they need to be regulated. Therefore, the role played by the constitutional
principles in handling discretionary powers is enormous. Discretion is classified to mean an
option or alternative, selection or election; hence the concept of Discretion implies the power
to choose between the alternative course of actions required at any point of time if only one
course of action is available, it doesn't necessarily come under the meaning of the
discretionary power.
Administrative organs of the State are either ministerial, where no alternative is available, or
discretionary with the known course of actions. A ministerial function is known as the
performance of duty in a specific and specified way where no other options available. The
officers perform many functions under the strict compliance of the statutes, which imposes on
them simple and definite duty in respect of which they have no other alternatives; they are the
ministerial functions.

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 SCOPE

The paper aims to analyze the meaning & nature of Administrative Discretion and procedural
Impropriety. The paper also differentiates between the Ministerial and Discretionary powers
under the Administrative Law. The paper further deals with the power of Judicial Review
with the help of Landmark case laws.

OBJECTIVE

The objective of the paper is as follows:

1- To ascertain the meaning of Discretionary power & Procedural Impropriety under
administrative Law.
2- To ascertain the meaning and significance of the Judicial reviews.
3- To discuss the grounds to challenge Administrative Discretion.

RESEARCH METHODOLOGY

Doctrinal research has been carried during this assignment, secondary and library-based
resources, including various online articles, have been utilized, and no empirical data has
been collected.

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ADMINISTRATIVE DISCRETION:
According to COKE- Discretion is a science of understanding to differentiate or discern
falsity and truth between right and wrong and not to do according to will, not private
affection. 1This power of Discretion should be exercised independently by the administrative
authorities concerned with their assessment.
It should be noted that a statute conferring usually uses the words 'adequate', 'advisable',
'appropriate', 'beneficial', 'competent', 'convenient', 'expedient', 'equitable', 'far', 'reasonable',
'prejudicial', to safety an 'security', 'detrimental', 'necessary', 'wholesome', 'public purpose',
etc. or other opposite. All these words involve a matter of degree. Again an administrative
discretion must not be arbitrary or vague but legal and regular. Even the refusal to exercise
discretionary power in England imposes a duty to exercise it gives rise to damages. But in
India, there is no such law. But no doubt, an authority may be compelled in India to exercise
his Discretion where he has been express with such power, through courts.

Sharp V. Wakefield 2: The court held that Discretion means doing action according to rules of
reason and justice, not according to a private opinion regarding anything. This Discretion
should fall under the ambit of Law and not humor. This Discretion should not be arbitrary,
vague, and fanciful but should be legal and regular.
The first condition imposed on the exercise of Discretion is that the decision-maker should
apply his mind in any case and use judgment to reach a decision; he must not approach the
matter with a close mind and should give the verdict on merits. This discretionary power
should not be used in the furtherance of personal interests.

Reasons for Discretion: With the expansion of the function of the states, the delegation of vast
discretionary power on the administration has become critical; in fact, granting these powers in the
hand of administrative authorities is necessary for the adequate performance of their duties.
There are specific reasons for the grant of discretionary powers on the administration:

 The present-day problems that the administration is called upon to deal with are highly complex,
varying, and impossible to comprehend in advance. Therefore, it is affirmative to grant some
discretionary powers to the administrative authorities to perform their job efficiently in the
instant case.
 Most of the problems arising are first of their kind with no previous precedents. Lack of
experience to deal with them can complicate the enforceability of good governance by
the administration.
1
Rooke’s Case, [(1598) 5 C0. Rep. 99 B]
2
1891 AC 173

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  Though the legislatures perform exceptional jobs, they can't lay down the precise
standards for exercising the powers by the administration.
 Strict compliance, without the scope for the future perspectives, to the rules, sometimes
leads to injustice. Therefore elasticity is to be maintained so that future challenges can
be dealt with.

In contemporary times the omnipresent administration makes the people feel that they aren't
governed but administer in general.
Law commission has rightly observed that the amount of legislation enacted by the Union and States
impinges upon the people's lives in various ways and confer a great deal of the power on
administration. Therefore, there is a greater need for the enforcement of the rules of Law. The
executive may not be bleak of its monopoly of wisdom and its zeal for administrative efficiency
ulatvires.

STATE OF WEST BENGAL V. ANWAR ALI SARKAR: 3

In the instant case, Supreme Court by majority invalidated section 5(1) West Bengal Special
Courts Act, 1950 because it conferred arbitrary powers on Government to classify offenses
or classes of offenses or classes of cases or cases at its pleasure, without laying down any
policy or guidelines for the exercise of its Discretion by the Government in classifying the
offenses or cases. Moreover, reference in the preamble of this act to the need for the
speedier trial of offenses was found too vague, uncertain, and elusive to afford a basis for
the rational classification.

State of M.P. V. G.C. Mandawar: 4In the instant case, it was held that no law might be
struck down on the ground that it was different from the law in another state.

State of Maharastra V. Indian Hotel & Restaurants Assn.5 The classification between
three and more star hotels for a dance performance by the dancing girls was held invalidated
for having no relations with the ostensible object of the law promoting or protecting the
moral values.

3
AIR 1952 SC 75: 1952 SCR 284.
4
AIR 1954 SC 493: 1SCR 599.
5
(2013) 8 SCC 519.

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JUDICIAL REVIEW:

The term judicial review, in general, means the power of a court to review and potentially
strike down an act of legislature as unconstitutional and invalid. The court's" power of
judicial review has been culled out from the principle of checks and balances. The system of
checks and balances between the legislature and the executive on the one hand and the
judiciary, on the other hand, provides how mistakes committed by one are corrected by the
other and vice versa.6
It is pertinent to note here that there are three essential organs of State, i.e., Legislature,
Executive, and judiciary. They are supposed to work according to maintain the required
balance for the smooth functioning of the State. The power of judicial review is also
applicable for the administrative actions of the State, and those invalid actions can also be
declared invalid in the light of being unconstitutional of Ultra Vires. It is essential to
understand that there is a significant difference between the Judicial review and the right to
appeal in any case. Any court doesn't act as an appellate authority while adjudicating any
Judicial Review. In the case of Judicial review, the court finds out how the decision was
made. The superior court scrutinizes the whole decision-making process of the case in
question thoroughly. The phases are given on the decision made following Law law. If the
superior courts find that decision isn't made under the ambit of Law, it is not authorized to
create a new decision but sends the matter back to the decision-making authority.

Judicial Review in the United States:

The doctrine of judicial review in its modern sense originated in the United States. Moreover,
the practice of doctrine in the U.S. also influenced many countries in the world.
Marbury V. Madison 7 Chief Justice Marshall emphasized the judicial duty to pursue the
constitution if a statute conflicts with the federal constitution. Marshall further explained that
the phraseology of the U.S. constitution confirms and strengthens the principle that a law
repugnant to the constitution is void. Therefore, all courts and other departments are bound to
act under the constitution.8
Judicial review in the U.S. has become a very effective weapon to scrutinize all kinds of state
actions, legislative, executive, and administrative. Because of such power, U.S. Supreme
Court has made significant pronouncements and invalidated the state actions on the ground of
the due process clause.

6
A.S Anand,”Judicial Review-Judicial Activism-Need for Caution‟ in Lokendra Malik (ed), Judicial Activism in
India (Universal Law Publishing Co Pvt Ltd. 2013)

7
S US 137{1 Cr 137} {1803}
8
Advanced Constitutional Law Judicial review.
http://epgp.inflibnet.ac.in/epgpdata/uploads/epgp_content/law/14._advanced_constitutional_law/
05._judicial_review/et/7614_et_05_et.pdf

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Brown V. Board of Education:9 The Supreme Court invalidated laws dividing whites and
blacks and held that separate education facilities are discriminatory.

Judicial Review in the United Kingdom: The ambit of judicial review in the Uk is
narrower compared to the U.S. since Parliament is considered supreme there. The
parliamentary supremacy and the rule of Law empower the courts to compel the Government
to act within their limits framed by the constitution or legislation. Courts cant substitute their
views on the merits of the government action for those of Government. However, the courts
examine the act of public bodies and protect the will of the parliament.
Council of civil service union V Minister of civil service:10 the court classified the grounds
of judicial review under the three heads:
1- Illegality
2- Irrationality
3- Procedural Impropriety

Judicial review in India: The judiciary is considered the guardian of the Indian Constitution;
the courts can review all legislative enactments, executive and administrative actions. The
Indian Constitution provides for judicial review through articles 13,32,131-136,143, 226, and
246. In contrast to the judicial review of legislative action, the courts in India use judicial
review more against the excess administrative measures.11
Why Judicial Review is essential in Administrative Discretion: Judiciary can control or
review whenever there is any abuse of utilization of Discretion in the administrative work;
there are three main categories under which the judicial review over Administrative
Discretion can be exercised:
 Failure to exercise Discretion
 Abuse or misuse of Discretion
 Violation of fundamental rights.
These are three main scenarios where the judiciary utilizes Judicial review.

9
347 U.S. 483 {1954}
10
1985,AC 374
11
Advanced Constitutional Law Judicial review.
http://epgp.inflibnet.ac.in/epgpdata/uploads/epgp_content/law/14._advanced_constitutional_law/
05._judicial_review/et/7614_et_05_et.pdf

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Failure to Exercise the Discretion: whenever any authority fails to utilize the administrative
Discretion, then the judiciary can review the same under the following subheads;
1- Application of mind to facts & Circumstances: for every particular case, the
administrative authorities show to consider the facts and circumstances of the instant
case and then use its intellect to apply Discretion.

Emperor v. Subhnath Banerjee:12 in the present case, the home secretary issued the
preventive detention order without applying the mind, and the order was quashed.

2- Acting under direction/dictation: it is pertinent to note here that the administrative

Discretion by the authority should be used independently without any force or
compulsion from anyone if the same is used by any direction or dictation, same is not
valid.
Orient Paper Mills V. Union of India: 13 in the instant case, DSP got the power to levy the
excise duty tax, but instead of doing it himself, he has done this on reference with the
collector's order. So it was held invalid as the authority was given to DSP only. ( Discretion
by Authority itself.)

3- Consideration of the Factors of the Individual cases:

Keshavan Bhaskaran V. State of Kerala: there was a law in the State if any children aren't
completed 15 years of age he/she won't be eligible for the SSLC mark sheet; however, the
authority can use its discretionary powers from case to case basis. The administration made a
rule children over 13 years would be given a mark sheet; it was considered was Void as the
discretionary power provided to the authority was case to case, not a general rule, hence
Void.

4- Acting Mechanically (Non-Exercise of the Mind):

Jaganath V. State of Orrisa: it was held that the Discretion in the instant case wasn't
applied using the mind, very casually without due care and concern.

12
(1945) 7FCR 195.
13
1969 AIR 1970 SC 1498

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Procedural Impropriety: Failure to comply with procedures laid down by statute may
invalidate a decision. Procedural Impropriety encompasses two areas: failure to observe rules
laid down in Law; and a failure to follow the basic common-law rule of natural justice.
However, the courts are reluctant to set aside a decision on purely technical grounds;
traditionally, courts have tried to rationalize this by distinguishing between the mandatory
and directory procedural requirements by reference to the language of the governing statute.

Bradbury v Enfield London Borough Council: 14 The Education Act 1944 gave that, if an
education authority expects to build up new schools or stop to keep up existing schools,
notice should be given to the minister, following which, public notification should be
provided to permit invested individuals to remark. The Council penetrated the necessity of
public announcement, and the plaintiffs looked for an injunction. The Council asserted that
educational bedlam would happen on the off chance that they were needed to follow the
procedural requirements. That plea met with little compassion in court.

Aylesbury Mushroom case15 The court decided that the statutory requirements of
consultation with associations or affiliations which addressed substantial quantities of
individuals couldn't be kept away from my consultation with the most significant
representative body of all agricultural plant and ranger service industry, laborers – the Nation
Farmers' Union. The Board asserted that consultation with the Nation Farmers' Union
included consultation with all more modest representative bodies, a case dismissed by the
court. For genuine consultation to happen as per Law, there should be communication with
the representative associations and the chance to react to that, without which 'there can be no
consultation.' In Aylesbury Mushroom, the Mushroom Growers Association was not limited
by request, albeit the request stayed viable against the counseled individuals. It is a central
prerequisite of justice that, when a legal or administrative choice influences an individual's
advantages, the person has the chance both to know and to see any changes made and to settle
on portrayals to the chief to meet the claims. The standards of natural justice which the courts
impose contain two components:

 Audi alteram partem (hear both sides)

 Nemo judex in the Caucasus (there should be an absence of bias with no
person being judged in their cause).

14
[1967] 3 All ER 434
15
Agricultural Horticultural and Forestry Industry Training Board v Aylesbury Mushrooms Ltd (1972)

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Conclusion: From the discussion mentioned above, it is pertinent to note if the Discretion is
given to concerned authorities without any check and balances most of the time, it results in
either misuse or abuse of the power. The reasons for the Administrative Discretion are
explained in the assignment. Our Hon'ble courts have played a significant role from time to
time in deciding the various factors upon which the discretionary powers of the authorities
should be vested. The assignment explained the concept of Judicial review regarding the
U.K., U.S., and India. The importance of Judicial Review in administrative Discretion is
discussed with essential case laws. The assignment in the later stage dealt with the concept of
Procedural Impropriety, which is a valid ground for Judicial review of the administrative
decisions. It is observed under this concept how failure to comply with the principles laid
down by any statute results in the ground for the Judicial review. The principles of Natural
justice are also incorporated in our constitution under the Fundamental rights.
It can be further concluded that any Administrative Discretion without Judicial reviews may
result in abuse of power.

Bibliography:
1- VN Shukla, Constitution of India, 13th Edition, 2019.
2- Legal Service India - Law, Lawyers and Legal Resources
3- https://www.ebcreader.com.elibraryhpnlu.remotexs.in/library.php
4- http://www.manupatrafast.in.elibraryhpnlu.remotexs.in/pers/Personalized.aspx
5- https://lawtimesjournal.in/

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