HIMACHAL PRADESH NATIONAL LAW UNIVERSITY

‘FAILURE TO EXERCISE DISCRETION & JUDICIAL REVIEW IN

INDIA’

SUBMITTED BY SUBMITTED TO
MANVENDRA SINGH Dr. ALOK KUMAR
1020212224 ADMINISTRATIVE LAW
B.A. LL.B.(Hons) HPNLU Shimla
IVth semester
 ACKNOWLEDGMENT

I would like to express my special thanks to my instructor Dr. Alok Kumar as well as our Vice
chancellor Dr Nishtha Jaswal who gave me the golden opportunity to do this wonderful project
on the topic proposed, which also helped me do a lot of research and I came to know so many
new things for which I am very grateful.

Secondly, I would also like to thank my parents and the friends whom I found at this new place
who supported me a great deal within the short time frame to finalise this project.

At last I'd like to acknowledge myself for not giving up during dry runs of creativity and I hope
you’ll appreciate my efforts.

Thank you!

TABLE OF CONTENT

1. Cover

2. Acknowledgement

3. Table of Content

4. Introduction

5. Judicial Review: Failure to exercise discretion

6. Judicial Review in India

7. Conclusion
8. Bibliography
 INTRODUCTION

In today's culture, law is extremely vital. People have relinquished their rights and entered into
a contract with the government in which the government promises to safeguard them from
harm. This is Hobbes' theory known as the Social Contract Theory [1]. The law without justice
can become arbitrary and be exploited at this period of the Rule of Law. To provide a check
and balance on the power of each government department, we have implemented Judicial
Review. Judicial review is the procedure through which a court deems any statute that violates
the constitution to be unconstitutional. This characteristic was taken from the United States
Constitution. However, it took several years to correct this flaw in our constitution. In this
sense, the judiciary has played a significant role. Constitutional Amendments, legislative
activities, and laws passed by the legislature are all subject to judicial review.

The legislature, executive, and judiciary are the three branches of government in India. The
Legislature produces laws, the Executive executes/implements them, and the Judiciary checks
both of these organs to ensure that the laws being created and executed are not in violation of
the Indian Constitution. Separation of powers is a component of our constitution that allows
these organs to function within their defined parameters. The separation of powers is discussed
in Article 50 of the Indian Constitution.
Article 50 says “The State shall take steps to separate the judiciary from the executive in the
public services of the State.”

In comparison to the United States, where it was adopted, this principle is not strictly observed.
The American Constitution established the notion of judicial review. If the judiciary intervenes
in the Indian Constitution, it has the right to overturn any law approved by the legislature. The
judiciary has the power to declare any law approved by the legislature to be unconstitutional.
Any law passed by the parliament that abridges the right given on the people under Part 3 of
the constitution is void-ab-initio, according to Article 13(2) of the Indian Constitution. The
judiciary has the authority to interpret the Indian Constitution to its full extent.
The judiciary has the authority to interpret the Indian Constitution to its full extent. It is the
guardian of India's Constitution. Many articles grant judicial review power, including 13, 32,
131-136, 143, 226, 145, 246, 251, 254, and 372.

Article 372(1) refers to judicial review of pre-constitutional laws in effect prior to the start of
the Indian Constitution. Article 13(2) further states that any law passed by the legislature after
the constitution's inception would be ruled null and unconstitutional by the Court. The
Supreme Court and the High Court are believed to be the guarantors of constitutional rights.
If a person's fundamental right is violated, he or she may file a complaint with the court under
Article 32 or 226 of the constitution. Articles 251 and 254 state that if the union and state laws
are in conflict, the union law will prevail and the state law will be declared void.
 JUDICIAL REVIEW: FAILURE TO EXERCISE DISCRETION

Judicial review can be called on two grounds

(i) Failure to exercise discretion & (ii)
Excess or abuse of discretion.

“Susannah Sharp v. Wakefield”[2] was a case where the word discretion was examined.
"Discretion implies when anything is done within the discretion of authorities that something
is done according to the rule of reason and justice, not according to private opinion," the court
declared in this instance. Not according to humour, but according to the law. It should not be
arbitrary, ambiguous, or imaginative, but rather lawful and consistent. And everything has to
be within reason.

Failure to exercise discretion:

The main objective of discretionary power is that the authorities use it. If there is a failure to
exercise the power by the authorities, the action will be bad. The said thing may happen when
there is

1. Sub delegation
2. Imposing fetters on the discretion
3. Acting under dictation
4. Non-application of mind
5. Power coupled with duty
1. Sub Delegation

In principle, discretionary powers should be exercised solely by the authority to whom

they have been assigned. When a person's authority is restricted to him, it is because
his judgement is trusted, hence he must execute it personally unless he has been
specifically authorised to transfer it to others.
2. Imposing Fetters on the discretion

After examining particular instances, an authority having power must exercise the
same. Instead, if the authority restricts its discretion by adopting set policy norms that
must be followed in all situations, it will be a failure to exercise discretionary power.
This does not exclude the adoption of policies or the establishment of principles. This
means that, even if a broad policy is set, each situation should be evaluated individually.
In the case of “Shri Rama Sugar Industries Ltd. v. The State of A.P.”[3], the tax was
imposed on the purchase of sugarcane but the government was granted the authority to
exempt any new sugar factory from payment of tax for three years. The government,
however, exercising this power decided to grant such exemption only in favour of the
cooperative sector.
The said policy was challenged by the appellant. The decision was upheld by the
Constitution Bench, by the majority of 3:2. However, it is not to be noted that the
majority decision was not correct. In the same case the minority rightly observed, “In
fact, the Government, by making the policy decision, had shut its ears to the merits of
the individual applications.”

3. Acting under dictation

An authority entrusted with power does not always wield that power, but rather operates
on the orders of a higher authority. The authority imbued with the power seems to
operate independently, but the power is actually exerted by someone else. Even if the
legislation does not require it, the authority in question does not apply its mind and does
not act on its own judgement.
This equates to the authority not using its power, which is wrong. It is widely
established that allowing others' dictation to affect an authority's judgement is
tantamount to abdication and surrender of discretion. The power "acts ultra vires'' when
it "hands over its discretion to another entity." In the case of State of Uttar Pradesh v.
Dharmandar Prasad Singh [4], this was declared. Such a use of authority is illegal
under the law.
 Under the City of Bombay Police Act, 1902, the Commissioner of Police issued a
licence for the building of a film theatre in Commr. of Police v. Gordhandas Bhanji
Gordhandas [5]. However, he later cancelled it at the request of the State Government.
The Supreme Court overturned the licence termination ruling because the
Commissioner had only acted as a government agent.

4. Non-application of mind

When an authority is given discretionary powers, that authority must employ those
powers after considering the facts and circumstances of the matter at hand. If this
requirement is not met, there is a manifest lack of mental application on the side of the
authority in question.
As a result, there is a lack of discretion in this case, and the conduct is negative. An
order of preventive detention was overturned in "Emperor v. Sibnath Banerji" [6]
because it had been issued routinely on the suggestion of police officials, and the Home
Secretary himself had not applied his thoughts and convinced himself if the impugned
order was required or not.

5. Power coupled with duty

Apart from statutory or administrative discretionary powers, the law also imposes a
‘statutory duty’ to be discharged towards citizens in order to achieve the object of an
act.
In the case of “R. v. Metropolitan Police Commissioner” (1968) [7] the court held that
the Transport authority was bound to renew the licence of taxi-drivers if few conditions
were met.
In the case of “R. v. Newcastle-upon-tyne corp” (1889) [8] the court held that the local
authority is bound to approve building plans if such plan is in conformity with relevant
bye-laws.
 JUDICIAL REVIEW IN INDIA

Judicial review is considered as a fundamental and basic prerequisite for the development of a
new civilisation in order to protect individual liberty and rights. The Supreme Court of India
and the High Courts of India have extensive judicial review powers.

The right to judicial review was described in Part III of Article 13 of the Indian Constitution as
a fundamental right. It is declared that the State or the Union shall not enact any regulations
that deny or limit the people's fundamental rights. Any law passed by Parliament or the State
Legislature that is in violation of the provisions of this Article is null and invalid.

Judicial review & Constitution of India

The Constitution of India has granted the Higher Courts and the Supreme Court of India powers
to examine the constitutionality of administrative action and legislation. The major goals of
judicial review are to protect public rights and to implement basic rights. If a conflict emerges
between the State and the Centre, Article 246 and Schedule 7 of the Constitution have
established a working zone for the formulation of regulations between the two.

CASE LAWS FOR JUDICIAL REVIEW IN INDIA

1. Shankari Prasad vs Union of India AIR 1951 [9]

The Zamindars challenged the constitutional validity of the First Amendment Act 1951,
claiming that it violated basic rights and Article 13(2) of the Indian Constitution, and
that Article 31 was unconstitutional. The court determined that any alteration made
under Article 368 does not qualify as a law under Article 13 of the constitution. As a
result, the First Amendment Act is constitutional. Following this case, the Fourth
Amendment Act was enacted, which included Article 31(2A), which specified that
there would be no compensation unless the land acquired was given to the state or a
 state business. It further stated that the sufficiency of compensation set by law is not a
non-justiciable issue.
Further the 17th Amendment came in 1964 which was given retrospective effect. It
added Article 31A(2)(a)(iii) and laid down that estate includes Any land for the purpose
of agriculture or ancillary purpose which includes wasteland or forest land.

2. Sajjan Singh V. State of Rajasthan AIR 1965 [10]

The constitutionality of the 17th Amendment Act of 1964 was questioned in this case.
By a 3:2 margin, the Supreme Court dismissed the claim, applying the criterion of pith
and substance to hold that Article 368 grants the right to alter 13 of the
Constitution (2). In this instance, the ruling in Shankari Prasad was sustained.

3. I.C. Golak Nath & Ors V. State of Punjab AIR 1967 [11]

The legitimacy of the 17th Amendment Act of 1964 was challenged once more in this
case, and the matter was referred to a bigger bench of 11 judges. By a 6:5 margin, the
Court overturned a previous decision in Shankari Prasad and Sajjan Singh, holding that
the term "law" in Article 13 encompasses constitutional amendments made under
Article 368. Article 368 merely allows for the method, not the ability to change,
according to CJI Subba Rao, speaking for five judges. Because it derives its authority
from Article 248 (Residuary Power), which is an ordinary law, the standard set out in
Article 13 will apply. After this landmark case 24th Amendment of 1971, came to
neutralise the effect of Golaknath case. It gave us Article 13(4), which says that any
amendment made under Article 368 is not a law under Article 13. It also changed the
Marginal note of Article 368 to Power of parliament and procedure to amend the
constitution.
The 25th Amendment of 1971 replaced the word "compensation" in Article 31(2) with
"amount," removing the government's responsibility to provide compensation. It
introduced Article 31C to the constitution, stating that Articles 14, 19, and 31 do not
apply to laws adopted to carry out the policy underlying Article 39(b) and (c).
 4. Kesavananda Bharati V. State of Kerala AIR 1973 [12]

In this case, the 24th and 25th Amendment Act of 1971 was challenged. A Judge
Bench of 13 Judges was constituted. With the ratio of 7:6 held that:

1. Power to amend the constitution is to be found in Article 368. It is hard to

believe that it lies in residuary power.
2. There is a difference between ordinary law and constitutional amendment.
3. Parliament can’t destroy or amend the basic structure of the constitution.
CJI Sikri gave the list of the Basic structure though not exhaustive;

● The supremacy of the constitution.

● Republic and democratic form of government.
● Secular character of the Indian Constitution.
● Separation of Power.
● Federal character.
1. Court also held that “compensation” can’t be replaced with “amount”.
2. Article 31(c)(i) was held valid but Article 31(c)(i) was declared invalid.

5. Indira Nehru Gandhi V. Raj Narain AIR 1975 [13]

The 39th Amendment Clause 4 was challenged in this case because it prohibits
challenges to Speaker and Prime Minister elections. It was deemed unconstitutional in
this instance and was knocked down.

6. Minerva Mills V. Union of India AIR 1980 [14]

In this case, further Judicial Review was added to the list of Basic Structure of the
constitution along with the balance between Fundamental Rights and Directive
Principles.
 7. I.R. Coelho V. State of Tamil Nadu AIR 2008 [15]

In this case the court held that any act inserted in Schedule 9 can be judicially
scrutinised but only those enactments which are inserted after 24th April 1973.

CONCLUSION

We have accepted the notion of separation of powers in India, thus we cannot exercise the
power of judicial review in its entirety. If the courts assume complete and arbitrary judicial
review authority, it will result in bad performance by all government departments. So, in order
for all of the functions to function effectively, each one must work inside its own area. The
notion of judicial review is built in the fundamental framework of the Indian constitution. It
aids the courts in maintaining a check and balance on the other two branches of government,
ensuring that they do not abuse their power and operate in line with the law.

The whole concept of Judicial review has been inserted in our constitution for safeguarding the
interests of citizens and to check if any provision is not violating the structure of the constitution
or violating the fundamental rights of the citizens. The extent of use of this power of judicial
review has given us many landmark judgements as discussed above and changed the discourse
of the laws and provision our nation has seen.

Hence, to conclude in a nutshell, The concept of Judicial review, Judicial review in India and
Judicial review after failure to exercise discretion are all bold steps for the protection of the
rights & the right owners of this country.

BIBLIOGRAPHY

1. Administrative Law 7th Edition by Durga Das Basu/S.P. Sengupta

2. https://en.wikipedia.org/wiki/Judicial_review_in_India#:~:text=Judicial%20review%
20is%20one%20of,review%20may%20differ%20between%20countries.
3. https://www.legalserviceindia.com/legal/article-746-judicial-review-in-india.html
4. https://blog.ipleaders.in/all-about-judicial-review/#Shankari_Prasad_V_Union_of_Ind
ia_AIR_1951_SC_458
5. www.constitutionofindia.net
6. https://thefactfactor.com/facts/law/civil_law/administrative-law/failure-to-exercise-dis
cretion/5737/
7. https://lawsuperior.com/administrative-discretion-failure-to-exercise/
8. www.wikipedia.com
9. www.blog.pleaders.com