ADMINISTRATIVE DISCRETION

-Administrative Discretion
-Grant & Exercise of Discretion
-Judicial Review of Administrative
Discretion
 Administrative Discretion

• K C DAVIS – “WHERE LAW ENDS, TYRANNY NEED NOT BEGIN;

WHEN LAW ENDS DISCRETION BEGINS”

• The traditional theory of “laissez fairre” – given up by the State.

• POLICE STATE – transformed- WELFARE STATE
• Because of this philosophy – Govt. functions have increased
• Administrative authorities have acquired vast discretionary powers
• Discretion – power , right or liberty to decide one way or the other
• - to act according to one’s own judgment
• - freedom of choice
• - to be under one’s power or control
• - the freedom to decide what should be done in a particular situation
• Coke J : DISCRETION – is a science or understanding to discern
between falsity & truth, between right & wrong, between
shadows & substance, between equity & colorable glosses &
pretenses, and not to do according to their wills & private
affections
• Sharp v. Wakefield
• ‘Discretion means when it is said that something is to be done
within the discretion of the authorities that something is to be
done according to the rules of reason and justice not according
to private opinion.. According to Law and not humour..
• It is to be not arbitrary, vague and 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..’
• Discretion – connotes necessarily an act of a judicial character. But it
implies absence of a hard-and-fast rule
• By the virtue of this- the administrative authorities have acquired vast
discretionary powers and generally, exercise of those powers are left to
the subjective satisfaction of the administration without laying down the
statutory guidelines or imposing conditions
• The administration administers law enacted by the legislature and thus
performs executive functions; it also enacts legislation when the legislative
powers are delegated to it by the legislature and it also interprets law
through Administrative Tribunals.
• Thus, practically there is concentration of all powers in the hands of the
Administration- the legislature, the executive & the judicial
• Power tends to corrupt & absolute power corrupts absolutely; also all
powers concentrated in one organ may lead to Despotism- hence the
controls
JUDICIAL REVIEW OF ADMINISTRATIVE DISCRETION

• JUDICIAL REVIEW – procedure by which a court can

pronounce on an administrative action by a public body
• Court’s power to review the actions of other branches or
levels of government- especially the court’s power to
invalidate legislature and executive actions as being
unconstitutional
• JR in India deals with 3 aspects-
1. Judicial review of legislative action
2. Judicial review of Judicial decision
3. Judicial review of administrative action
• The last aspect- is a matter of concern in this Unit.
 Object of JR

• The underlying object of judicial review is to

ensure that the authority does not abuse its power
• And the individual receives just and fair treatment
and to ensure that the authority reaches a
conclusion in the eyes of law
• Minerva mills v. Union of India
• SC observed- the Constitution has created an
independent judiciary which is vested with the
power of judicial review to determine the legality
of the administrative action and the validity of the
legislative action
 Doctrine – discretion - explained
• Discretion – implies power to make a choice between
more than one possible course of action on which
there is room for reasonable people to hold differing
opinions.. (K C Davis, Discretionary Justice)
• de Smith – Judicial Review of Administrative Action-
the term discretion itself implies vigilance, care,
caution and circumspection. When the legislature
confers discretion on a court of law or on an
administrative authority, it also imposes responsibility
that such discretion is exercised honestly, properly
and reasonably – the same is expected out of an
administrative authority.
 Nature & Scope of Judicial Review
• Highly complex & a developing subject
• It has its roots long back & its scope & extent varies from case to case
• The power of judicial review is an integral part of our constitutional
system & has been rightly described as the basic or essential feature of
the Constitution of India.
• I tis the most potent weapon in the hands of the judiciary for
maintenance of democracy & rule of law.
• In recent times, JR of administrative has become extensive & expansive
• The traditional limitations have vanished and the sphere of judicial
scrutiny is being expanded
• Under the old theory, courts used to exercise power only in cases of
absence or excess or abuse of power. As the State activities have become
all pervasive & giant public corporations have come into existence, the
stake of the public exchequer justifies larger public audit & judicial control
 Judicial Review & Administrative Review : Distinguished

• Where a statute empowering an administrative

authority contains a provision of appeal, revision
or review, it is statutory and can be availed of by
an aggrieved party. The superior authority or the
authority which had decided the matter will
exercise such statutory power and grant an
appropriate relief to the applicant
• Judicial review- on the other hand is neither an
appeal nor a review of a decision rendered by n
administrative authority.
 JR- England
• Dicey – The Rule of Law- opposed to the conferment of
Discretionary power on executive or administrative
authorities.
• Wherever there is discretion, there is room for
arbitrariness and that in a republic no less than under a
monarchy discretionary authority on the part of the
Government must mean insecurity for legal freedom on
the part of its subjects
• The law requires that the government should be subjected
to the law rather than law subject to the government
• But this dogma cannot be taken seriously today & indeed
it never contained mush truth.
 JR- England (contd.)
• The term ‘discretion’ itself implies care, caution,
circumspection. Every discretionary power, therefore has to
be exercised legally, properly & reasonably.
• Discretion – is no alien to English Legal system
• English courts have always proceeded on the basis that
Parliament had conferred power on the admin authorities to
be exercised lawfully, reasonably & in accordance with well
established principles of law.
• Wherever it appeared to the court that there was an abuse of
power by an administrative authority, it has intervened by
granting appropriate relief to the aggrieved party.
 JR- USA
• Doctrine of Judicial Review – accepted
• Constitution of America- recognizes Separation of Powers
• Legislative powers- vested- the Congress
• Executive powers- vested – the President
• Judicial powers- vested – the Supreme Court & other courts
subordinate thereto
• Under the power of JR- The SC can set aside any order passed or
action taken by the administrative authority or agency if it is not in
consonance with the Law
• Marbury v. Madison
• The SC through Marshall CJ observed that the Constitution is
supreme & it is the duty of the court to declare what the law is.
• (why otherwise does it (the Constitution) direct the Judges to take
on oath to support it)
 JR - INDIA
• JR – perhaps the most important development
in the field of public law – in the second half of
the 20th century
• Doctrine of Judicial Review- basic feature of
our Constitution
• The SC & the HC s are the ultimate
interpreters of the Constitution.
• it is therefore, their duty to find out the
extent & limits of the power of its
counterparts.
 JR – India (contd.)

• In Bandhua Mukthi Morcha v. Union of India

• The concept of reasonableness & non-arbitrariness pervades the entire
constitutional scheme and is a golden thread which runs through the whole of
the fabric of the Constitution.

• In INDIRA NEHRU GANDHI v. Raj Narain

• Independent judiciary with the power of Judicial review – basic structure of
Indian Constitution – beyond the scope of amendability

• In S R Bommai v. Union of India

• JR –……vital principle of our Constitution which cannot be abrogated without
affecting the basic structure of the Constitution.
• The duty of the Court is to confine itself to the question of legality. It has to
consider whether a decision-making authority exceeded its powers, committed
an error of law, violated rules of natural justice, reached a decision which no
reasonable man would have reached or otherwise abused its powers.
 GROUNDS
• While exercising power of judicial review, the court does not
exercise appellate powers. It is not intended to take away from
administrative authorities the powers & discretion properly
vested in them by law and to substitute courts as the bodies
making the decisions. JR is a protection and not a weapon.
• The duty of the court is to confine itself to the question of
legality. Its concern should be whether-
• A decision-making authority exceeded its power
• Committed an error of law
• Committed a breach of the rules of natural justice
• Reached a decision which no reasonable tribunal would have
reached
• Abused its powers
 Grounds- JR

Grounds - JR

FAILURE TO
EXERCISE EXCESS OR ABUSE
DISCRETION OF DISCRETION

Sub –delegation Acting without

discretion Mala fide
Imposing fetters Exceeding Improper object
on discretion discretion Colourable exercise of
power
Acting under Arbitrary action
Colourable Legislation
dictation Irrelevant Non-observance of
Non-application considerations Natural Justice
of mind Leaving out Doctrine of
relevant Proportionality
Power coupled considerations Doctrine of Legitimate
with duty expectation
Mixed
considerations Unreasonableness
 FAILURE TO EXERCISE DISCRETION
• The main object of conferring discretionary power
on an administrative authority is that the authority
itself must exercise the said power. If there is failure
to exercise the discretion on the part of that
authority the action will be bad. Such type of flaw
may arise in the following circumstances-
• Sub-delegation
• Imposing fetters on discretion
• Acting under dictation
• Non-application of mind
• Power coupled with duty
 Sub-delegation

• A discretionary power must, in general, be exercised only by the authority

to which it has been committed; and cannot be sub-delegated to any
other authority or official.
• Allingham v. Minister of Agriculture & Fisheries
• Ganapati Singhji v. State of Ajmer
• It was held that – sub-delegation of power was bad
• But of late- there are these new notions :
• Permissible delegation
• Impermissible delegation
• In Barium Chemicals Ltd. v. Company Law Board
• The rules framed by the Central Govt. empowered the Chairman to
distribute the business of the Board among himself as well as other
members. The Chairman passed an order vesting certain powers in himself
alone. The SC upheld the said act.
 Sub-delegation (contd.)

• Pradyat Kumar Bose v. Chief Justice of Calcutta High Court

• An enquiry against the Registrar was made by the puisne judge of
the court. After considering the report and issuing show-cause
notice, he was dismissed by the Chief Justice.
• The SC held that it was not a case of delegation of power by the
Chief Justice but merely employing a competent officer to assist
him.
• Proper test to determine whether sub-delegation is legal or not is
to decide whether the final decision rests with the authority on
whom power is conferred by the Act.
• As to the effect of the decision; it can be said that if it is in
conformity with law, it is legal, valid & enforceable, not otherwise.
 Imposing fetters on discretion

• An authority vested with discretionary power must exercise the same after
considering individual cases.
• If the authority imposes fetters on its discretion by adopting fixed rules of
policy to be applicable in all cases coming before it, there is failure to
exercise discretion
• Kesavan Bhaskaran v. State of Kerala
• The relevant rule provided that no school-leaving certificate would be
granted to any person unless he had completed 15 years of age.
• The Director, was however, empowered to grant exemption from this rule
in deserving cases under certain circumstances.
• But, the Director had made an invariable rule of not granting exemption
unless the deficiency in age was less than two years
• It was held that the rule of policy was contrary to law.
 Imposing fetters (contd.)

• Shri Rama Sugar Industries Ltd. v. State of A.P

• Tax was imposed on the purchase of sugarcane but the Govt.
was granted power to exempt any new sugar factory from
payment of tax for a period of three years. [The Andhra Pradesh
Sugarcane Regulation of Supply and Purchase Act, 1961]The
govt., by way of policy, decided to grant such exemption in
favour of the co-operative sector only.
• The appellant challenged the said policy
• The Constitution Bench (3:2) upheld the decision of the govt.
• It is submitted that the majority decision does not make a good
piece of law
• Here, the minority rightly observed – “in fact, the Govt. by
making the policy decision, had shut its ears to the merits of the
individual applications”
 ACTING UNDER DICTATION

• An authority entrusted with a power does not exercise

that power but acts under the dictation of a superior
authority
• The authority vested with the power of discretion
purports to act on its own but ‘in substance’ the
power is exercised by someone else
• It is well-settled that if the authority permits its
decision to be influenced by the dictation of others, it
would amount to abdication & surrender of discretion
• If an authority hands over its discretion to another
body – it acts as ultra vires
 Acting under dictation (contd.)

• In Commr. Of Police v. Gordhandas Bhanji

• Under- The City of Bombay Police Act, 1902, the
Commissioner of Police granted license for the
construction of a cinema theatre.
• But later on, he cancelled it at the direction of the
State Govt.; the SC set aside the order of
cancellation of license as the Commissioner had
acted merely as the agent of the govt.
• In Roncarelli v. Duplessis (1959 SCR 121)
• Where a liquor license of a restaurant was cancelled
at the direction of the Prime Minister, the action was
held bad and set aside.
 NON-APPLICATION OF MIND
• When a discretionary power is conferred on an
administrative authority, the said authority must exercise
that power after applying its mind to the facts and
circumstances of the case in hand
• If this condition is not satisfied, there is clear non-application
of mind – the authority might be acting mechanically,
without due care, caution – hence, the action is bad.
• Emperor v. Sibnath Banerji
• An order of preventive detention was quashed as it had been
issued in a routine manner on the recommendation of police
authorities & the Home Secretary himself had not applied
his mind & satisfied himself that the impugned order was
called for or not.
 Non-application of mind

• Jagannath Misra v. State of Orissa

• In the order of detention – six grounds were in verbatim
reproduced from the relevant section of statute.
• The Home Minister filed the affidavit in support of the
order. In the affidavit, he had stated that his personal
satisfaction to detain the petitioner was based on two
grounds
• The SC held that the detaining authority must be
satisfied about each of the grounds mentioned in the
order
• Since it was not done- there was clear non-application of
mind by the Home Minister
 POWER COUPLED WITH DUTY

• Several statutes confer powers on

administrative authorities & officers to be
exercised by them in their discretion
• The power is in permissive language- “it may
be lawful”, it may be permissible”.
• The question is whether it is open to the
authorities to exercise or not to exercise the
power at their sweet wills
• de Smith states – “Discretionary powers are
frequently coupled with duties”
 Power coupled with duty (contd.)
• R v. Newcastle Tyne Corptn.
• Local authorities were bound to approve building plans if
they were in conformity with bye-laws
• Ganpat Ladha v. Sashikant Vishnu Shinde
• The Court was bound to pass a decree for possession in
favor of the landlord, if the relevant facts were proved.

• It could be an administrative power or a judicial power

pertaining to discretion- if such a power is vested on an
authority- it ought to be exercised by the same; however
at times duty is coupled with power – which amputates
the power conferred
 Power coupled with duty (contd.)
• Comptroller & Auditor General of India v. K S Jagannathan
• The Apex Court was called upon to consider whether the
Comptroller & Auditor General was under a constitutional
obligation to prescribe lesser standard of examination for
Scheduled Caste & Scheduled Tribe candidates in the light of
the office memorandum issued by the Govt. of India
• The court rightly posed a question, “Whether it is a
discretionary power (simpliciter) or a discretionary power
coupled with a duty?”
• Considering the relevant provisions of the Constitution and
the object of issuing the memorandum, it was held that the
power was required to be exercised in the light of the
constitutional provisions.
 EXCESS OR ABUSE OF DISCRETION
• When discretionary power is conferred on an administrative authority, it must be
exercised according to law. But there may be instances of abuse of this
discretionary power – which is in fact bad in law
• Excess or abuse of discretion may be inferred from the following circumstances-
• Acting without jurisdiction
• Exceeding jurisdiction
• Arbitrary action
• Irrelevant considerations
• Leaving out relevant considerations
• Mixed considerations
• Mala fide
• Improper object
• Colourable exercise of power
• Colourable legislation
• Non-observance of principles of natural justice
• Doctrine of proportionality
• Doctrine of legitimate expectation
• Unreasonableness
 Acting without Jurisdiction
• It is well settled that there can be no exercise of power unless such power exists
in law.
• If the power does not exist, the purported exercise of power would be bad & the
action would be illegal and void.
• R. v. Minister of Transport, Ex p. (KB )
• Even though the Minister had no power to revoke the license, he passed an
order of revocation. The action was held ultra vires & without jurisdiction
• Ahmedabad St. Xavier’s College Society v. State of Gujarat
• the SC held that the university has no power to compel a minority institution to
adopt a particular medium of instruction in education
• Govt. of AP v. M T Khan
• Two convicts – by the competent courts in the states of Madhya Pradesh &
Maharashtra were transferred to the Andhra Pradesh.
• The Governor of Andhra Pradesh granted remission to them. It was held that
the “appropriate Govt.” was not Andhra Pradesh govt. – hence the order was –
held to be made without the authority of law.
 Exceeding Jurisdiction
• An administrative authority must exercise the power within the limits of the
statute & if it exceeds those limits, the action will be held ultra vires.
• Bar Council of India v. Surjeet Singh
• Under the relevant statute, the Bar Council of India is empowered to frame rules
– prescribing qualifications & conditions entitling an advocate to vote at the
election of a State Bar Council – the latter had no jurisdiction to frame rules.
• Also V. Sudeer v. Bar Council of India (Bar Council cannot frame rules laying
down pre-enrolment training & apprenticeship for fresh law graduates seeking
enrolment as advocates & such rule is beyond the power of the Bar Council &
must be held ultra vires)
• Indira Kumar Kartiangoni v. Raksha Mantralaya, Shastra Sena Chikitsa Seva
• Services of a nurse were terminated on the ground that she had married. The
President of India had issued an order directing to retain Military Nursing
Officers in service even after their marriage subject to review of their
performance in two years following the marriage.
• Since that opportunity was not given to the petitioner, the order was held illegal
& quashed by the Supreme Court.
 Arbitrary Action
• If an administrative action is arbitrary – it is liable to
be set aside
• ‘arbitrary’ – no precise statutory or other definition
• arbitrariness – in making of an order-may manifest
itself in many forms- non-application of mind;
absence of reasons; etc.
• Air India v. Nargesh Meerza
• Shrilekha Vidyarthi v. State of U.P.
• Termination of appointment of a Govt. Counsel was
held violative of Art.14 of the Constitution- arbitrary
 Irrelevant Considerations
• A power conferred on an administrative authority by a statute must be
exercised on the considerations relevant the purpose for which it is
conferred.
• Instead, if the authority takes into account wholly irrelevant or extraneous
factors, the exercise of power by the authority will be ultra vires & the
action bad.
• State of Rajasthan v. Union of India
• Legality & validity of the letter – Home Minister Charan Singh – 18 April
1977 – that the States with Congress Govt. in power – have to seek fresh
mandate of the people. – an instance of irrelevant considerations
• However, the SC – held that the questions raised were political in nature &
the court had no power of judicial review in such matters
• But it is humbly submitted that the point has been appreciated in its
proper perspective in S.R.BOMMAI v. Union of India
• State of MP v. Ramashanker
• Services of a teacher were terminated on the basis of a police report that
in the past, he had taken part in RSS and Jan Sangh activities. SC held the
order as illegal & invalid
 Leaving out relevant considerations
• An administrative authority cannot take into account irrelevant or
extraneous considerations. Likewise it cannot ignore relevant,
valid & germane matters.
• If it fails to consider relevant factors, the exercise of power would
be bad & the action illegal & ultra vires
• Harbajan Singh v. Union of India
• A was not paid his dues by State of Algeria. He, therefore, wanted
to sue the State of Algeria. Since Section 86, CPC required
permission of Central Govt. before a suit is instituted against a
foreign State; A applied for grant of such permission.
• The ‘prayer’ , however was refused on, political grounds. The
action was challenged by A in the SC (Art 32)
• The SC allowed the petition & set aside the order of the Central
Govt.
 Mixed Considerations
• A peculiar situation
• Here the order is neither wholly based on
relevant or germane grounds nor wholly based
on irrelevant or extraneous considerations.
• It is based partly on relevant & germane
considerations and partly on irrelevant or
extraneous considerations
• Cleavage of opinion - there is no uniformity or
consistency in judicial pronouncement on this
point
 Mixed considerations (contd.)

• Ram Manohar Lohia v. State of Bihar

• Under the relevant rules, the detaining authority
was empowered to detain a person to prevent
subversion of ‘public order’. The petitioner was
detained with a view to preventing him from acting
in a manner prejudicial to the maintenance of ‘law &
order’.
• Order of detention passed on two grounds – one
ground was legal & relevant; the other was not.
• The SC set aside the order of detention; according
to the Court the term ‘law & order’ was wider than
the term ‘public order’.
 Mixed considerations (contd.)
• Subjective satisfaction – can a legislature provide by
legislative device that in spite of mixed considerations or
relevant & irrelevant grounds; an order of detention shall be
treated as legal & valid ?
• In certain statutes, such provisions have been made by the
Legislature.
• For instance Section 5 –A of COFEPOSA enacts that when an
order of detention is passed on two or more grounds, such
order shall be deemed to have been made separately on each
ground and it will not be deemed to be invalid or
inappropriate merely because one or more of the grounds is
or are vague, non-existent, irrelevant, etc.
• (State of Gujarat v. Consumer Education & Research Centre)
• (Attorney General of India v. Amritlal Pranjivandas)
 Mala fide
• Every power, either statutory or under common
law, must be exercised by the authority lawfully,
reasonably & in good faith.
• If the power is exercised in bad faith – the action –
illegal.
• Malice – ill-will ; spite
• Burden of proving mala fide is on the person
making the allegations (& the burden is very heavy)
• Types-
• Malice in fact
• Malice in law
• C S Rowjee v. State of AP
• The State Road Corptn. framed scheme for nationalization of
certain transport routes. It was done as per the directions of
the then Chief Minister.
• It was alleged by the petitioners that in selecting the
particular routes, the CM had acted malafide with a view –
take vengeance against the private transport operators of that
area who were his political opponents.
• From the facts & circumstances of the case & in the absence
of an affidavit by the Chief Minister denying the allegations
made against him, the SC upheld the contention of the
petitioners & quashed the order observing that the court was
“constrained to hold that the allegation that the CM was
motivated by bias & personal ill-will against the appellants,
stand unrebutted”.
• Also E P Royappa v. State of T.N.
• IAS cadre officer – appointed as C S; the Govt. then
created a temporary post – Officer on Special Duty in the
grade of CS. – transferred the petitioner on that post.
• The petitioner challenged the action – contending that it
was mala fide – malicious on part of the CM, GOVERNOR
& Members of Cabinet.
• But the SC – observed that the entire affidavit evidence
established beyond doubt that the allegations imputing
mala fides against the CM were baseless – the Court
dismissed the petition
• Also Shivajirao Nilangekar Patil v. Mahesh Madhav
(CM’s daughter – MD exam)
• K Nagraj v. State of AP
• A notification issued by the AP govt. – reducing the age of superannuation-
Govt. Servant- 58-55 years- challenged as mala fide contending that the action
was taken within one month of formation of the Govt. the SC negatived the
contention .
• S S Dhannoa v. Union of India
• The petitioner – was holding the office of the Chairman of the State Public
Service Commission – was appointed as Election Commissioner by the
President of India for a period of five years by issuing a notification.
• Within a period of 3 months, by another notification, the earlier notification
was rescinded, the post was abolished & the services of the petitioner came to
be terminated.
• The said decision was challenged as mala fide as the CEC desired that he
should have the sole power of decision in all matters.
• SC – dismissed the petition- holding that the creation & abolition of posts was
the prerogative of the executive& the decisions of the President were
unfettered
• Also T N Seshan v. Union of India
 Improper object
• A statutory power conferred on an authority must be exercised for the
purpose for which such conferment has been made. If it is exercised for
a different purpose, there is abuse of power & the action is illegal.
• If the power is exercised for an extraneous purpose, it is outside the law
& the decision is liable to be set aside.
• Nalini Mohan v. Dist. Magistrate
• The relevant statute empowered the authority to rehabilitate persons
displaced from Pakistan as a result of communal violence. That power
was exercised to accommodate a person who had come from Pakistan
on medical leave. The order was set aside
• Bangalore Medical Trust v. B S Muddappa
• Land – earmarked – public park (BDA)– then – allotted at the instance
of the then CM- private trust- construction of hospital – was contended
that the action was taken in the interest of local authority – SC-
negatived the contention- held- improper object
 Colourable Legislation

• Fraud on the Constitution

• Means that – the legislature is incompetent to enact a particular
law although the label of competency is stuck on it.
• Legislature attempts to do indirectly what it cannot do directly.
(Gajendragadkar J)
• K C Gajapati Narayan Deo v. State of Orissa (The Orissa Estates
Abolition Act, 1952)

• State of Bihar v. Kameshwar Singh (The Bihar Land Reforms Act,

1950)(Section 23 – computation of the net income of tenure-
holder after making certain deductions – (f) artificially reduced
the net income without laying down principles- held – it was a
way to deprive land owners of compensation- colourable
legislation)
 Colourable legislation(contd.)

• D C Wadhwa v. State of Bihar

• Where the Writ jurisdiction of the SC was
invoked – promulgation of ordinances by the
State of Bihar – on a large scale
• SC – allowed the petition – held that
promulgation of ordinances at large – fraud
on Constitution
 Colourable exercise of power
• Every power, statutory or otherwise, should be
exercised by the authority legally, properly &
reasonably.
• A power can be said to have been exercised
colourably if it intends to achieve an object not
warranted by law.
• C s Rowjee v. State of A P (nationalization of
transport routes)
• Bangalore Medical Trust v. B S Muddappa
(Govt. property – allotted – private trust)
 Distinction
• Between colourable exercise of power &
colourable legislation
• Colourable exercise of power - relates to an
individual action & a decision taken by an
authority or an officer
• Colourable Legislation – touches the
legislative power of a legislature in enacting or
promulgating an Act or a statute or ordinance
 Unreasonableness

• ‘unreasonable’ – not agreeable to reason; not guided by or based on good

sense; beyond limits of acceptability
• A discretionary power conferred on an administrative authority must be
exercised by that authority reasonably.
• If the power is exercised unreasonably or capriciously, there is an abuse of
power & the action of the authority will be ultra vires.
• Wednesbury’s unreasonableness
• Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation
• Wednesbury unreasonableness denotes extreme behaviour which may
amount to bad faith or the decision being absurd or perverse. It requires
something overwhelming to treat the action as so unreasonable that no
reasonable man in his senses can overcome it, such as, dismissal of
teacher on the ground of grey hair.
 Unreasonableness (contd.)

• Air India v. Nargesh Meerza

• A regulation framed by Air India- empowering termination of services of an air
hostess on her first pregnancy was held to be extremely arbitrary, unreasonable,
abhorrent to the notions of civilized society & interfering with the ordinary course
of human nature
• But in
• G B Mahajan v. Jalgaon Municipal Council
• The municipality entered into a contract with a private builder for construction of a
commercial complex. He was to complete the project at his expense & after
completion, was to handover part of it to the municipality & was allowed to
dispose of certain shops at his discretion & to retain premium received therefrom
by way of reimbursement of costs & profits
• Some residents challenged the action f the municipality inter alia on the ground
that it was arbitrary & unreasonable – leads to heavy loss to the municipality &
unjust enrichment to the developer
• The SC – negatived the contention (to condemn the authority’s decision, otherwise
valid, on the ground alone that the developer is likely to resort to transaction of
unaccounted money would, a judicial remedy, be plainly unthinkable)
• Also – Tata Cellular v. Union of India
 Unreasonableness (contd.)
• Test :
• Difficulty- applying the doctrine of unreasonableness
• By whose standards can ‘reasonableness’ – be decided
• Moreover, in different fields, in different situations & in
different contexts, the meaning of ‘reasonableness’
will differ
• Ex: test of reasonableness in administrative law is
different from the test of reasonableness under law of
torts – the English law figuratively identifies as ‘the
man in the street’, ‘reasonable man in court’s creation’
– it is said that – the judge merely enforces what he
thinks to be reasonable
 Doctrine of Proportionality
• With the growth of administrative law & the need & necessity
to control possible abuse of discretionary powers by various
administrative authorities, certain principles have been
evolved by courts.
• If the action taken by any authority is contrary to law,
irrational, a court of law can interfere with such action by
exercising power of judicial review – one such modes-
doctrine of proportionality
• ‘proportionality’ – Is a principle where the court is concerned
with the process, method or manner in which the decision-
maker has ordered his priorities & reached a conclusion or
arrived at a decision
• de Smith – ‘proportionality’ – involves – ‘balancing test’ &
necessity test’
 Doctrine of Proportionality (contd.)

• The doctrine requires administrative authorities

to take only those steps & actions which are
necessary for attaining the desired result. If the
action taken by the authority is grossly
disproportionate – the said action is not
immune from judicial scrutiny.
• Apart from the fact that it is improper &
unreasonable exercise of power, ‘it shocks the
conscience of the court’.
• Lord Diplock : “this would indeed be using a
sledge-hammer to crack a nut”
 Proportionality(contd.)

• Bhagat Ram v. State of H.P.

• An inquiry was instituted against a Forest Guard & he was held guilty for
negligence in performance of duty resulting in illegal cutting of 17 trees.
• A penalty of removal was imposed on him. The SC set aside the penalty
& observed – penalty disproportionate to the gravity of the misconduct
would be violative of Art 14 of the Constitution.
• Ranjit Thakur v. Union of India
• An army officer did nit obey the lawful command of his superior officer
by not eating food offered to him. Court Martial proceedings were
initiated against him & a sentence of rigorous imprisonment of one year
was imposed. He was also dismissed from service, with added
disqualification that he would be unfit for future employment
• The said order was challenged on the ground that the punishment was
grossly disproportionate.
• The SC upheld the contention , emphasizing on the point that ‘ all
powers have legal limits’
 Proportionality (contd.)

• Sardar Singh v. Union of India

• An army jawan was granted leave, & while going to
his hometown, he purchased eleven bottles of rum
from the army canteen though he was entitled to
carry only four bottles.
• In court-martial proceedings, he was sentenced to
undergo rigorous imprisonment for three months &
was also dismissed from service.
• His petition under Art 226 of the Constitution was
dismissed by the High Court. The petitioner
approached the SC. Holding the action arbitrary &
punishment severe, the court set aside the order.
 Doctrine of Legitimate expectation
• Recently recognized in English as well as Indian Legal
systems.
• The doctrine has an important place in the development
of the law of judicial review
• Generally, if the decision of an authority adversely affects
legal rights of an individual, duty to act judicially is implicit
• But even in cases where there is no legal right, the court,
in the facts & circumstances of the case, may invoke
general principles of natural justice & fair play in action.
• The court in such cases may not insist on an
administrative authority to act judicially but may still insist
that it acts fairly.
 Legitimate expectation(contd.)

• Legitimate expectation – (Halsbury’s Law of

England) :
• A person may have a legitimate expectation of
being treated in a certain way by an
administrative authority even though he has no
legal right in private law to receive such
treatment.
• The expectation may arise either from a
representation or promise made by the
authority, including an implied representation, or
from consistent past practice.
 Legitimate expectation (contd.)
• Attorney General of Hong Kong v. Ng Yuen Shiu
• A order was passed by the Govt. deporting the
applicant – who was an illegal immigrant. The
order was challenged as being violative of the
principles of natural justice.
• It was held that – a public authority is required
to follow a procedure which is in the interest of
good administration- to act fairly – so long as
this implementation does not interfere with its
statutory duty.
 Legitimate expectation

• Supreme Court Advocates-on-Record Association v.

Union of India
• The SC held that in recommending appointment to
the Supreme Court due consideration of every
legitimate expectation has to be observed by the
Chief Justice of India.
• Just as a HC Judge at the time of his initial
appointment has the legitimate expectation to
become Chief Justice of a HC in his turn in the
ordinary course, he has the legitimate expectation to
be considered for appointment to the Supreme
Court in his turn, according to his seniority.
 Legitimate expectation

• UT of Chandigarh v. Dilbaga Singh

• It was held by the SC that though a candidate
who has been selected for appointment to a
civil post & whose name has been included in
the ‘Select List’ has no indefeasible right to be
appointed, he has legitimate expectation for
consideration for such appointment.
• Hence, his name cannot be deleted or struck
off without affording an opportunity of
hearing.
 Bannari Amman Sugars Ltd. v. CTO
• Certain tax benefits were withdrawn by the govt. the SC held
that in public interest such an action could be taken by the
authorities.
• The observation made by the SC is important : a person may
have a ‘legitimate expectation’ of being treated in a certain way
by an administrative authority even though he has no legal
right in private law to receive such treatment
• However, the protection of such legitimate expectation does
not require the fulfillment of the expectation where an
overriding public interest requires otherwise
• Thus, where a person’s legitimate expectation is not fulfilled
by taking a particular decision then the decision-maker should
justify the denial of such expectation by showing some
overriding public interest.
 Legitimate expectation (contd.)
• Reasonableness, Principles of Natural Justice
have been essentially embedded into the
doctrine.
• The doctrine has undoubtedly gained
significance in the Indian Courts, giving locus
standi to a person who may or may not have
direct legal rights. The doctrine very well leads
an individual to a procedural right.
• However, there has been hesitance amongst
academicians as to whether the doctrine
should apply to substantive rights at all.