NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

Project on

ADMINISTRATIVE DISCRETION AND

JUDICIAL REVIEW

Submitted to: Mrs.Sushma.

Submitted by: Kishore Gaurav

Roll No.: 2012 B.A. LL.B. 06

-Tenth Trimester, IV Year

TABLE OF CONTENTS
1.Introduction.4
2.Definitions given by renowned authors5
3.Case laws..6
4,Basis of discretion.......7
5. Factors contributing to the growth of discretion....9
6. Judicial review..10
7. Case laws...11
8. Conclusion12

INDEX OF AUTHORITIES
Cases
Arora v. State Of U.P.....................................................................................................................10
Arora v. State of Uttar Pradesh, AIR 1962 SC 1164......................................................................10
Calcutta Electricity Supply Corporation v. Workers Union.............................................................9
Chugamal v. Chaliha, AIR 1971 SC 730.........................................................................................9
DR. Pratap Singh v. State of Punjab................................................................................................9
Hriday Narayan v. ITO....................................................................................................................6
Pratap Singh v. State of Punjab, AIR 1963 P H 298........................................................................8
Secretary of State for Education & Science Vs Tomeside Metro Borough Council.......................6
Sharp v. Wakefield...........................................................................................................................7
Sheriff Ahmed v. R.T.O Meerut (1978............................................................................................6
State of bombay v. K.p. krishnan...................................................................................................10
State Of Madras V. Sarthi .............................................................................................................10
United States v. Wonderlich.............................................................................................................6
UOI v. Kuldeep Singh (2004...........................................................................................................6

INTRODUCTION
Discretion has been defined as the freedom or authority to make judgements and to act as one
sees fit. i.e. to say, free exercise of power as regards the ability to choose from different ways to
achieve a particular goal or result.1 Administrative discretion would mean choosing from various
available alternatives but with reference to rules of reasons and justice and not according to
personal whims.2 Invariably, in all systems of iurisprudence, accepted norm that the Courts will
not interfere with the action pursued by such authorities in exercise of their administrative
discretion.
Administrative discretion refers to degree of latitude of flexibility exercised by public
administrators when making any business or conducting any public business. 3 The chief source
of discretion is legislations. There is a difference of degree. Discretion could be of a very high
degree, medium level, and a very low level discretion and no discretion. Wider is the discretion,
more is the danger.
It cannot be expected of the Courts to have the time and competence to judge each and every
matter, let alone substitute it's wisdom for that of the authority concerned. Again, this does not
mean that the Courts will not interfere at all. They will not allow discretionary power to assume
the garb of arbitrary power. The Courts have to ensure that discretion is exercised strictly within
1 See, I. P. Massey, Administrative Law, 62 (1985).
2 See,

M. P. Jain, Principles of Administrative Law, 330 (1993).

3 See, William T. McLeod, The New Collins Concise Dictionary of the English
Language, 319 (l985).
4

the conditionalities laid down by the law while exercising such discretion. Today, the question of
control of discretionary power is perhaps the most crucial and critical problem of modern
administrative law.
DEFINITIONS GIVEN BY RENOWNED AUTHORS
Prof. Julius Grey -Discretion is a power to make a decision that cannot be determined to be
right or wrong in any objective way.
J. Edward Coke -J. Edward Coke defined discretion as "Discretion is a science of
understanding, to discern between falsity and truth, between wrong and right, between shadows
and substance, between equity and colourable glasses and pretences, and not to do according to
their men's will and private affections."
Kar & Lawson- Many of the acts performed by public authorities or public offices are done in
strict obedience to rules of statute or common law which impose on them a simple or definite
duty in respect of which they have no choice.
Lord Diplock Comment on Discretion in
Secretary of State for Education & Science Vs Tomeside Metro Borough Council4
The very concept of Administrative discretion involves a right to choose between more than one
possible course of action upon which there is a room for reasonable people to hold different
opinion as to which is to be preferred.

4 1977 AC 1014
5

CASE LAWS
1. Secretary of State for Education & Science Vs Tomeside Metro Borough Council5
The very concept of Administrative discretion involves a right to choose between more than one
possible course of action upon which there is a room for reasonable people to hold different
opinion as to which is to be preferred.
2. UOI v. Kuldeep Singh (2004)
(i)
Discretion means to discern between right and wrong. It is to choose the best.
(ii)
Whoever exercises the discretion is bound by reason and rule of law.
Discretion should be governed by rule of law.
3. Hriday Narayan v. ITO6
In this case correction of clerical errors were considered to be ministerial function only.
4. Sheriff Ahmed v. R.T.O Meerut (1978)
Discretionary power involves exercise of power using discretion which is based on subjective
satisfaction. The expressions depending discretion are Whenever the authority deems it
necessary, reasonable, appropriate, if it is satisfied, if it is of opinion.

5 ibid
6 1971 SCR (3) 683
6

5. United States v. Wonderlich7 -Justice Douglas commented upon the importance of

Administrative Discretion. But he stated that Absolute discretion is a ruthless master. It is
more destructive of freedom than any other human invention.
6. Sharp v. Wakefield8
The word discretion means choosing from other available options. This choice should be based
on rules of reasons and justice and not on personal whims and fantasies of an individual. Such
exercise must not be arbitrary, vague and fancible. But it should be real and regular.
Basis of Discretion
1)
2)
3)
4)

Autonomy and Legality

Procedural Impropriety
Proportionality
Rationality

Factors Contributing to the growth of Discretion

1) Need of control in the area of welfare, economy and environment.
2) The limited legislative capacity, resources and time.
3) Need of technical expertise in the area of social order and welfare (mental health, childcare,
juvenile justice) and claims of science justifies an increase in the discretionary power of
institutions and experts.
4) Complexity of subject matter.
5) Shift in power structure of the modern state.
6) Discretion is often desirable for individual justice.

7 US SC 1951
8 1891 AC 173
7

JUDICIAL REVIEW
By way of Judicial review Judicial control is imposed on administrative discretion. The position
of

law with regard to judicial review is such that Courts cannot substitute their view. Courts

shall not act as appellate body. Court is not an appellate authority where correctness of order of
administration can be canvassed.9
It is not for the Court to put itself in the place of the concerned authority and decide whether or
not it would have come to the same decision as arrived at by the authority. All that it should do
would be to see whether the power has been exceeded or acted upon in a manner unbecoming of
the said discretion. 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.
Extent of Judicial Control-Whenever a discretion is conferred on an administrative authority,
guidelines are also issued for the exercise of that discretion. If the administrative authority
exceeds that parameter, the actor decision could be held to be ultra-vires not having the authority
of law.
This is because the authority cannot exceed the limitation set by the parent statute itself. Thus the
Court has to see whether the decision was reached in a proper manner or not, if yes, the Court
will not set aside the order of the authority. But, on the other hand, if the Court comes to the
conclusion that there were some extraneous reasons for such an order, the Court may in it's
wisdom set aside or quash such order.

9 Pratap Singh v. State of Punjab, AIR 1963 P H 298

8

"The Court, in the exercise of it's judicial review, is not concerned whatsoever with the
correctness of the findings of fact on the basis of which orders are made as long as those findings
are reasonably supported by evidence.
order can be upheld, it should be upheld if there is no other vitiating factor.
Grounds of Abuse
Where the discretionary power is conferred on the administrative authority for one purpose, it
cannot be exercised to achieve another purpose, and if done, it would be a clear abuse of that
power. So though the intentions may be good, if it is outside the purported objective, it would be
likely to be struck down. It is necessary to go into the motive for which the action was taken in
particular manner. Whenever a discretionary power is conferred, it must be exercised keeping in
mind the relevant consideration for that purpose, i.e. to say factors which would have a direct
bearing on a reasoned order, instead of considerations

CASE LAWS
1.

DR. Pratap Singh v. State of Punjab10-

In Pratap Singh v. State of Punjab11 an order of suspension of a civil

surgeon was set aside on the ground that it was a clear mala-fide exercise of
power as it was shown that the Chief Minister had personal animosity
towards him. It was further held that for establishing mala-fide, direct
evidence was not necessary when such an inference was inevitable from the
circumstances shown. Normally, if the plea of mala-fide is not taken, the
order will appear to be valid on the face of the record. Consequently, the
burden of proving mala-fide is on the person making the allegation. Usually
there is a presumption in favor of the administration that the exercise of such
power was in good faith and for public benefit. 12 However the Courts will not
accept vague and casual allegations suggesting that a particular action was
taken with an ulterior motive. It is for the petitioner to conclusively prove
mala-fide exercise of power failing which the order will be upheld.13
2. In Calcutta Electricity Supply Corporation v. Workers Union14,

10 AIR 1963 P H 298

11 AIR 1963 P H 298
12 ibid
13 Chugamal v. Chaliha, AIR 1971 SC 730.
10

The authorities had the discretion to award a claim for the medical expenses of the employees,
the Court held that in doing so, it could not grant aid to the families of the employees, as such a
power was not mandated. The Courts seems to have taken the view that if there is anything to
show that an order can be upheld, it should be upheld if there is no other vitiating factor.15
3. Arora v. State Of U.P.16- In Arora v. State of Uttar Pradesh17
where the State Government was authorised to acquire land for a company
for public purpose and where it was acquired for a Private Company, the
Court held the order to be bad as based on irrelevant consideration. The
Court clearly specified that it was up to the Courts to interpret provisions and
not for the Government do so.
4. State Of Madras V. Sarthi18 Section 10 of the Industrial Dispute Act, 1947 was in question. Where if the govt. is of opinion
that any industrial dispute exists or apprehended, it can refer that dispute to adjudication by an
Industrial tribunal. It was held by SC that in making the reference, govt. was doing an

14 1994 SCC (6) 548

15Calcutta Electricity Supply Corporation v. Workers Union, 1994 SCC (6) 548
16 AIR

1962 SC 1164.

17 Arora v. State of Uttar Pradesh, AIR 1962 SC 1164.

18 AIR 1964 SC 1230
11

administrative act and the factual existence of the dispute and the expediency of making a
reference in the circumstances of a particular case were matter entirely for the govt. to decide.
5. State of bombay v. K.p. krishnan19Sec 12 of Industrial Dispute Act stated that govt. is required to record reasons for not referring
any dispute to Industrial Tribunal. It was held by SC that the court could not examine the
propriety, correctness, adequacy or satisfactory character of the said reason.

C ONCLUSION
It has been repeatedly held that the Courts will not go into the merits of the case except to look
into the manner in which the power was exercised. If it is found to have been exercised in the
manners previously discussed, the Court will set aside or quash the order. There seems to be
some slight contradiction in the positions adopted by the Court. While on one hand, the Court
refused to go into the merits, on the other it goes into how the powers were exercised. How can
the validity of the procedure be gone into without going into the merits of the cases? The line of
separation between the two seems to be very thin indeed. The Courts over the years seem to have
realized that the best way to control or stem abuse of discretion is to be as strict as possible in
certain cases while being liberal in some other appropriate cases.
The Courts will not under any circumstances substitute its own views for that of the concerned
authority. In spite of everything, the Courts still play a marginal role in the control of exercise of
discretionary power. The Courts seem to have taken it upon themselves to fill in the gaps by
looking into the enabling act, and determining the parameters within which such discretion ought
to have been exercised. Further the Courts seem to be insisting on speaking orders to enable
19 AIR 1960 SC 1223
12

them to comment on its validity in case of any dispute. The Courts have been very cautious in
dealing with such cases as interfering in every other order would mean taking away the very idea
behind which the discretion was granted in the first place. J. Douglas Law has reached its finest
moments when it has freed man from unlimited discretion of some ruler. Where discretion is
absolute, man has also suffered.

B IBLIOGRAPHY
BOOKS

DURGA DAS BUSU, ADMINISTRATIVE LAW, 168 (1993).

I.P. MASSEY, ADMINISTRATIVE LAW, 62 (1985).
M. P. JAIN, PRINCIPLES OF ADMINISTRATIVE LAW, 330 (1993).
WILLIAM T. MCLEOD, THE NEW COLLINS CONCISE DICTIONARY OF

LANGUAGE, 319 (L985).

DURGA DAS BASU, SHORTER CONSTITUTION

COMPANY, NAGPUR).
M. P JAIN, INDIAN CONSTITUTIONAL LAW, 5TH EDN. (WADHWA
NAGPUR)

WEB RESOURCES

HTTP://WWW.MANUPATRA.COM/
HTTP:// WWW.LEGALSERVICESINDIA.COM/

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