Judicial Control And Exercise Of Discretion

The transformation of the philosophy of state in the twentieth century from lassie faire to welfare
has augmented the states responsibility towards its subjects. There is no modern state in this
epoch which can execute such innumerable functions devoid of any discretionary power of its
own. India being a welfare democratic state is no exception to this procedure and therefore,
administrators are bestowed with greater power and authority to meet the goals of a welfare state.
Justice Bhagwati in R. D. Shetty v. International Airport Authority of India [1] , in the obiter
dicta has said that, exercise of discretion is an inseparable part of sound administration and,
therefore, the State which is itself a creation of Constitution, cannot shed its limitation at any
sphere of state activity."

Art of governance is complex and with unlimited usage of such power would definitely leave a
vacuum where arbitrariness can germinate. Therefore a yardstick of its use is necessary. The
grant of this discretion by the countrys legislature is well intended and bona fide but still
knowing the darker side of this power, the Judiciary of this country has been trying to
circumvent its misuse and abuse. The judiciary, being the watch dog of our rights, has its control
over this administrative power in two different stages. Firstly, when it is granted to the
administrative authority by our legislature and secondly, when it is at the stage of being used by
the administrative authorities. However, for the purpose of this project only the second point
would be discussed in details.

Definition
The definition of Administrative discretion is offered by many but there only few which are
worth mentioning. Prof. Freund [3] said that:

When we speak of administrative discretion, we mean that a determination must be reached, in

part at least, upon the basis of consideration not entirely susceptible of proof or disproof It
may be practically convenient to say that discretion includes the case in which the ascertainment
of fact is legitimately left to administrative determination."

In black laws dictionary [4] , administrative discretion would be a public officials or agencys
power to exercise judgment in the discharge of its duties.

According to another thinker, Coke, discretion would be a science or understanding to

discern between falsity and truth, between right and wrong, between shadows and substance,
between equity and colorable glosses and pretences, and not to do according to their will and
private affection." [5]

In Oxford Dictionary of law, administrative powers have been defined as the discretionary
powers of an executive nature that are conferred by the legislature on government, ministers,
public and local authorities and other bodies and persons for the purpose of giving detailed effect
to the policy intended by the legislature itself." [6]
Discretionary powers bestowed on the administrative authorities are of a vast range. Their power
serve the purpose of simple ministerial tasks like maintenance of birth and death register as well
as those which seriously affect the rights of an individual, e.g. acquisition of property, regulation
of trade, industry or business, inquiry, seizer, confiscation and destruction of property, detention
of a person on subjective satisfaction of an executive authority and many more. The list of their
functions is exhaustive in nature.

Basically, administrative discretion is provided to the executive using which they drive the
process of governance smoothly in the country. In short, the purpose of the discretion is to serve
the countrys citizens in the best possible way.

Why is judicial control necessary?

Judicial review is the soul of our constitution. It is the exercise of the courts inherent power to
resolve whether an action is lawful or not. It holds the balance of power between individuals
and the government. It legitimizes the application of administrative sanctions. [7]

In India, judicial review has a firm base. The framers of our constitution had not only believed in
limited government was necessary for democracy but also enshrined the philosophy in the
constitution. It is a modus operandi for public accountability of the administrative process. In this
process, it principally maneuvers as a check upon the administrative branch of the government
and the agencies operating, thereunder. According to Schwartz, the basic remedy against illegal
administrative actions is the judicial review. A person aggrieved by an agency decision or other
act may challenge its illegality in the courts. [8] Without, judicial review, administrative action
and discretion would be limited only by agency, self-discipline, executive direction, or
legislative and public pressure. Thus this control acts as a limitation on nasty abuses of power.

Courts in India are the guardians of our constitution. From time immemorial, they have believed
that executive and legislative powers which are immune from judicial scrutiny are in a way
repudiation of rule of law. Therefore for the purpose of doing justice and to protect the Rule of
Law [9] , they through their various pronouncements, have build up an assortment of
formulations to control the exercise of administrative discretion. After clubbing these
formulations, we can summarize the judicial control at the stage of exercise of discretion by the
administrative authorities into two things:

That the authority is deemed not to have exercised its discretion at all

That the authority has not exercised its discretion properly

Failure to exercise discretion

 [10] In Indian Railway Construction Co. Ltd. v. Ajay Kumar [11] , the law has been made
crystal clear. In this case the Supreme Court held that in general, The following chapter has been
divided into two sections:

Surrender, abdication or dictation of discretion- In Purtabpore Co. Ltd. V. Cane Commr. Of

Bihar [12] , the Cane Commissioner had the discretion to hold back sugarcane quarters for the
individual sugar factories. But instead of using the discretion by own will, he acted upon the
dictates of the Chief Minister. The commissioner excluded 99 villages from the area held in
reserve by him in favour of the appellant-company previously. The two judge bench of the
Supreme Court quashed the exercise of discretion by the Cane Commissioner on the ground that
he abdicated his power by exercising it at the dictation of C.M. Therefore, it was deemed that the
authority had not exercised its discretion at all. Thus, such so-called exercise of discretion
amounted to a failure to exercise discretion by the authority.

Fettering of discretion- In Shri Rama Sugar Industries Ltd. v. State of Andhra Pradesh [13] ,
Sec-21 of the Andhra Pradesh Sugarcane (Regulation, Supply and Purchase) Act, 1961 gave
discretion to the administrative authority to excuse any new factory from payment of tax. The
government framed a new policy granting exemption only to those factories in the co-operative
sector. The Supreme Court, held that the adoption of this policy has fettered the exercise of
discretion and said that an authority bestowed with such statutory discretion may justifiably
implement general rules or principles to channel itself in the exercise of its discretion provided
such rules are not arbitrary and not opposed to the objectives of the Act. The court in addition
said that by adopting such rules, the agency must not stop itself from exercising authentic
discretion in individual cases.

Authority has exercised discretion improperly

Indian courts have shown that they are pretty eager to examine the factual basis on which the
administrative authorities have exercised their discretion. Furthermore, whether the discretion
has been exercised in an unreasonable manner or absolutely in defiance of logic and morality, the
court to use the Wednesbury Test [14] of reasonableness and see whether the discretion has been
outrageously used, so much that it paved way for arbitrariness. The test suggests that the
discretion can be nullified if there is a manifested error in the exercise of such power or the
exercise of such power is manifestly arbitrary or mala fide or unreasonable. The decision could
be from numerous choices open to the authority, to exercise its choice; the court would not
surrogate its view. The court would infact strive to ensure its mala fide use.

Unreasonable exercise of discretion or violation of Wednesbury Principle: In SR Venkataraman

v. Union of India [15] , the appellant, a Central Government Officer was retired prematurely
from his service in public interest on attaining 50 years of age. According to her there was non-
application of mind on the part of the government. Her service record was made bad by giving
adverse remarks by the chairman and that in the facts and circumstances of the case the
discretion vested under Rule 56(j) (i) was not exercised for furtherance of pubic interest but on
extraneous circumstances. The government conceded that there was nothing on record to justify
the order. The Supreme Court said that an administrative order which is based on reasons of fact
which do not exist must therefore be held to be infected with an abuse of power.
Malafide Exercise of Power: In G. Sadanandan v. State of Kerala [16] , the Supreme Court held
that a mala fide exercise of discretion is nothing but abuse of power. In this case, the petitioner
challenged his detention order by the government on the ground of mala fide exercise of
discretion. The facts presented in court showed that a fake report against the petitioner who was
a wholesaler dealer in kerosene was made by the Deputy Superintendent of Police (Civil
Supplies Cell). He was actually a relative of his competitor therefore in order to benefit his
relatives in the same trade; a plot was hatched to eliminate the petitioner from the trade.
Moreover no counter-affidavit from the side of the government was filed thus, the court quashed
the order declaring improper use of discretion.

Irrelevant Considerations: In Barium Chemicals v. Company Law Board [17] , the court was of
opinion that if it is claimed that the conditions do not exist or that they are such that is not viable
for anyone to form an opinion therefrom then such opinion is challengeable on the ground of
non-application of mind or perversity or on the ground that it was formed on collateral grounds
and was beyond the scope of the statute. In this case, a board was instituted under sec-237 of the
Companies Act, 1956 which is authorized to investigate only if in its opinion the company is
trying to defraud the creditors or members, etc. but here it conducted the enquiry on the basis of
faulty management of the company which resulted in heavy downfall of the share prices.
Therefore, the court by quashing the order, said that executive by merely declaring an opinion
does not mean that the order would not be scrutinized.

Relevant Factors disregarded: In Rampur Distillery and Chemical Co. Ltd. v. Company Law
Board [18] , the Supreme Court affirming the decision of the lower Court held that since the
board has based its decision solely on the past conduct without considering subsequent conduct
and activities of the person which are relevant factors, its decision was wrong. Sometimes an
order may be based partly on relevant and partly on irrelevant considerations. In such situations
the Courts would try and find out the true purpose for which the power was exercised. After due
consideration, the Court comes to the conclusion that the purpose of the exercise was improper,
it would be irrelevant that incidentally a genuine purpose is also served. This would depend on
the facts and circumstances of each case. Therefore, where a matter is to be decided by the
authority solely on the basis of its subjective satisfaction, it must be properly based on relevant
considerations only and not a mix of both as it would be very difficult for the court to decide as
to how much the irrelevant consideration played a role in deciding ona particular course of
action. [19]

Mixed motives /colourable exercise of discretion: In Jiwani Kunar v. First Land Acquisition
Collector [20] , where the government could acquire property for a public purpose only
temporarily, and the land was acquired permanently, the court held it to be a colourable exercise
of power.

Subjective Satisfaction: The court said that administrative authoritys decision could be one of
many choices but it is for the authority to make choice. Court cannot substitute its choice; no
matter a little play in the joints is certainly possible while dealing with the subjective
satisfaction. [21] In Shalini Soni v. Union of India [22] the Supreme Court observed that it is an
unwritten rule of the law, constitutional and administrative, that whenever a decision-making
function is entrusted to the subjective satisfaction of a statutory functionary, there is an implicit
obligation to apply his mind to pertinent and proximate matters only, eschewing the irrelevant
and the remote."

Arbitrary exercise of discretion- In R.D. Shetty v. International Airport Authority of India [23] ,
the issue was regarding awarding of a contract for running a second-class restaurant and two
snack bars by the International Airport Authority, which is a statutory corporation. The right of
selection and rejection was with the Airport Director who accepted the tender from a non-
hotelier. The petitioner in this case was neither an hotelier nor tenderer. His claim was that both
the tendered were in the same position as if a necessary condition i.e., only registered hoteliers
can send tender, can be forgone then why not petitioners. The Supreme Court upheld the Locus
Standi and Jus. Bhagwati said that every action of the Executive Government must be informed
with reason and should be free from arbitrariness. That is the very essence of the rule of law and
its bare minimal requirement.

However, in all these cases the burden of prove lies on the petitioner and whereas the
administrative authorities duty would be to show that discretionary power granted was exercised
in advance for the purpose which the power was granted in the first place.