ADMINISTRATIVE LAW

UNIT – 3
ADMINISTRATIVE DISCRETION
1.INTRODUCTION
The fundamental freedoms guaranteed by the Indian Constitution are not absolute meaning
thereby that they are subject to certain limitations, the parameters of which have been defined
by the Constitution itself. These limitations are usually known as “reasonable restrictions”,
which are provided under clauses 2 to 6 of Article 19 of the Indian Constitution.
Administrative discretion is one of the manners in which the executive can afflict the
enjoyment of fundamental freedoms of the Indian citizens.
2.MEANING OF ADMINISTRATIVE DISCRETION
It means the freedom of an administrative authority to choose from amongst various alternatives
but with reference to rules of reason and justice and not according to personal whims. The exercise
of discretion should not be arbitrary, vague and fanciful, but legal and regular. The government
cannot function without the exercise of some discretion by its officials. Therefore there needs to be
a system in place to ensure that administrative discretion is exercised in the right manner. Freedom
to choose from various alternatives allows the administration to fashion its best response to various
situations. If a certain rule is found to be unsuitable in practice, the administration can change,
amend or abrogate it without much delay.

3.ADMINISTRATIVE DISCRETION AND FUNDAMENTAL RIGHTS IN INDIA

Article 14 of the Indian Constitution, which confers the right to equality upon the people, and
which prohibits class legislation is a good source for judicial scrutiny of administrative
discretion and has been frequently invoked. The general judicial view is that any conferment
of discretion to authority without being regulated by any rules and regulation is arbitrary and
hence violative of Article 14 of the Indian Constitution.
Article 19 guarantees certain freedoms to the citizens of India, but they are not absolute. Reasonable
restrictions can be imposed on these freedoms under the authority of law. The reasonableness of
the restrictions is open to judicial review. These freedoms can also be afflicted by administrative
discretion.

4. ABUSE OF ADMINISTRATIVE DISCRETION

The courts in India have developed various formulations to control the exercise of administrative
discretion, which can be grouped under two broad heads, as under:1. Authority has not exercised its
discretion properly- ‘abuse of discretion’. 2. Authority is deemed not to have exercised its discretion
at all- ‘non-application of mind.

4.1 Mala fides: If the discretionary power is exercised by the authority with bad faith or dishonest
intention, the action is quashed by the court. Malafide exercise of discretionary power is always bad
and taken as abuse of discretion. Malafide (bad faith) may be taken to mean dishonest intention or
corrupt motive.

4.2Irrelevant considerations: If a statute confers power for one purpose, its use for a different
purpose is not regarded as a valid exercise of power and is likely to be quashed by the courts. If the
administrative authority takes into account factors, circumstances or events wholly irrelevant or
extraneous to the purpose mentioned in the statute, then the administrative action is vitiated.

1|Page
4.3 Leaving out relevant considerations: The administrative authority exercising the discretionary
power is required to take into account all the relevant facts. If it leaves out relevant consideration,
its action will be invalid.

4.4 Arbitrary orders: The order made should be based on facts and cogent reasoning and not on the
whims and fancies of the adjudicatory authority.

4.5 Improper purpose: The discretionary power is required to be used for the purpose for which it
has been given. If it is given for one purpose and used for another purpose it will amount to abuse of
power.

4.6 Colourable exercise of power: Where the discretionary power is exercised by the authority on
which it has been conferred ostensibly for the purpose for which it has been given but in reality for
some other purpose, it is taken as colourable exercise of the discretionary power and it is declared
invalid.

4.7 Non-compliance with procedural requirements and principles of natural justice: If the
procedural requirement laid down in the statute is mandatory and it is not complied, the exercise of
power will be bad. Whether the procedural requirement is mandatory or directory is decided by the
court. Principles of natural justice are also required to be observed.

4.8 Exceeding jurisdiction: The authority is required to exercise the power within the limits or the
statute. Consequently, if the authority exceeds this limit, its action will be held to be ultra vires and,
therefore, void.

5.JUDICIAL REVIEW OF ADMINISTRATIVE DISCRETION

In India the modes of judicial control of administrative action can be conveniently grouped into three
heads:

5.1 CONSTITUTIONAL The Constitution of India is supreme and all the organs of state derive
their existence from it. Indian Constitution expressly provides for judicial review. Consequently, an
Act passed by the legislature is required to be in conformity with the requirements of the
Constitution and it is for the judiciary to decide whether or not that Act is in conformity with the
Constitutional requirements. If it is found in violation of the Constitutional provisions the Court has
to declare it unconstitutional and therefore, void

5.2Statutory The method of statutory review can be divided into two parts: (i) Statutory appeals:
There are some Acts, which provide for an appeal from statutory tribunal to the High Court on point
of law. e.g. Section 30 Workmen’s Compensation Act, 1923. (ii) Reference to the High Court or
statement of case: There are several statutes, which provide for a reference or statement of case by
an administrative tribunal to the High Court. Under Section 256 of the Income-tax Act, 1961 where
an application is made to the Tribunal by the assessee and the Tribunal refuses to state the case the
assessee may apply to the High Court and if the High Court is not satisfied about the correctness of
the decision of the Tribunal, it can require the Tribunal to state the case and refer it to the Court.

5.3 Ordinary or Equitable Apart from the remedies as discuss above there are certain ordinary
remedies, which are available to person against the administration, the ordinary courts in exercise of
the power provide the ordinary remedies under the ordinary law against the administrative
authorities. These remedies are also called equitable remedies and include:

(A)Injunction An injunction is a preventive remedy. It is a judicial process by which one who has
invaded or is threatening to invade the rights of another is restrained from continuing or
commencing such wrongful act. In India, the law with regard to injunctions has been laid down in the

2|Page
Specific Relief Act, 1963. Injunction is issued for restraining a person to act contrary to law or in
excess of its statutory powers. Injunction may be prohibitory or mandatory

(B) Declaratory Action In some cases where wrong has been done to a person by an administrative
act, declaratory judgments may be the appropriate remedy. Declaration may be taken as a judicial
order issued by the court declaring rights of the parties without giving any further relief. Thus a
declaratory decree declares the rights of the parties. In such a decree there is no sanction, which an
ordinary judgment prescribes against the defendant. By declaring the rights of the parties it removes
the existing doubts about the rights and secures enjoyment of the rights. It is an equitable remedy. It
is a discretionary remedy and cannot be claimed as a matter of right.

(C) Action for damages If any injury is caused to an individual by wrongful or negligent acts of the
Government servant, the aggrieved person can file suit for the recovery of damages from the
Government concerned.

6.JUDICIAL REVIEW

The biggest check over administrative action is the power of judicial review. Judicial review is the
authority of Courts to declare void the acts of the legislature and executive, if they are found in
violation of provisions of the Constitution. Judicial Review is the power of the highest Court of a
jurisdiction to invalidate on Constitutional grounds, the acts of other Government agency within that
jurisdiction. The doctrine of judicial review has been originated and developed by the American
Supreme Court, although there is no express provision in the American Constitution for the judicial
review. The judicial review is not an appeal from a decision but a review of the manner in which the
decision has been made. The judicial review is concerned not with the decision but with the decision
making process. The power of judicial review controls not only the legislative but also the executive
or administrative act. The Court scrutinizes the executive act for determining the issue as to whether
it is within the scope of authority or power conferred on the authority exercising the power. Where
the act of executive or administration is found ultra virus the Constitution or the relevant Act, it is
declared as such and, therefore, void.

7.CONCLUSION

3|Page