THE NATIONAL LAW INSTITUTE UNIVERSITY,

BHOPAL

ADMINISTRATIVE LAW

PROJECT

ON

JUDICIAL REVIEW OF WRONGFUL EXERCISE OF

ADMINISTRATIVE DISCRETION IN INDIA

SUBMITTED BY SUBMITTED
TO

JAYANT RAJ PROF. (DR.)

SUSHMA SHARMA

2021BALLB76 ASSISTANT PROFESSOR

SEVENTH SEMESTER

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 B.A. LL.B. (HONS.)

DECLARATION

“I, Jayant Raj S/o Surendra Kumar Sinha Roll Number 2021BALLB76
Enrolment Number A-2373 hereby declare that the project titled "JUDICIAL
REVIEW OF EXERCISE OF ADMINISTRATIVE DISCRETION IN
INDIA" is the result of my own independent research work and was completed
under the supervision of Prof. (Dr.) Sushma Sharma. In the footnotes and
bibliography, I have clearly identified the literature that I used for the purposes
of this research paper. The research work is not plagiarized, and every effort has
been made to avoid plagiarism. According to the Turnitin Report, the similarity
index is ____%. If my project is found to be copied from some other work, the
faculty concerned would have complete authority to request that I redo it. If I do
not follow the teacher's instructions, my project shall be referred to the
Committee Against the Use of Unfair Means, and I will be bound by the
Committee's judgment.”

Date: 26 September, 2024 Name: Jayant Raj

Enrolment Number: A-2373 Roll Number: 2021BALLB76

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 ACKNOWLEDGMENT

“I would like to express my gratitude to all those who have directly or indirectly
assisted me in the completion of this Project. I would especially like to thank
Prof. (Dr.) Sushma Sharma for providing her valuable input and unparalleled
guidance, without which the Project would not have been completed. I would
also like to thank the Library and the I.T. staff of NLIU Bhopal for providing
me with technical support and making resources available for the research. I
would also like to express my sincere gratitude to my parents and friends for
providing me with emotional support.”

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 REVIEW OF LITERATURE

1) PRINCIPLES OF ADMINISTRATIVE LAW BY C.K TAKWANI: The work presents the

fundamental principles of administrative law as they have developed through the
judicial process. Taking into account the recent trend of the law courts, principles of
natural justice, doctrine of judicial review and judicial remedies have been discussed
in detail with reference to decided cases.

2) PRINCIPLES OF ADMINISTRATIVE LAW BY S N JAIN:- This wonderful treatise

on the nuances of administrative law highly enriched the learner’s understanding of
the concepts of administrative law as they are explained in a lucid, easy-to-understand
language.

3) LEGISLATIVE REPORTS OF THE CONSTITUENT ASSEMBLY :- Our

forefathers, most notably the principle drafter of our Constitution, Dr. B R Ambedkar
played a pivotal role in laying down a vision by which the Indian state is to be
governed by its upcoming able and efficient administrators. By reading the aforesaid
document, the reader was able to greatly enhance his understanding on the nuances of
administrative discretion.

4) PRESS INFORMATION BUREAU WEBSITE:- The reader regularly followed the

PIB website during the course of completion of this project in order to gain better
knowledge and wisdom about the functioning of day-to-day administration in the
central government as well as the various state governments.

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 Contents
DECLARATION..........................................................................2
ACKNOWLEDGMENT...............................................................3
REVIEW OF LITERATURE.........................................................4
STATEMENT OF PROBLEM......................................................5
HYPOTHESIS.............................................................................6
RESEARCH METHODLOGY......................................................6
RESEARCH OBJECTIVES..........................................................6
RESEARCH QUESTIONS..........................................................7
INTRODUCTION........................................................................7
MEANING AND DEFINITION OF ADMINISTRATIVE
DISCRETION............................................................................. 9
ADMINISTRATIVE DISCRETION IN INDIAN SYSTEM..........10
JUDICIAL REVIEW OF WRONGFUL EXERCISE OF
ADMINISTRATIVE DISCRETION IN INDIA............................11
ADMINSITRATIVE DISCRETION IN INDIAN SYSTEM..........13
ADMINISTRATIVE DISCRETION AND INDIAN
CONSTITUTION......................................................................14
LIMITS OF ADMINISTRATIVE DISCRETION.........................15
ADMINISTRATIVE DISCRETION AND ROLE OF JUDICIARY.16
CONCLUSION......................................................................... 17
BIBLIOGRAPHY.......................................................................18

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 STATEMENT OF PROBLEM

The concept of administrative discretion is a crucial aspect of the Indian administrative

system, allowing government authorities to make decisions that are in the best interests of the
public. However, the exercise of the administrative discretion is prone to misuse, which can
lead to arbitrary, discriminatory, or unjust decisions. The issue at hand is the need for an
effective mechanism to scrutinize and correct instances of wrongful exercise of
administrative discretion in India through judicial review.

HYPOTHESIS

The aim of this project is to prove that the Indian judiciary plays a crucial role in ensuring
that administrative discretion is exercised lawfully and reasonably. This will be achieved
through a detailed analysis of relevant legal precedents and case studies. The study is
expected to demonstrate that Indian courts have consistently used judicial review
mechanisms to strike a delicate balance between administrative autonomy and protection of
citizen’s rights. As a result, the country has developed jurisprudential framework that guards
against arbitrary and improper administrative discretionary services.

RESEARCH METHODLOGY

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The mode of research used is empirical mode of research.

RESEARCH OBJECTIVES

The objective of the current study are as follows:

1) To understand meaning of administrative discretion

2) To understand the limits of administrative discretion
3) To understand the role of the judiciary with respect to administrative discretion
4) How does the judiciary exercise control at the stage of delegation of discretion?

RESEARCH QUESTIONS

 What is the meaning of administrative discretion?

 What are the limits to Administrative Discretion?
 What is the role of judiciary with respect to administrative discretion?
 How does the judiciary exercise control at the stage of delegation of discretion?

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 INTRODUCTION

While it may seem like a desirable trait for those in positions of power, it actually poses a
grave threat to individual liberty. Giving unfettered power to decision-makers without any
accountability or oversight is a recipe for abuse and corruption. Therefore, it is crucial to
strike a balance between granting discretion and ensuring transparency and accountability to
prevent the abuse of power.
The pillars of our government, as established by the constitution, include the legislative and
executive branches. However, it is not always feasible for the Parliament to legislate on every
aspect of a particular issue and delegate it solely to the administration. Occasionally, there
may be a need to leave some gaps in the legislation and allow the executive to make
decisions on a case-by-case basis. Administrative discretion can be a complex issue because
the government cannot operate without officials exercising some level of discretion. This is
not only necessary for the individualization of administrative authority, but also because it is
impossible to govern everyone in the same way. There has always been a delicate balance
between the administration’s discretion of complete discretion and the need to exercise
reasonable discretion.
Judicial review without a doubt is an immensely powerful tool that the court wields to keep
administrative authorities from abusing their power. It ensures that the common man is
treated justly and fairly, in strict accordance with the letter of the law.

ADMINISTRATIVE DISCRETION AND FUNDAMENTAL RIGHTS

The scope of fundamental rights is all-encompassing, extending to administrative discretion
to all branches of the government. Any law that grants finality to administrative decisions is
not absolute. In the case of Ram Manohar Lohia v. State of Bihar, “under the Defense of
India Rules”
Under the defense of India Rules, 2003 the authority was empowered to detain a person to
prevent sub version of public order. The petitioner was detained with the view to prevent him
from acting in a manner prejudicial to the maintenance of law and order. These disputes shall
be decided in the state of Bihar.

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 MEANING AND DEFINITION OF
ADMINISTRATIVE DISCRETION

The term “administrative discretion” pertains to the judgment exercised by administrative

personnel in carrying out their duties. To fully grasp the concept of administrative discretion,
we must first discuss discretion in general. Discretion denotes the power to make decisions
based on one’s own intelligence and judgment. Individuals have the freedom to do as they
please with their property- they may give it away, sell it, or dispose of it as they deem fit.
They can create a will if they wish to pass on their property to their heirs or sell their land if
they prefer not to. Their autonomy is inviolable. However, administrative discretion implies
they have freedom to choose among the available possibilities. They are not free to make
decisions on their own; they can only make decisions within the parameters set by the law.
Even the court uses its discretion when imposing punishment on a person. Using discretion
implies selecting a course of action from the available possibilities based on logic and
reasoning, not on personal preference.
LORD COCK- “Discretion without a criterion of its exercise is authorization of arbitrariness.
It means discretion is choosing one option from amongst alternatives. These alternatives must
be based on reasons and justice not according to personal will. This exercise must not be
capricious, blurred and bizarre; it must be legal and regular.”
MR. JUSTICE FRANKFURTER- “Discretion without a criterion of its exercise is
authorization of arbitrariness. It means discretion is choosing one option from amongst
alternatives. These alternatives must be based on reasons and justice not according to
personal will. This exercise must not be capricious, blurred and bizarre; it must be legal and
regular.”
LORD ATKIN- “According to English jurisprudence any member of executive may not
interfere with the property and liberty without this condition that he will also express the
legality of his act before the court.”
“Administrative actions are either ministerial or discretionary. A ministerial action where the
authorities have duty to do a thing in a particular way. Such actions, however, are
exceptional. In most administrative actions, the administrative authorities have the power
either to act or not to act in one way or the other. This power to act or not to act in one way or
the other is called discretionary power. Discretion is the power to decide or act according to
one’s judgment.”
In other words, we can say freedom of authority.
PROFESSOR DICEY criticized it, he thought that discretion is the source of inequality,
discrimination and arbitrary action. It is a clear-cut violation of the rule of law. The current
socio-economic climate has presented unexpected challenges for the administration, resulting
in a decrease in ministerial powers and an upsurge in discretionary powers. It is widely
recognized that a government operating solely on ministerial powers and an upsurge in

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discretionary powers. It’s widely recognized that a government operating solely on
ministerial

powers tends to become rigid and unresponsive. This is why it’s essential to empower
administrative officers to determine when, how and which powers they exercise. This
approach is grounded in the recognition that administrative authorities are frequently faced
with complex issues such as fact-finding and investigation. As a result, contemporary
thinking supports the allocation of significant discretionary powers to the administration. As
per the legal provisions, the government holds the ability to establish regulations that align
with the goals of relevant legislation, as deemed necessary. In essence, the legislative body
has granted the government power to devise such rules as they see fit and determine the
appropriate time and place for their implementation.

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 ADMINISTRATIVE DISCRETION IN INDIAN
SYSTEM

In India, the concept of a welfare state has been embraced, which necessitates the
administration to have discretionary powers to accomplish its goals. The government is now
involved in and intervenes in all public matters. In the past, the state was only concerned with
ministerial duties and had no interest in public affairs. However, presently the state is
responsible for both public and state development, and thus the entire burden of
responsibilities falls on the administration. Without discretionary powers, administrative
officers are unable to make the timely decisions that are essential to achieve the welfare
concept. Consequently, the state has granted them discretionary powers. In today’s world, it is
essential for administrative authorities to possess discretionary power. It is impractical to
predict every possible scenario that may surface, thus requiring prompt action based on
specific events. Administrators must employ their granted power wisely to ensure an
appropriate response.
“What is to be done if a riot breaks out? What is to be done if an essential commodity
becomes scarce and suddenly goes out of market? Some actions depend upon an assessment
of the situation by administrative authorities. And therefore, the concept of administrative
discretion comes into picture.
Without this, there is scope of misuse of power granted to the law making and law
enforcement bodies as envisaged by the constitution of India. Thus, the project explores
various dimensions of administrative discretion to be exercised in India, as well as the world.

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JUDICIAL REVIEW OF WRONGFUL EXERCISE OF
ADMINISTRATIVE DISCRETION IN INDIA

In Brahma Textiles v. State of Orissa, the Supreme Court faced several key issues regarding
the exercise of judicial review, the existence of a justiciable controversy, the applicability of
the exhaustion of administrative remedies, the standing of the petitioners, and whether the
contested issuances were made in violation of laws with grave abuse of discretion.

Key Issues Addressed:

1. Judicial Review: The Court confirmed its power to engage in judicial review, particularly
in instances where government actions might involve grave abuse of discretion.

2. Actual Case or Controversy: The Court established that there was a justiciable issue at
hand that warranted judicial intervention.

3. Exhaustion of Administrative Remedies: The applicability of this doctrine was evaluated.

The Court determined whether the petitioners needed to exhaust other remedies before
seeking judicial review.

4. Legal Standing: The standing of the petitioners to file the petition was assessed,
considering their direct interest in the matter.

5. Violation of Laws and Grave Abuse of Discretion: The Court examined whether the
issuances in question were issued in violation of laws and constituted a grave abuse of
discretion.

Specific Concerns Addressed:

6. Vagueness of Standards: The Court looked into whether the contested issuances were void
due to their reliance on vague and unclear standards from the Social Security Act.

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7. Necessity and Oppression of Contribution Increases: The Court analyzed whether the
increase in contributions to the Social Security System was necessary for achieving its
objectives and whether it was unduly oppressive on the labor sector.

8. Fairness of Contribution Ratios: Lastly, the Court scrutinized the revised contribution
ratios between employers and employees to determine if they were unjust to the working
class and exceeded the authority of the Social Security Commission.

Judicial Power and Scope:

In Judicial Department v. Rani Laxmi Sahiba, the Punjab & Haryana High Court reinforced
that judicial power encompasses the duty to resolve actual controversies involving
enforceable rights and to ascertain whether any government body has acted beyond its
jurisdiction with grave abuse of discretion. The Court acknowledged that the 1987
Constitution expanded judicial powers, allowing courts to examine government actions more
rigorously.

Conclusion:
The issues raised in both cases reflect a broader commitment to ensuring that governmental
actions remain within legal bounds and that the rights of individuals, particularly the working
class, are protected against potential abuses. The courts' willingness to engage in these
matters underscores the evolving understanding of judicial power in contemporary
jurisprudence.

In Francisco v. The House of Representatives, we recognized that this expanded jurisdiction

was meant "to ensure the potency of the power of judicial review to curb grave abuse of
discretion by 'any branch or instrumentalities of government.'" Thus, the second paragraph of
Article VIII, Section 1 engraves, for the first time in its history, into black letter law the
"expanded certiorari jurisdiction" of this Court, whose nature and purpose had been provided
in the sponsorship speech of its proponent, former Chief Justice Constitutional Commissioner
Roberto Concepcion
The first section starts with a sentence copied from former Constitutions. It says:
The judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by the courts which has the pertinent jurisdiction.
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine whether or

13
not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the government.
Fellow Members of this Commission, this is actually a product of our experience during
martial law. As a matter of fact, it has some antecedents in the past, but the role of the
judiciary during the deposed regime was marred considerably by the circumstance that in a
number of cases against the government, which then had no legal defense at all, the solicitor
general set up the defense of political question and got away with it. As a consequence,
certain principles concerning particularly the writ of habeas corpus, that is, the authority of
courts to order the release of political detainees, and other matters related to the operation and
effect of martial law failed because the government set up the defense of political question.
And the Supreme Court said: "Well, since it is political, we have no authority to pass upon
it." The Committee on the Judiciary feels that this was not a proper solution of the questions
involved. It did not merely request an encroachment upon the rights of the people, but it, in
effect, encouraged further violations thereof during the martial law regime.
Briefly stated, courts of justice determine the limits of power of the agencies and offices of
the government as well as those of its officers. In other words, the judiciary is the final arbiter
on the question whether or not a branch of government or any of its officials has acted
without jurisdiction or in excess of jurisdiction, or so capriciously as to constitute an abuse of
discretion amounting to excess of jurisdiction or lack of jurisdiction. This is not only a
judicial power but a duty to pass judgment on matters of this nature.
This is the background of paragraph 2 of Section 1, which means that the courts cannot
hereafter evade the duty to settle matters of this nature, by claiming that such matters
constitute a political question.33 (Emphasis in the original, citations omitted)
Rule 65, Sections 1 and 2 of the Rules of Court provides remedies to address grave abuse of
discretion by any government branch or instrumentality, particularly through petitions
for certiorari and prohibition:

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 ADMINSITRATIVE DISCRETION IN INDIAN
SYSTEM

In India, the concept of a welfare state has been embraced, which necessitates the
administration to have discretionary power to achieve its goals. The government is now
involved in and intervenes in all public matters. In the past, the state was only concerned with
ministerial duties and had no interest in public affairs. However, the state is responsible for
both public and state development, and thus, the entire burden of responsibilities falls on the
administration. Without discretionary powers, administrative officers are unable to make
timely decisions that are essential to achieve the welfare concept. Consequently, the state has
granted them discretionary powers. In today’s world, it is essential for administrative
authorities to possess discretionary power. It is impractical to predict every possible scenario
that may surface, thus requiring prompt action based on specific events. Administrators must
apply granted power wisely to ensure an appropriate response.
“What is to be done if a riot breaks out? What is to be done if an essential commodity
becomes scarce and suddenly goes out of market? Some actions depend upon an assessment
of the situation by administrative authorities. Expressions such as if he is of the opinion or if
he is satisfied or if he has reasonable grounds to believe vest power in the authority to act on
framing an opinion or being satisfied that the action is necessary. All such actions are
discretionary.”
“Supreme Court had held that in the respect of discretionary power given under statute to
administration. It is expected that the use of discretionary powers would be based on fair, just
and reasonableness. It must not be based on individual interest or will. It must not be
doubtful, arbitrary or imaginary. It must be under within the limits, which is expected within
a genuine person.”

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 ADMINISTRATIVE DISCRETION AND INDIAN
CONSTITUTION

Legislation passed by a competent governing body cannot be disputed on the basis of alleged
bad intentions or unclear objectives. Any law that confers discretion to the executive must
have clear limitations on how that discretion may be exercised. Our constitution contains
provisions that address the exercise of discretion. The President of India holds the highest
office of the land and wields significant discretionary authority. Article 352 outlines specific
conditions that, if met, allow the President to declare a national emergency. The President of
India is entrusted with special powers, including the ability to enact and enforce ordinances,
dissolve the Lok Sabha when no party holds a majority, and exercise discretion in calling for
government formation. Furthermore, under Articles 72 and 161, they possess the authority to
grant pardon or remission of sentences to those who have been convicted of offences by a
court of law. It should be noted that these powers under Article 356, which permit the
imposition of presidential rule on a state, are not arbitrary in nature and are subject to certain
restrictions.
Judges also have some discretion in exercising their power, as they can choose between
choosing imprisonment or a fine, or both, when convicting a guilty person.

LIMITS OF ADMINISTRATIVE DISCRETION

Court may control it on certain grounds. No discretion can be absolute. There are some
restrictions to it;

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  Discretion must be exercised by the authorized authority with the appropriate
intent.
 Delegates cannot transfer their powers to others; sub-delegation is
unconstitutional unless explicitly allowed in the parent Act that grants those
powers.
 An authorized person cannot exempt themselves from liability through
permanent rules; no one can evade their responsibilities.
 Discretion must be aimed at public welfare and should not exceed legal
boundaries. If a procedure is specified, it must be followed; if not, a reasonable
process should be applied. If administrative authorities fail to comply, courts can
declare their actions unconstitutional.
 When exercising discretion, an officer must engage their judgment and not act
mechanically.
 Discretion should be based on relevant factors.
 Discretion can be revoked if there is evidence of bad faith.
 Courts have the authority to review administrative actions based on these
criteria, meaning discretion is not absolute and can be subject to judicial
oversight.

ADMINISTRATIVE DISCRETION AND ROLE OF

JUDICIARY

In England, the principle of parliamentary sovereignty grants administrative officials the

freedom to exercise their discretion without any legislative restrictions. However, in other
common law countries that have written constitutions guaranteeing fundamental human
rights, legislative power is regulated and constrained. The Indian courts have highlighted that
endowing administrative authorities with unbridled discretion may be incompatible with the
fundamental rights protected by Part III of the Constitution. As a result, such authorization
has been invalidated in several cases since the enactment of the Constitution. In order to
ensure that the rule of law is maintained, the government is only permitted to infringe upon
an individual’s rights if they have the legal authority to do so. This authority must be clearly
defined in terms of its scope, area of relevance, and substance, so that citizens have a clear

17
understanding of the extent of any potential intrusion. This approach also allows citizens to
calculate the degree of interference to some extent.
The court has decisively adopted numerous new concepts to restrict discretion, including the
doctrine of ultra vires, arbitrary use of discretion, wrong motive, irrelevant consideration,
malice, unreasonableness and administrative discretion.
The Supreme Court in the case Nalini v. District Magistrate, “has held that under the relevant
statute power was conferred on the authority to rehabilitate persons displaced from Pakistan
as a result of communal violence but it was exercised to accommodate a person who had
come Pakistan on a medical leave. The order was set aside.”

In Maneka Gandhi v. UOI, “the supreme court held that an order passed under section 10(3)
(c) of the Passport Act, 1967, empowering for impounding a passport could be declared bad
under Article 19(1)(a) & (g) if it imposes unreasonable restrictions on the freedoms covered
by the two clauses.
The court has held in Ajay Hasia v. Khalid Majid, “that allocation of 33.3% of the total marks
to oral interview is arbitrary as there are many deficiencies in such a test and it leads to
deterioration in moral values. In the opinion of the court, not more than 15% will be allotted
to viva voce and that the test should be properly conducted. Justice P N Bhagwati stated that,
it is well settled rule of administrative law that an executive authority must be rigorously held
to the standards by which it professes its action to be judged and it must scrupulously observe
those standards on pain of invalidation of an act in violation of them.”
Supreme Court held the regulation to be extremely arbitrary, unreasonable, abhorrent to the
notions of a civilized society and interfering with the ordinary course of human nature.

CONCLUSION

In order to reach newer horizons, I have done thorough study of the Law of Administration
and its impact on the law of administration. The conclusion arrived at is stated below:
The law relating to administration in India has come a long way in India through the
formulation of various laws and various ordinances passed by the state governments in order
to enhance the public good. Thus, it is expedient to note that exercising discretion so as to
prevent abuse of power and to see that it does not become a “new despotism”, courts have
evolved certain principles to be observed by adjudicating authorities.
The various case laws advise as well as educate us to exercise our administrative discretion in
a manner which is beneficial to both welfare of the citizens as well as keeping the larger good
in consideration.

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Various judicial decisions have paved the way for cautionary exercise of the discretion in the
exercise of power vested to the administrators and also to inculcate the habit of thinking in
the minds of the future administrators so as to be able to guide the destiny of the Indian state.

BIBLIOGRAPHY

1. [Link]
review
2. [Link]
[Link]
3. “Administrative Law” by DR. CK TAKWANI
4. Law of Administration by S N JAIN,(12th Edition)
5. GOVERNMENT OF INDIA ACT, 1948 – BARE ACT
6. Indian Limitation Act, 1963 – BARE ACT

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7. [Link]
%20INTRODUCTION%20by%20Prabhat%[Link]
8. [Link]

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