Module 4

I. What is administrative discretion? Explain thoroughly the

grounds of judicial review of administrative discretion. – 15
Marks
Grounds of Judicial Review – 5 Marks

Introduction
A significant phenomenon of the present-day administrative process is the conferment of
discretionary powers on administrative personnel to take decisions from case to case.
Because of the complexity of socio-economic conditions which the administration in modern
times has to contend with, the range of ministerial functions is very small and that of
discretionary functions much larger. The modern tendency is to leave a large amount of
discretion with various authorities
Meaning and Definition
According to Edward Coke - “Discretion is a science or understanding to discern between
falsity and truth, between right and wrong, between shadows and substance, between equity
and colourable glosses and pretences, and not to do according to their wills and private
affections.”
Discretion in a lay person’s language can mean choosing from amongst the various available
alternatives without reference to any predetermined criterion, no matter how fanciful that
choice may be.
There are following good reasons for conferring discretion on administrative authorities:
(a) The present-day problems which the administration is called upon to deal with are of
complex and varying nature and it is difficult to comprehend them all within the scope of
general rules;
(b) Most of the problems are new, practically of the first impression. Lack of any previous
experience to deal with them does not warrant the adoption of general rules’
(c) It is not always possible to foresee every problem but when a problem arises it must, in
any case, be solved by the administration in spite of the absence of specific rules applicable
to the situation’,
(d) Circumstances differ from case to case so that applying one rule mechanically to all cases
may itself result in injustice.
Grounds for Judicial Review of Administrative Discretion The main grounds for reviewing
the administrative discretion, may be classified as under:
1. Ultra-Vires
The doctrine of ultra-vires states that a person or authority acting under statutory power can
do only those things which are statutorily [Link] case of failure to do so, the doctrine
permits the courts to strike down the decision made by the bodies exercising the public
functions.
Khoday Distillaries Ltd. v. State of Karnataka

That the act of the administrative authority can be struck down if it is manifestly
unreasonable and arbitrary.
 The test of reasonableness plays a significant part in the governance of the country.
 It can always be pointed whether the authority has a reasonable ground exercising
judgement.
2. Abuse of Power
It has been seen that administrative bodies do not exercise their discretionary power for the
purpose intended to by the legislature. All these factors amount to the abuse of discretionary
powers and become ground for judicial review.
i. Irrelevant Consideration
If the authority concerned pays attention to, or takes into account wholly irrelevant or
extraneous circumstances, events or matters, then the administrative action is ultra-vires and
bound to be [Link] legal education courses
ii. Improper Purpose
If the statutory authority exercises discretion for a different purpose the actions taken may be
quashed on the ground to have exercised that power for improper purpose.
iii. Errors of Law
Syed Yakoob v. K. S. Radha Krishnan
Court observed:
 An error of law which is apparent on the face of record can be corrected by a writ but
not an error of fact, however, grave it may appear to be.
 The only case where a finding of fact might be impugned on the ground of error of
law apparent on the face of record are
 erroneously refusing to admit admissible and material evidence,
 erroneously admitting inadmissible evidence which influenced the
finding, and
 a finding of fact based on no evidence.
iv. Unauthorised Delegation
The principle is that when a power entrusted to a person in circumstance indicating that trust
is being placed in his individual judgement and discretion, he must exercise that power
personally unless he has been expressly empowered to delegate it to another.

v. Fettering of Discretion
When a statute confers powers on an authority to apply a standard as the case in
administrative discretion, it is expected of it to apply it from case to case, and not fetter its
discretion by declaration of rules or policy to be followed uniformly in all the cases.
3. Proportionality
The doctrine of proportionality is emerging as a new ground of challenge for judicial review
of administrative discretion.
It is a recognised general principle of law evolved with a purpose to maintain a proper
balance between any adverse effects which its decision may have on the rights, liberties or
interests of persons and the purpose it pursues.
The doctrine of proportionally endavours to confine the exercise of discretionary powers of
administrative authority to mean which are proportioned to the object to be pursued.
The courts while invoking the doctrine of proportionality may quash the exercise of powers
in which there is not a responsible relationship between the objective which is sought to be
4. Unreasonable Exercise of Discretionary Power
The term unreasonableness embraces a wide variety of defects including misdirection,
improper purpose, disregard of relevant considerations and advertence to immaterial factors.
Associated Provincial Picture Homes Ltd. v. Wednesbury Corporation
The Court observes:
 There may be something so absurd that no sensible person could ever dream that it lay
within the power of authority.
 The fact is that all powers exercised by the public authorities are liable to be misused.
 The courts are, therefore, vigilant to check the misuse of public power which is the
subject matter of judicial review.
5. Irrationality
The term irrationality and 'unreasonableness' are often used interchangeably. However,
irrationality may be said to be only one facet of unreasonableness. A decision is said to be
irrational if it is unreasoned; if it is lacking ostensible logic or comprehensible justification.
6. Procedural Impropriety
Procedure 'deals with the structure' of decision making and not the quality or impact of the
decision themselves. Another important concern of the procedural justice is to promote the
quality, accuracy and rationality of decision-making process. In case there is procedureal
impropriety, the court can interfere.
7. Jurisdictional Error
The court have held that the administrative authority cannot go into the question of validity of
substantive law or procedure laid down in the statute or the rules framedthereunder since it
itself is creature of statute.
The doctrine of ultra-vires permits the courts to strike down decision made by administrative
bodies exercising public functions, if they exceed the jurisdiction provided in the statute
under which they exercise their powers.
8. Acting under Dictation
The cardinal principle of administrative law is that an authority entrusted with a discretion
must not, in the purported exercise of its discretion, act under the dictation of another body.
9. Malice or Malafide
It is not only the power but the duty of the court to ensure that all authorities exercise their
powers properly, lawfully and in good faith.
If the powers are exercised with oblique motive, in bad faith or for extraneous or irrelevant
considerations, there is no exercise of power known to the law and action cannot be termed
as, action in accordance with law.
10. Colourable Exercise of Powers
The courts have used this doctrine to denounce an abuse of discretion which speaks that
under the 'colour' or 'guise' or power conferred for one purpose, the authorities seek to
achieve something else which is not authorised to do so under the law in question.
State of Bihar v. Shree Baidyanath Ayurved Bhawan Pvt. Ltd.
It may be pointed out here that if a lawful object is chosen as a colour or guise for doing
something other than genuinely achieving that object, the action would be termed as
colourable exercise of power and it cannot be sustained in the eyes of law as it is mala-fide
exercise of the power.

II. Explain in detail the Doctrine of legitimate expectations,

Doctrine of Proportionality and Public Accountability. – 15
Marks
Doctrine of legitimate expectations – 5 Marks

Doctrine of legitimate expectations

The doctrine of legitimate expectation belongs to the domain of public law. Doctrine of
Legitimate Expectation was created to hold governmental action accountable. It is quite
difficult to claim reliefs from governmental policies and statutes; hence, this doctrine was
intended to give relief to people from governmental actions even when they cannot claim a
right under strict understanding of law. It provides a central space between ‘right’ and ‘no
right’, wherein a pubic authority can be made accountable on grounds of an expectation,
which is, legitimate.
Legitimate Expectation May Arise:
  if there is an express promise given by a public authority; or
 because of the existence of a regular practice which the claimant can reasonably
expect to continue;
 such an expectation must be reasonable

Legitimate expectations can be classified into two types:

 Procedural legitimate expectation: This is the expectation of a fair and transparent

process before a decision affecting one’s rights or interests is made by the authority.
For example, a person may have a legitimate expectation to be given a hearing or a
notice before their license is revoked.

 Substantive legitimate expectation: This is the expectation of a favorable outcome

or a benefit from the authority based on its promise, practice, or policy. For example,
a person may have a legitimate expectation to receive a grant or a subsidy if they meet
the eligibility criteria.

Legitimate expectation is not an absolute right but a ground for judicial review of
administrative actions. If the authority breaches the legitimate expectation of a person or a
group of people, the court may intervene and order the authority to:
 Fulfill the legitimate expectation.
 Provide a valid justification for departing from the legitimate expectation.
 Compensate the affected person or group for the loss or damage caused by the breach.
State of Bihar vs. Bihar Distillery Ltd. (1997):
The Supreme Court held that the doctrine of legitimate expectation cannot be based on an
illegal or irrational expectation, and the respondent company had no legitimate expectation of
getting a renewal of its license to manufacture liquor, as it was contrary to the prohibition
policy of the state government and the public interest.

Doctrine of Public Accountability.

The Doctrine of Public Accountability mandates that public officials and institutions are
answerable to the public for their actions and decisions. It ensures that those in power
exercise their authority responsibly, transparently, and in the public interest. This doctrine is
fundamental to maintaining trust between the government and its citizens, promoting
transparency, and preventing misuse of power.
Need for doctrine
Public corruption is as old as public administration itself. The drive of countries to become
social welfare states has inevitably led to an expansion of bureaucracy, both in size and
number. This expansion has subsequently led to an enormous amount of work for the
administrative authorities and the use of their discretion and power. It is an old adage that
discretion and power always carry with them the possibility of abuse.
Public accountability can be categorized into:
 Political Accountability: Ensures that elected officials are answerable to the
electorate for their actions and decisions.
 Administrative Accountability: Pertains to the responsibility of public servants to
adhere to laws, regulations, and ethical standards in their duties.
 Legal Accountability: Involves holding public officials accountable through legal
means, such as judicial review and legal proceedings.
For effective public accountability, the following elements are essential:
 Transparency: Availability of information regarding government actions and
decisions.
 Responsiveness: Government’s willingness to address public concerns and feedback.
 Enforcement Mechanisms: Legal and institutional frameworks to hold public
officials accountable.
FORMS / MODES
Public accountability is manifested through:
 Legislative Oversight: Parliamentary committees scrutinize government actions and
expenditures.
 Judicial Oversight: Courts review administrative actions to ensure they comply with
the law.
 Public Participation: Engaging citizens in decision-making processes, such as public
consultations and hearings.
Several legal provisions uphold public accountability in India:
 Right to Information Act, 2005: Empowers citizens to access information from
public authorities, promoting transparency.
 Public Servants (Inquiries) Act, 1850: Provides a mechanism for the removal of
public servants on grounds of misconduct.
 Judicial Review: Allows courts to examine the legality of administrative actions.
Doctrine of Proportionality
Proportionality is a ground for judicial review. In India, the doctrine of proportionality was
adopted by the Supreme Court of India in the case of Om Kumar v. Union of India
Proportionality means that the administrative action should not be more drastic than it ought
to be for obtaining the desired result.
The ordinary sense of proportionality is that it should not be more extreme than it should be
to achieve desired results. It means can not use canon to fire a sparrow. This philosophy, in
other words, seeks to balance means with ends.
Background of the Doctrine of Proportionality
The Doctrine of Proportionality originated in Europe. It is a significant principle in European
Administrative Law. It has long been considered part of the Wednesbury Principle of
reasonableness in the United Kingdom. The Wednesbury Principle states that if a decision is
so unreasonable that no sensible authority could ever take it, such decisions are liable to be
quashed through judicial review. This sets out the standard of reasonableness to be followed
by public bodies in their decisions.
The doctrine of proportionality has four main components:
 Suitability: The measure must be suitable or appropriate for achieving the objective.
 Necessity: The measure must be necessary or indispensable for achieving the
objective. There must be no less restrictive alternative available.
 Proportionality in the strict sense: The measure must be proportional or balanced in
relation to the objective. The benefits of the measure must outweigh the costs or harm
to the rights and interests of the affected parties.
 Fair balance: The measure must strike a fair balance between the general interest of
the community and the individual rights of the persons concerned. The measure must
not impose an excessive or disproportionate burden on individuals.
India’s Approach Towards the Doctrine of Proportionality
In India, adopting the broad European notion of proportionality has yet to occur. The concept
is used in a restricted sense by the courts as it contradicts the common-law judicial review
traditions.
The SC has been applying the proportionality principle to legislative activities since 1950.
The principle is applied as a part of Article 14 of the Constitution rather than as a standalone
principle.
Under Article 14, an arbitrary administrative action is subject to scrutiny.
o The question is whether the administrative order is rational or reasonable, with
the Wednesbury test as the standard.
o If the administrative action is arbitrary, it can be struck down under Article
14.
o The court uses a very rigorous form of proportionality in the case of
administrative penalties.
o Indian courts, in terms of Article 14, examine whether the classification is based on
intelligible differentia. They analyse if the differentia has a reasonable connection to
the legislation's goal.