JUDICIAL REVIEW OF

ADMINISTRATIVE
DISCRETION
“Where discretion is absolute, man has always suffered”

• Discretion is when the administrative authority has a chance to make a free choice between possible
courses of action – where there is room for reasonable people to hold different opinions– should be
based on evidence but not always necessary.

• Discretion is conferred along with responsibility that it is exercised honestly and reasonably.

• Judicial review of Admin action is a basic check on administrative discretionary powers.

• To ensure that the authority does not abuse its power and the individual is treated fairly

• Constitutional duty of the judiciary to keep all organs within limits created by the Constitution

• Balance between the JR on one hand and administrative discretion to effectively perform functions on
the other.
• An administrative order may be right or wrong – that is not subject to JR; JR is of how the
decision was taken – whether it is constitutional and legal or not – if this guideline is not
followed, judiciary will become usurper of power and not the protector against abuse of power.

• Courts should confine to questions of legality – whether PNJ were followed, if there is an error of
law or it is a decision that a reasonable man would have taken – not to act as a court of appeal.

• JR is a protection and not a weapon

• 3 main grounds – illegality, irrationality and impropriety – now proportionality also added

• In india, - courts interfere with discretionary powers in following circumstances –

• Failure to exercise discretion
• Excess or abuse of discretion
FAILURE TO EXERCISE DISCRETION
• Cases where the Administrative authority is supposed to exercise discretion and
does not do it –
a. Sub-delegation –
• When the authority is conferred the discretion to decide and instead it is sub delegated – trust
was based in the authority’s judgement and discretion and it is delegated to someone else
• Proper test to judge whether sub delegation is valid or not is to find out with whom does the
final authority lie.

b. Imposing fretters on discretion-

• If uniform policy becomes an obstacle in way of considering each case on its merits and
circumstances, it is failure to exercise discretion
• By adopting a general rule where discretion is allowed, discretion is actually negated.
• Also called “shutting ears” – not applying mind when discretion could be used
c. Acting under dictation
• Decision taken by him in his name but in substance under dictation from a superior authority – discretion is
abdicated
• This check protects against political misuse of power
• Difference in seeking advice and acting under dictation – dictation negates all the other possible courses of
action that he could choose on his discretion
• Ex – an act was committed under TADA – DSP did not give approval but requested Addl chief secretary to
grant permission for detention – just because DSP asked someone else to do it doesn’t mean that there was
no dictation

d. Non application of mind

• When authority acts mechanically, without due care and caution – failure to exercise discretion and decision
is bad
• Barium chemicals v Company law board – order of investigation against the petitioner Co. passed by the CG –
CG was empowered to issue the order if there are circumstances suggesting fraud on part of the
management – necessary to state the reasons that led the CG to believe that fraud ws present.
• Jagannath Mishra v St of Orissa – order of detention had 6 grounds verbatim as mentioned in the law – non
application of mind by the Minister as to exactly which of the 6 grounds are satisfied to order detention
e. Power coupled with duty
• When power given to authority to be exercised on fulfilment of certain duty and the duty not performed
EXCESS OR ABUSE OF DISCRETION
a. Acting without discretion –
• Acting when there is no power to use discretion.
• If the govt has the discretion to refer an industrial dispute to a tribunal for
adjudication, cannot refer a dispute which is not an industrial dispute
• Authority imposes tax on a commodity that is exempted from taxation by the parent
law.

b. Excess of jurisdiction –
• Discretion used in excess of what is allowed
• Allowed to give loan till 10,000 but loan of 20,000 given
• If authority allowed to give medical aid to employees, giving aid to family members is
excess of jurisdiction
c. Arbitrary action –
• When acted on the basis of prejudice or bias rather than on facts
• When discretion is not conferred within clear limits and decisions are taken on the
basis of personal preferences.

d. Irrelevant considerations –
• When the discretion is to be used only when certain conditions exist, court can
check whether these conditions were present.
• Using discretionary powers in cases other than the existence of the conditions will
be considered irrelevant
• Dismissing someone from work on reasons that are not connected to the work
profile/ responsibilities – for eg dismissing someone for having a particular political
ideology etc
e. Malafide

• Every action of puclic authority must be informed by reason , and exercised lawfully and in good faith

• Malice means: Power exercised in bad faith, ill will or with dishonest intention

• No set guidelines as proof of malice, it will be dependant on facts of each case

• Malice in fact – when decision is based on personal bias/ animosity or vengeance – EP Royappa case –
contentions on the basis on malice in fact rejected.

• Pratap singh v St of Punjab – civil surgeon on leave before retirement – leave granted but later some enquiry
was initiated against him and he was dismissed from service – challenged that the CM had personal malice
against him and so he was removed – upheld

• Malice in law – when decisions taken on grounds other than those based in law – when land is acquired for a
purpose which doesn’t become a part of public purpose.

• Burden of prof on the person alleging it

• The court will rely on the manner and method of reaching the decision and the circumstances in which the
decision is taken

• An inference of malice must not be drawn on vague allegations and insinuations

f. Colourable exercise of power
g. Non observance of natural justice
h. Unreasonableness
DOCTRINE OF PROPORTIONALITY

• Normally used in HR perspective – about the severity of punishment being in

proportion to the offence committed and not more severe than that.
• One of the modes of exercising power of JR
• Lays down that admin measures must not be more drastic than required to achieve
the desired results
• Expelling a person from work because he remained absent on a day he thought as
holiday – the punishment not in proportion to the wrong. Could have warned or
considered as leave without pay. (Hind Construction v Workman)
• Army officer did not obey the instructions relating to food from his senior – was
subjected to court martial, dismissed form service and declared unfit for future
employment – held to be disproportionate (Ranjit Thakur v UOI)
• It is not the correctness of the decision that is questioned but the method to reach
such a decision
• Similar to the principle of reasonableness
DOCTRINE OF LEGITIMATE EXPECTATIONS

• Goes beyond a right or interest – belief based on past practice – provided it has some
reasonable basis

• Belief formed on some reasonable expectation – based on some express statement or from
regular practice which the claimant can reasonably expect to continue

• Can be invoked in cases where- a person has in the past been permitted to enjoy and can
legitimately expect to continue until some ground is communicated for withdrawal

• Doctrine now considered to be a part of PNJ

• Past practice of consultation before taking a decision may lead to a legitimate expectation
that the same will be done before a decision is taken in the future.

• When a public authority has promised to follow a certain procedure, it is good administration
that the procedure is followed to satisfy the legitimate expectations raised by the promise.
• J P Bansal v State of Rajasthan – B was appointed Chairman on a temporary basis till a new
full time Chairman is appointed – meanwhile the tribunal was abolished – B claimed 5 lakh
compensation with 15% interest as continuation of Chairman benefits– saying it was
legitimate expectation that he will be paid so much when he was appointed the Chairman –
petition dismissed

• When land was allotted to housing societies on first come first served basis, it was a
legitimate expectation of the societies who applied earlier that they will be allotted the land.

• Govt is free to frame and reframe the policy – a policy that is declared can be withdrawn in
the interest of general public – in such cases, legitimate expectation may be dishonoured.

• Before denying the legitimate expectation of a person, authority should an opportunity to

the person to make a claim as to why the benefit should continue.
• Doctrine cannot question changes in laws of the land – eg change in tax rates cant
be questioned on the ground that legitimate expectations are defeated

• Doctrine not applicable against public interest and security of the state

• Legitimate expectation is different form anticipation – expectation should be

legitimate, reasonable and justiciable.
• State of Jharkhand v Brahmaputra Metallics Ltd (2020) –The State of Jharkhand notified the Jharkhand Industrial Policy,
2012 (“Policy”), on 16 June 2012. Clause 32.10 of the Policy provided an exemption from the payment of 50% of the electricity
duty for a period of five years for captive power plants established for self-consumption or captive use. Clause 38(b) of the Policy
provided that notifications enforcing the terms of the Policy would be issued within one month by the Departments of the State
Government. Such notifications were legally necessary to give effect to the exemption in terms of the Bihar Electricity Duty Act
1948. However, contrary to the Policy, no notification was issued until 8 January 2015—and when issued, it only operated
prospectively. The effect of the delay in issuing the notification, and making its operation prospective, was to deprive the
respondent of the exemption from electricity duty for a substantial period that it would have been entitled to, had the notification
been issued within the stipulated period of one month.

• challenged by the Company in the HC saying the policy should be enforced from 2012 based on legitimate expectation – allowed
by HC – challenged by State in SC

• SC held: ‘The State had made a representation to the respondent and similarly situated industrial units under the Industrial
Policy 2012. This representation gave rise to a legitimate expectation on their behalf, that they would be offered a 50
per cent rebate/deduction in electricity duty for the next five years. However, due to the failure to issue a notification
within the stipulated time and by the grant of the exemption only prospectively, the expectation and trust in the State stood
violated. Since the State has offered no justification for the delay in issuance of the notification, or provided reasons
for it being in public interest, we hold that such a course of action by the State is arbitrary and is violative of Article 14. The
State having held out a solemn representation in the above terms, it would be manifestly unfair and arbitrary to
deprive industrial units within the State of their legitimate entitlement.’