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Sunday, August 29, 2010

Administrative Law - Discretionary Powers


Discretion is a tool only when properly used; like an axe, it can be a weapon for mayhem or murder. In a government of men and of laws, the portion that is a government of men, like a malignant cancer, often tends to stifle the portion that is a government of laws. Perhaps nine-tenths of injustice in our legal system flows from discretion and perhaps only one-tenth from rules.
Function dischargeable by the administrators may either be ministerial or discretionary. Ministerial function is one where the relevant law prescribes the duty to be performed by the conserned authority in 'Certain and Specific term' leaving nothing to the decision or judgement of authority.   
Discretion in layman's language means choosing from amongst the various available alternatives without reference to any predetermined criterion no matter how fanciful that choice may be. But the term discretion when qualified by the word 'administration' means choosing from amongst the various available alternatives but with reference to the rules of reason and justice and not according to personal whims.
According to Prof Wade: Discretion implies power to make a choice between alternative courses of actions.
In the word of Lard Halsbury (as observed in sharp v. Wakefield & Rooks case.)
            'Discretion means when it is said that something is to be within discretion of authorities that something is to be done according to the rules of justice, not according to private opinion and according to law and not humour. It is to be, not arbitrary, vague and beneficial, but legal and regular and it must be exercised within the limit to which an honest man competent to the discharge of his office ought to confine himself.’    
The problem of administrative discretion is complex. It is through that in any intensive form of govt. the govt. cannot function without the exercise of some discretion by the officials.   
Discretion is all pervading phenomenon of modern age. It is conferred in the area of rule making or delegated legislation. The legislature hardly gives any guidance as to what rules are to be made.  Similarly discretion is conferred on adjudicatory and administrative authority on a liberal basis that is power is given to apply a vague statutory standard from case to case.
Rarely does the legislature makes a comprehensive legislation which is complete in all details. More often the legislation is sketchy or skeletal, leaving many gaps and conferring powers on the administration to all in a way it deems necessary or reasonable or it is satisfied or is of opinion. Rarely does the legislature clearly enunciate a policy or a principle subject to which the executive may have to exercise its discretionary powers. Quite often the legislature bestows more or less unqualified discretion on the executive. Administrative discretion may be developed by such word or phrases as public interest
prejudicial to public safety or security, satisfaction, reasonable etc.

Need for discretion: The need for discretion arises because of the necessity to individualize the exercise of power by the administration i.e. the administrative has to apply a vague or indefinite statutory provision from case to case. This is the Incremental approach.
            Following are the reasons for conferment of discretion on administrative authorities:
1.         The present day administration problems are of varying nature and it is difficult to comprehend them all within the scope of general rule.
2.         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 a general rule.  
3.         It is not always possible to foresee each and every problem but when a problem arises it must in any case be solved by the administration in spite of specific rules applicable to the situation.
4.         Circumstances differ from case to case so that applying one rule mechanically to all case may itself result in injustice.

Disadvantages of conferring discretion

            From the point of view of the individual however there are several disadvantages in the administration following the incremental approach as compared with the adoption of a general rule applicable to all similar cases.
1.         A general rule usually avoids retroactivity and operates in future so that one has prior notice of the rules and thus may regulate his conduct accordingly. In case to case approach the individual may be caught by surprise and may not be able to adjust his affairs in the absence of his ability to foresee future administrative action.  
2.         Case to Case approach involves the danger of discrimination there arises a possibility of not getting like treatment under like circumstances i.e. unlike treatment for likes.
3.         The process is time consuming and involves decision in a multiplicity of cases, also there is danger of abuse of discretion by administrative officials.
The broader the discretion the greater the chance of its abuse. In the words of Justice Douglas. (U.S. v. Wonderluck) 'Where discretion is absolute, man has always suffered….absolute discretion is more destructive of freedom than any of man’s other inventions and also absolute discretion, like corruption marks the end of liberty. 
It thus becomes necessary to devise ways and means to minimise the danger of absolute discretion. To achieve such on objective a multi prolonged strategy has to be adopted.            A general rule is to be preferred to the case to case approach and ought to be adopted wherever possible. It is desirable to have administrative uniformity to the extent possible, because as a matter of general principle substantial lack of uniformity would lead not only to administrative chaos but also to collapse of public confidence in administrative fairness. In any individual case it is highly relevant to lake in to account what has been done in other cases of similar nature otherwise a decision may result which could be regarded as being improper or discriminatory. There are several possible way in which this objective on be achieved.              
1.         The law conferring discretion may itself seek to lay down the elements and standards which the authority has to apply in exercising its discretion and selecting a course of action. This means that the degree of discretion should be restricted by law itself as far as possible or in other words discretion should be properly combined and structured.    
2.         When the legislature fails to lay down standards, the administration can seek to lay down the standard using its powers of delegated legislation. The power of delegated legislation can be used by administration to lay down rules of conduct observable not only by people but also by administration itself in a given situation.
3. On a lower plane to some extent, administrative directions and norms of practice can be used instead of the rules, for the purpose of achieving uniformity in discretionary decisions, but these should be resorted to only when the scheme is too much in an experimental stage and constant adjustments may have to be made for some times to come. Otherwise rules are preferable to directions as they can be enforced judicially.
Not all acts of the administration can be bound by fixed rules. Many a time it may not be possible to prescribe intelligible standards for the administrator to follow. All these considerations make it inevitable that discretion be vested in the administration to take care of individual cases. But it also brings in the question of judicial and other control over discretions any power.
            The judicial control has two facets:
1.         To compel the legislature to desist from conferring too broad or uncontrolled discretionary powers. In India the courts have sought to spell out some limits on conferment of broad discretionary power by invoking the fundamental right guaranteed by the constitution. This may involve some substantive and procedural safeguards in the exercise of power. 
2.         There is need to have some post decisional review mechanism to ensure that administrative authorities discharge their function according to law and within legal limits express or implied.
In addition resort is being increasingly had for this purpose to such institution as tribunals and ombudsman.
There is growing realization that such power are necessary to achieve a just social order and to make rule of law a positive reality of course that does not mean that the administration must be given unlimited and necessary discretion, nor does it mean that the administration must be for from all limitations in the exercise of the discretion.   
Through a series of judicial decisions and juristic writing since the beginning of the last century it has become a well-established proposition of law that in a constitutional state based upon the rule of law does not mean discretion free from all legal limits. It is judicious discretion to be exercised for the purpose for which it is granted and the legal limits which apply to its exercise have to be observed.       

Judicial Review of discretionary power:
Due to parliamentary supremacy no legal limits exist in England on the conferment of discretion on the administrative authorities. But that is not true of the other common law countries whose written constitution determine and regulate the competence of the legislature particularly through the enumeration of the basic rights of individuals. Thus since the early years of the commencement of the constitution the courts in India have established that an unguided discretion conferred upon the administrative authorities may not be consistent with the basic right guaranteed in part-3 there of and have accordingly invalidate such conferment in several cases.
The rule of law requiring that the administration can interfere with the right of an individual only with the authority of law and that the authorisation is clearly limited in its content, subject matter, purpose and extent so that the interference is measurable and to a certain extent is foreseeable and calculable by the citizen.
The court have consistently insisted that the legislature must observe certain constitutional limits in granting discretion to the administrative authorities but they have not insisted upon a rigid criterion.

Grounds of judicial control:      
If an administrative authority is authorised to act in its discretion it has to exercise its discretion in consonance with the purpose of authorisation and the legal limits of the discretion has to be observed.
            Following are the grounds of judicial control:
(i)         Excess of discretion
(ii)        Abuse of discretion.
Excess of discretion:
Excess of discretion may occur in the most obvious form when the administrative authority does some thing which it is clearly not authorised to do under the enabling upper limit said by the law. But such obvious excess is rare. Normally excess occur in subtle form such as taking of a decision never contemplated within the law.
Another form of excess is failure to exercise discretion. An administrative authority may fail to exercise its discretion either because it does not exercise it due to idleness or it think that it is under no obligation to exercise it or it mistakenly considers itself bound by some other law or administrative order, failure to exercise may also arise from the misconstruction of the legislation which grants the discretion. The authority may consider that it has no discretion in the matter.          
In common law a discretionary decision of a lower authority which under the law only higher authority can take amount to excess or failure to exercise discretion.

Abuse of discretion:
Abuse of discretion may be either objection or subjective. An objective abuse results form non observance or violation of constitutional or other legal principles such as equality, reasonableness etc. A subjective abuse is result of an exercise of discretion for wrong purpose or when its exercise is not justified by consideration on which it is based.     
Though the forms of abuses of discretion are many but generally they over lap and it is very difficult to separate them and have under different heads eg. abuse of discretion either because the discretion has been used for an unlawful purpose or its exercise is based on improper  motives or bad faith or that the irrelevant consideration have been taken in to account in to its exercise.            




            Judicial control mechanism of administrative discretion is exercised at two stages.
A.        Control at the stage of delegation of discretion.
B.        Control of the exercise of discretion.
A.        Control at the stage of delegation of discretion.
1)         Administrative discretion and art 14.
2)         Administrative discretion and art 19, 21, 22 etc.
B.        Control at the state of exercise of discretion.
1.         Abuse of discretion- when the authority has not exercised its discretion properly.
2.         Non application of mind- the authority is deemed not to have excised its discretion at all.
(1)        Abuse of discretion (Not properly exercised)
(i)         Unreasonable exercise of discretion.
(ii)        Mixed motives.
(iii)       Bad Faith.
(iv)       Subjective Satisfaction.
(v)        Relevant and Irrelevant consideration.
(vi)       Legitimate expectation.
(vii)      Proportionality.
2.         Non Application of Mind- (Failure to exercise )
(i)         Abdication and dictation of discretion.
(ii)        Fettering of discretion.
(iii)       Estoppel.
(iv)       Delegation of discretion.
(v)        Acting Mechanically.

(A)       Abuse of DISCRETION:
            An authority shall be deemed to have abused its jurisdiction when it exercises its power for an improper purpose or on extraneous consideration, or in bad faith, or leaves out a relevant consideration or does not exercise the power by itself but of the instance and discretion of someone else.
(1)        Mala Fides :
            Mala fide or bad faith means dishonest intention or corrupt motive. At times, the court uses the phrase 'mala fide' in the broad sense of any improper exercise or abuse of power. In this sense mala fide is equated with any ultra virus exercise of administrative power. However the term 'mala fide' here has not been used in the broad sense but in narrow sense of exercise of power with dishonest intent or corrupt motive.
            Mala fide in this narrow sense, would include those cases where the motive behind an administrative action is personal animosity itself or its relatives or friends. Mala fide exercise of discretionary power is bad as it amounts to abuse of power.
Pratap Singh v. Punjab AIR 1964 SC :
            The appellant a civil surgeon in the employment of the state govt. was placed under suspension and a disciplinary action was started against him on the charges of bribe. The appellant alleged that disciplinary action had been initiated at the instance of Chief Ministry to wreak personal vengeance on him. From the sequence of events, certain tape recordings and the absence of an affidavit denying allegations, the court concluded that charge of mala fide is proved. This case shows that even if govt. has legal power to take disciplinary action for misconduct against a civil servant, it could not so if the action was activated out of malice.
Rowjee v. State of Andhra Pradesh (AIR 1967 SC) :
            The court held that Chief Minister had acted mala fide in giving directions regarding the selection of particular transport route for nationalization, as he sought to take vengeance against the private operators on those routes, as they were his political opponent.
G. Sadananda v. State of Kerala (AIR 1966 SC):
            In this case, the petitioner, a kerosene dealer was detained under the Defense of India Rules, to prevent him from acting in a manner prejudicial to the maintenance of supplies and services essential to the life of community. The fact were brought before the court to show that the D.S.P. made a false report against the petitioner in order to benefit his relative in the same trade by eliminating the petitioner from the trade, by obtaining the distributorship for kerosene. The D.S.P. filed no affidavit to controvert allegations, and the affidavit filed on behalf of govt. by the Home Secretary was very defective. The SC declared the order of detention to be clearly and plainly mala fide.

The burden of providing mala fide is on individual making the allegation as the order is regular on its face and there is a presumption in favour of the administration that it exercises its power in good faith and for public benefit. The petitioner should produce sufficient material to convince the court of the mala fide of the govt. The burden of the individual is not easy to discharge as it requires going in to the motives or the state of mind of an authority, and it is hardly possible for an individual to know the same and it is all the more difficult to establish it before a court.
            The difficulties inherent in proving mala fides are brought by SC in E.P. Royappa v. State of Tamil Nadu AIR 1974 SC although majority felt that these were circumstances to create suspicious about the bonafides of the govt. nevertheless the court refused to declare the action malafide as suspicion could not take the place of proof and proof needed here is high degree of proof.
            Malafide may also be inferred from the authority ignoring apparent facts either deliberately or sheer avoidance. Because of the difficulty of proving malafides, only a few cases have occurred so far in which administrative orders may have been quashed on this ground.
2.         Irrelevant Consideration:
            A discretionary power must be exercised on relevant and not on irrelevant or extraneous considerations. It means that power must be exercised taking in to account the consideration mentioned in the statute. If the statute mentions no such considerations, the power is to be exercised on considerations relevant for the purpose for which it is conferred. If the authority concerned bags attention to or takes in to account wholly irrelevant or extraneous circumstance, events or matters then the administrative action is ultra-vires and will be quashed.
            Even when a statute does not fully spell out the relevant criterion or consideration and may appear to confer power in almost unlimited terms, the court may, by looking in to the purpose, tenor and provision of the act, assess whether extraneous or irrelevant consideration have been applied by the administrative in arriving at its decision.
Ram Manohar Lohia v. State of Bihar (AIR 1966 SC) :
            The petitioner was detained under the Defence of India Rules, 1962 to prevent him from acting in a manner prejudical to the maintenance of 'law and order' whereas the rules permitted detention to prevent subversion of 'public order'. The court struck down the order as in its opinion, the two concept were not the same, 'law and order' being wider then public order.
Barium Chemicals Ltd. v. Company Law Board AIR 1967 SC :
            In this case the Company Law Board exercising its powers under Sec. 273 of the Companies Act 1956 ordered on investigation in to the affairs of Barium Chemicals Ltd. However the basis of the exercise of discretion for ordering investigation was that due to faulty planning the co. incurrent a loss as a result of which the value of the shares had fallen and many eminent persons had resigned from the board of directors. The court quashed the order of the board on the ground that the basis of exercise of discretion is extraneous to the factors mentions in sec. 237 for such exercise of discretion.
D. Ramaswami v. State of Tamil Nadu (AIR 1982 SC) :
            The order of compulsory retirement of a government servant was struck down as it was passed fallowing close upon needs of his promotion to a higher post. The basis of retirement was one adverse entry in his confidential file several years prior to his promotion.
3.         Leaving out relevant consideration:
            If in exercising its discretionary power an administrative authority ignores relevant considerations, its action will be invalid. An authority must take in to account the consideration which a statute prescribes expressly and impliedly.
            It was difficult to establish that the authority had left out relevant considerations because of the absence of reasons. Therefore not much case law had occurred under this head with the courts insistence on the supply of reasons by administrative authorities at least to them and also their tendency to look in to the govt. record; this ground has become important one.
Rampur Distillery Co. v. Company Law Board (1969) 2 SCC
            The Company Law Board acting under Sec. 326 of Companies Act 1956, refused to give its approval for renewing the managing agency at the co. concerned on the ground of past grossly improper misconduct of the managing director of the managing agent in relation to various other companies of which he was director. The SC thought it did not find any fault in taking in to consideration the best conduct, held the order bad because the board did not take in to consideration that present acts which were very relevant factors in judging suitability.
Ashadevi v. K. Shivraj AIR 1979 SC :
            The petitioner was detained with a view to preventing him from engaging in transporting smuggled goods. The detaining authority based its decision on the detenu's confessional statement before the custom officers, but the fact having bearing on the question whether his confession was voluntary or not were not placed before authority. It was held that since the authority did not consider vital facts relevant to the detention of the petitioner the detention order was bad.
4.         Mixed Considerations:
            The attitude of judiciary on the question of exceed consideration does not depict a uniform approach of all types of cases. In preventive detention cases, the court have taken a strict view of the matter and has held such on order invalid if based on any irrelevant ground along with relevant grounds.
Shibban Lal v. State of U.P. (AIR 1954 SC):
            The petitioner was detained on two grounds, first that his activities were prejudicial to the maintenance of supplies of essentials to community and second that his activities were injurious to the maintenance of public order. Later govt. revoked his detention on the first ground as either it was unsubstantial or non existent but continued it on the second. The court quashed the original detention order.
5.         Unreasonable exercise of discretion:
            'Unreasonableness' may also mean that even though the authority has acted according to law in the sense that it has not acted on irrelevant grounds or exercised power for an improper purpose, yet it has given more weight to some factors then they deserved as compared with other factors.
            Unreasonableness may furnish a ground for intervention by the court when the constitution of India or statute so requires A. 14 of the constitution guarantees equality before law but the courts have permitted reasonable classification to the made.
            In Maneka Gandhi v. UOI AIR 1979 SC it was held that an order made under Passport Act, 1967 could be declared bad if it so drastic in nature, as to be imposing unreasonable restrictions on the individual freedom.
R.D. Shetty v. International Airport Authority (1979) 3 SC:
            The tenders for running a restaurant were invited by Airport Authority from 'registered second class hoteliers'. It was clearly stipulated that acceptance of tender would rest with the Airport Director who can reject or accept any tender without assigning any reason. The highest tender was accepted but the tenderer was not an hotelier at all. A writ petition was field by a person who was himself neither a tenderer nor an hotelier. His grievance was that he was in the same position as the successful tenderer because if an essential condition could be ignored the in the tender case why not in the petition.
            The SC accepted the plea of locus standi in challenging the administrative action J. Bhagwati held. :
(1)        Exercise of discretion is an inseparable part of sound administration.
(2)        It is well settled rule of act law that an executive authority must be rigorously held to the standard by which it professes its action to be judged.
(3)        It is indeed unthinkable that in a democracy government by the rule of the executive government or any of its officers should posses arbitrary powers over the interest of an individual. Every action of the govt. must be influenced with reasons and should be free from arbitrariness.
(4)        The govt. can not be permitted to say that it will give jobs or enter into contract only in favour of those having gray hair or belonging to a particular party. Exercise of discretion must not be arbitrary, fanciful and influenced by extraneous considerations. In matters of discretion the choice must be dictated by public interest and must not be unprincipled or unreasonable.
            Srilekha Vidyarthi V State of U.P. (AIR 1991 SC) (P-64 A. Jain)[H1] 

6.         Subjective Satisfaction
            The satisfaction of the executive must be based on right test and right construction of a statute and as materials which had probative value and were such as national human being would consider connected with the fact in respect of which the satisfaction was to be reached. The satisfaction ought to be based on relevant and non-extraneous consideration
            State of Rajasthan v. UOI. (AIR 1977 SC)
            The Supreme Court observed that although the court could not go into the correctness of the decision, if the satisfaction of the president was based on malafide or wholly extraneous or irrelevant ground, the court would have jurisdiction to examine it because in that case there would be no satisfaction of the president. Although the satisfaction of the president could not be challenged, the existence of the satisfaction could be challenged.
B)        On Application of Mind (Failure to exercise discretion)
            Where discretion has been conferred on an authority it is expected to exercise the same by applying its mind to the facts and circumstances of the case in hand, otherwise its action or decision will be bad and the authority is deemed to have boiled to exercise its discretion; the authority may not apply its mind to the vital facts, or may not comply with the condition precedent for the exercise of its power, or it may act mechanically or without due cure or it may abdicate its power to someone else, or it may out under the dictation of superior, or it ay impose fetters on the exercise of its discretionary powers. These categories are not exclusive but overlapping
1.         Abdication of functions
            An authority to whom discretion has been granted by a statute may leave it to be exercised by the subordinates without acting it self an order made by subordinate is not valid.
            Manikchand V. Sate AIR 1973 goa/Guj[H2] 
            The scheme of nationalization of certain bus route was published by the manager of the state road transport corporation without the corporation itself considering the scheme though the statute required that it was the corporation which was to consider the scheme.
2)         Acting under dictation
            A situation of the authority not exercising discretion crises when the authority does not consider the matter it self but exercise its discretion under the dictation of a superior authority. This in law would amount to non exercise of its power by authority and will be bad. Although the authority purports, to act itself yet, in effect it is not so as it does not take the action in question in its own judgment as is intended by the statute.
            Commissioner of Police v.  Gorhardas Bhanji (AIR 1952 SC)
            The Bombay police act 1902 granted authority to the commissioner of police to grant license far the construction of Cinema theatres. The commissioner granted license to the respondent on the recommendation of an advisory committee but later cancelled it at the direction of state govt. The court held that cancellation order bad as it had come from govt. and the commissioner merely acted as transmitting again.
            Purtabpore Co. Ltd. v. Canee Comm. of Bihar (AIR 1970 SC)
The Cane commissioner who had the power to reserve sugarcane areas for sugar factories, at the dictation of C.M. excluded 99 villages from the area reserved by him in favour of the appellant company. The  court quashed the exercise of discretion on ground that he abdicate his power by exercising it at the dictation of some other authority.
            There is, however a difference between seeking advice or assistance and being dictated. Advice or assistance may be taken so long as the authority concerned does not mechanically act on it, and itself take the final decision. Thus in the Gordhandas case the court held that granting of licence on the recommendation of advisory committee was not bad as the will of the authority cannot be said to be overborne by it.

3)         Imposing fetters on the exercise of discretion  
            When a statute confers power on an authority to apply a standard (as is the case in administrative discretion) it is expected of it to apply it from case to case, not to fetter its discretion by declaration of rules or policy to be followed by it uniformly in all cases. What is expected of the authority is that it should consider each case on its merit and then decide it. If instead, it lays down a general rule to be applicable to each and every case, then it is preventing itself from exercising its mind according to the circumstances of each case and this amount to going against what statute had intended the authority to do.
Gell v. Teja Noora (1903) LR Bom
The Commissioner of police had discretion to refuse to grant a licence for any land conveyance which he might consisting to be insufficiently sound or otherwise comfit far conveyance of the public.  Instead of applying his discretion to grant licence or not, he issued a general order setting details of construction which are required to be adopted for licence. The court held the order illegal.
The position is well established that the exercise of statutory discretion cannot be followed by adopting rigid policy or a mechanical rule. A case somewhat going against this proposition to.
Shri Ram Sugar industries v. State of A.P. AIR 1974 SC
A tax was levied on the purchase of sugarcane by sugar factories but the govt. was given power to exempt from payment of tax any new sugar factory. However the govt. made it a policy to grant exception only to factories in the co-operative sectors. and on the basis of this polity denied exception to the appellant. Court upheld the action of the govt. The majority justified its view on the ground that it was open to the govt. to adopt a policy to make a grant only to a certain classes and not to some other class.
Justice Mathew delivering the dissenting opinion. The minority emphasized that an authority entrusted with a discretion must not by adopting a rule of policy disable itself from exercising it s discretion in individual case.
4.         Delegation of Discretion
            Delegation means transfer or transmission of discretion from a superior authority to a subordinate. It may take place when the law either expressly or impliedly provide for such possibility.
            Ganpati Singh v. State of Ajmer (AIR 1955 SC)
            The Power to issue certain rule was conferred on the commissioner but he delegated the power to district magistrate the could held that Chief Commissioner action in delegating his power was ultravires.
5.         Acting Mechanically
            An authority cannot be said to exercise statuary discretion when it passes an order mechanically and without applying its mines to the facts and circumstances of the case. This may happen either because the authority has taken one view of tis power or because of inertia or laziness or because of the its reliance on the subordinates. 
            Nand Lal v. Bar Council of Gujarat (AIR 1981 SC)
            It was held that in forwarding a case to the disciplinary committee the council can not act mechanically it must apply its mind to find out whether these is any reason to believe that any advocate has been guilty of misconduct.
            Jaswant Singh v. State of Punjab (AIR 1958 SC)
            Under prevention of corruption act, 1947 the sanction of govt. is necessary for prosecuting a public servant of certain offences. It has been held that the sanction under the act is not intended to be an automatic formality. The facts consisting the offence charged should be placed before the sanctioning authority which should decide the matter after applying its mind to them.

            G. Sadanand v. State of Kerala (AIR 1966 SC)
            Supreme Court commented adversely on the casual manner in which the deciding authority had acted in passing the order. The order was quashed with a short reminder to the administration that it should be more careful in exercising its powers. The court pointed out that casual use of unfettered power by them may ultimately pose a serious threat to basic values of the democratic way of life.
Limitations of Judicial Control
The judicial remedies mentioned above under the ‘Rule of Law’ system provide an effective control against official excesses or abuse of power and in protecting the liberties and rights of the citizens. But judicial control has certain limitations. It the first place all administrative actions are not subject to judicial control. There are many kinds of administrative actions, which cannot be reviewed by the law courts. Then there is a
tendency on the part of the legislature also to exclude by law certain administrative acts
from the jurisdiction of the judiciary. For example, in India the administration of Evacuee Property act, 1950 vests final judicial powers in the Custodians and Custodian General of Evacuee Property and the law courts have no jurisdiction to interfere in the decision made under this Act. Second, even in those administrative actions which are within its jurisdiction, the judiciary cannot by itself take cognisance of excesses on the part of officials. It can intervene only on the request of somebody who has been affected or is likely to be affected by an official action. Human nature being what it is, legalism is the last sphere in which it would like to enter. We are always reluctant to enter the precincts of judiciary and prefer to continue to put up with minor injustices of administration. That means that a negligible fraction of the cases of administrative excesses would come before the judiciary and that too after a person has already suffered.
Third, the judicial process is very slow and cumbersome. The courts follow
certain set technical pattern of procedure beyond the comprehension of a layman and
then the procedure is so lengthy that it cannot be known as to when the final judgment

shall be given. There have been instances when cases have been pending with the courts
for years together. Sometimes the decision of the court comes when the damage has been
done beyond repair: “Justice delayed is justice denied”. An aggrieved person cannot wait
indefinitely to avail himself of the judicial remedy. The dilatory judicial procedure will
not in any way console the sufferer or reconcile his afflicted mind. Tired of the delay he
will lose hope and become a victim of bureaucracy.
Fourth, sometimes the remedies offered by the law courts are in adequate and
ineffective. In many cases, especially relating to business activities, mere announcement
of an administrative action or even a reminder concerning a proposed action may cause
an injury to the individual against whom not even a suit can be filed in the law court.
Fifth, the government may deprive the person of the remedy granted to him by
the court by changing the law or rules thereof. In a case the High Courts ordered that the
petitioners be promoted to the senior posts of Professors class I and that direct selection
for these posts contravenes the provision of the States Reorganisation act in as much as it
changes the conditions of service of the petitioners to their disadvantages. The
Government did promote the petitioners thereby giving effect to the judgement of the
court. But after some time these posts were withdrawn on the ground of financial
stringency and the persons were reverted to their substantive posts.
Sixth, judicial action is incredibly expensive and cannot therefore be taken
advantage of by many people. Filing a suit means paying the court fee, fee of the lawyer
engaged and cost of producing witnesses and undergoing all inconveniences which only
those who can afford can bear. This keeps many people away from the court who prefer
to suffer. On account of heavy cost and great inconvenience the judicial remedies are of
little advantage.
Last, the highly technical nature of most of the administrative actions saps the
force of judicial review. The judges are only legal experts and they may have little
knowledge of the technicalities and complexities of administrative problems. Their lelgal
bent of mind may hinder them in arriving at a right decision. They have to follow the
prescribed procedures and observe some formalities. W. A. Robson writes, “The liability
of the individual official for wrong doing committed in the course of his duty is
essentially a relic from past centuries when government was in the hands of a few
prominent, independent and substantial persons, so called Public Officers, who were in
no way responsible to ministers or elected legislatures or councils. Such a doctrine is
utterly unsuited to the Twentieth Century State, in which the Public Officer has been
superseded by armies of anonymous and obscure civil servants acting directly under the
orders of their superiors, who are ultimately responsible to an elected body. The
exclusive liability of the individual officer is a doctrine typical of a highly individual
Common Law. It is of decreasing value today, and is small recompense for an
irresponsible state.” Besides, the judges have their own whims and prejudices. That is
why the modern trend is towards the establishment of Administrative Tribunals, which
consist of person’s expert in technical matters.
From review of the details of judicial control and its limitation we can reach a
conclusion. In conclusion we can say that the system of judicial control of administrative power in USA & UK are different in some aspect but are similar in core areas of
administration. On the other hand, in Bangladesh and Indian subcontinent follow the
British system of judicial review process. But most of the developing countries like
Bangladesh there are some limitations of judicial review, which we have already been
discussed. Everybody knows that the role of judiciary in protecting the citizens against
the excess of officials has become all the more important with the increase in the powers
and discretion of the public officials in the modern welfare states. So we should
overcome all the limitations of judicial control of the land. I have some specific
recommendations to overcome the problems.
All the decisions taken by the administration have to be opportunity to 1.
judicial review.
All man should have equal opportunity to access the jurisdictions of judicial 2.
Judiciary would be transparent and dynamic so that every case accomplished 3.
as soon as possible. In this case separate court would have established for
separate types of cases.
The remedies offered by the law courts must be adequate and effective. And 4.
the recruitment of chief justice and other justices of Supreme Court must be
fair, merit and seniority based.
The separation of judiciary from the executive must be implemented as soon 5.
as possible.
Judges would be trained for the highly technical nature of most of the 6.
administrative problems. Because the judges are only legal experts and they
may have little knowledge of the technicalities and complexities of
administrative problem.
Strengthen law enforcement mechanisms, including the role of the judiciary 7.
and provide witness protection programs.
Lastly, all would have adequate respect to the judiciary of the land. And
government always would have politically neutral to the judicial system of our country.It
is expected that the findings and recommendations of the study would be helpful for
concerned organisations for creating awareness and undertaking active programs to
protect the citizen’s rights against abuse of administrative power in Bangladesh.

Other Related Doctrines in Administrative Law Making

Political Question Doctrine
Constitution has assigned certain areas exclusively for the domain of the legislature and the executive. The trust has been placed in the judgment of the authority instead of the courts. One of such powers which are beyond judicial review are powers normally involving political questions.
The political questions doctrine is a creation of the theory of separation of powers. According to the theory of separation of powers the executive, legislature and judicial functions of the state are kept independent of each other. This being the case, the judiciary cannot entertain the question which falls within the domain of the legislature or the executive.
There are certain questions which are supposed to be ‘political’ and appertaining to the determination of the executive which are not fit for judicial review. A matter of policy decision for the executive must be left to the consideration of the state government the wisdom in a policy decision of the government, as such is not justiciable unless whether such policy decision is capricious arbitrary whimsical or offending any provision of the constitution.
The reason for showing this restraint by the courts is:
The government should be accountable to one institution only and in India’s case it is the parliament. Modern democratic system has chosen to regard political accountability as more important than another kind of accountability. If the courts would be the examination centre of their work it will be flooded with symbolic litigation.
The courts themselves would have a lot of difficulty in coping with their political, social, and economic questions; this would require a different kind of trained expertise.
The courts would also become a focal part of controversy. By restraining themselves they are maintaining the constitutional balance among all the organs of the state.

The courts have however the sole constitutional authority and obligation to interpret the constitution and if a question arises whether in making the impugned administrative order, the authority exceeded the power vested in it by the constitution, the court would strike it down, if the order is found to be ultravires or malafide, even though it pertains to a subject usually known to be political. Merely calling a question a political question does not mean the judicial review is not required. It is ultimately a question of choice with the courts, whether they would review or not review a political questions and if so to what extent.   
Former chief justice, Justice Subba Rao (after he was not on the bench) commented on this doctrine as

“The argument that political question must be kept out of the court’s jurisdiction is not sound. It may be that the parliament seeks to make an act for political reason.

Some articles of the constitution speak of the satisfaction of the president in taking some specified action, for instance under article 123, power of promulgating ordinance. Under article 352 powers of declaring national emergency or under article 356 which talks of taking over of the administration of a state on account of failure of constitutional machinery.

In Bhutnath v. State of West Bengal the Supreme Court refusing to hold the continuance of emergency under article 352 subject to judicial review stated tat question was political and not justiciable issue.

In State of Rajasthan v, Union of India Chief Justice Beg said that the question of political wisdom an executive policy only, could not be subjected to judicial control. “
He further said that “no doubt executive policy must also be subordinated to constitutionality sanctioned purposes. It has its sphere and limitations. But, so long as it operated within the sphere, its operations are immune from judicial interference.

Justice Bhagwati and joined by Justice Gupta also said that the courts would not entertain any matter which does not involve any legal or constitutional right or objection.

Justice Goswamy in his judgment said that whether in truth and reality a particular situation exists and is portentously imminent, may be correct or incorrect, but it is a political issue.

In Hoeschst Pharmaceuticals v. State of Bihar, the court took the position that the assent of the president to the bill was not justiciable.

In A.K. Roy v. UOI Chandrachud, CJ commenting on the ordinance making power of the president under article 123 doubted whether under the Indian constitution “the political question” doctrine could be invoked to deny justiciability to any issue.
The court has formulated their policy to keep away from the political question but at the same time they have cautioned that merely policy making by the executive is not subject to judicial review. It is only when a policy put into practice, and it hurts the interest of somebody that a reviewable question may arise. 

The courts have entered the area which it avoided earlier.
In Kehar Singh v. UOI the court held that the power to grant pardon to a person who has been sentenced to death or the power to commute a sentence or give reprieve vested in the president could be judicially reviewed.

In S.R. Bommai v. UOI the court ascertained its power of judicial review over the exercise of power by the president under article 356. The court said that it has power to scrutinize the materials on the basis of which the advice was given and the president formed his satisfaction more closely and circumspectly.

It has been suggested that the Indian judiciary will have to free themselves from colonial hangovers against being political. Democracy is politics and the courts as the upholder of democracy has to evaluate and judge political decisions of the co ordinate organs of the government. The political decision of the court will have to be informed by the philosophy of individual liberty, social justice, equality and democracy.

Exclusion of Judicial Review

Judicial review means supremacy of law but in a country where there is a written constitution, it means supremacy of constitution. In every society of rule of law the power of judiciary to review the acts of legislature and executive is well recognised. Wherever there is a power, there are excesses in its exercise. When the legislature deprives the judiciary of the power of judicial review to any extent in a way where the supremacy of the law or constitution is in jeopardy.
But under the import of philosophy of welfare state the legislative tendency is to give greater scope for administrative decisions and lesser scope for judicial review.

English position:
Though in England the rule of parliamentary supremacy operates. But the judicial review is not done away with. Under their supervisory jurisdiction on court, can see whether the adjudicating authority to whom the power has been given has exercised his power in a proper way.
The franks committee on administrative tribunal also recommended that judicial review should not be barred. S. 11 of the Tribunal and Enquiries Act 1958, also is in favour of judicial review.
But indirectly they bar the jurisdiction as it can be seen from the following:
By making administrative order final or conclusive.
Providing that administrative decisions shall not be called in question in any court, or in any legal proceedings.

American Position
Absolute exclusion of judicial review in America is not possible as it flows from the due process clause. But S. 12 of Administrative procedure Act 1946 provides “that except as far as :
Statute precludes judicial review.
Agency action is by law committed to agency discretion.
So the power of judicial review is retained, but in many cases it was held that the meaning of finality clause will not be so construed as excluding judicial review, but it tells about finality in administrative process.

Indian Position
As regards legislative exclusion of judicial review the position is somewhat similar to that of the US. In both the countries there exists a character of fundamental right that these rights cannot be taken away by any means. The power of judicial review is an integral part of our constitutional system. It is conferred by A. 328 and 226 of the constitution; the power of judicial review is extended to the checking of the validity of constitutional provisions as well.

Constitutional provisions excluding judicial review:

Executive power is vested in the president and when an advise is tendered to the president by a minister it shall not be called to be examined by the court. Also orders or instructions made by the president shall not be called in question.
Legislative power: privileges and immunities of parliament under A. 105 and member of state legislature are out of the purview of the court. Officer exercising his duty under A. 122(2) is excluded from judicial review.

Express Exclusion
Sometime exclusion of judicial review may be made under a statute making the administrative action final by expressly barring the jurisdiction of courts. Like as Under S. 2 of Foreigners act.

Implied Exclusion
When there is no express exclusion of judicial review but there is an implied exclusion. Example the Dangerous Drug Act 1930 and the prison act etc.

Exclusion of Civil Suits
As under section 9 of CPC the civil court has jurisdiction to try all suits of civil nature unless they are barred.
Suits expressly barred: matters dealt with by special tribunal under relevant statute of industrial tribunal. Election tribunal, rent tribunal etc are expressly bared from the cognizance of a civil court.
Suits impliedly barred: when a suit is barred by general principles of law. Like political questions belong to the domain of public administrative law and are outside the jurisdiction of courts. The general rule of law is that in dealing with questions whether a civil courts jurisdiction to entertain a suit barred or not it is necessary that every presumption should be made in favor of the jurisdiction of civil court.

Exclusion of Jurisdiction of Tribunals
Administrative tribunals posses autonomous status and their judicial and quasi judicial decisions can not be challenged or set aside by court of law if the statute otherwise makes such decision or order final even if they are wrong.
Some of the matters related to election law, taxation matters, decision of domestic tribunals, labour disputes, dispute between landlord and tenant are excluded from the purview of judicial review.

Subjective satisfaction
It is another mode of exercising of judicial review.  There are a number of statutes conferring power of satisfaction to the administrative authority as in preventive detention laws, national security acts etc. 

Political questions

In State of Rajasthan v. UOI AIR 1977 SC there it was held that if a question is purely political question and not determination of any legal or constitutional right or obligation the court would not entertain it.

Policy Matters
Supreme Court or High Court will not exercise their extra ordinary jurisdiction in the matters of government policy.

Ouster Clause
Generally a clause is inserted in a statute by which administrative action is excluded from judicial review; such clause may be called ad finality clause or exclusion clause.

Such clause does not play a much significant role in India for much of judicial review takes place under constitutional provisions. (Under Article 32. 226, 136 which cannot be controlled by statutory provisions)

Doctrine of Proportionality

The application of proportionality in administrative law is a debatable issue and has not been fully and finally settled. Proportionality means that action should not be more drastic than it ought to be for obtaining the desirable result. It requires a proper balance between injury to an individual and gains to the community caused by an administrative measure and prohibit those measures whose disadvantage to the individual outweigh the advantage to the community.
In determining the proportionality courts normally gives weigh to the administrative decisions and would interfere where a clear case of disproportional is made out.
It insists that administrative authority cannot exercise their discretion as they like, they are under an obligation to make a judicious balance between the community and individual interest and must abstain from taking an action which will put material burden on the existence of the individual
It covers some ground with reasonableness. Proportionality is a course of action which could have been reasonably followed and should not be excessive, severe etc.

English Position
Wednesbury test: as per this test while judging the validity of an administrative action normally this test is applied. According to this the court would consider that whether irrelevant matters are taken into account or whether relevant matters had not been taken into account, or whether the action is bonafide. The courts would also consider whether the action is absurd or perverse. The court would not go into correctness of choice made by the administrator amongst the various options available to him. Nor the courts would substitute its decisions to that of administrator.
In Counsel of Civil Services v. Minister of Civil Services (1985) the principle of judicial review was summarized as legality, procedural impropriety and irrationality. In this case and some other cases the court observed that doctrine of proportionality as a ground of judicial review of administrative action is not available at present but may be available in future when the European Human Rights Convention is incorporated into the domestic laws of England.

Indian Position 
In India courts have always used the doctrine of proportionality in judging the reasonableness of the restriction on the exercise of fundamental rights while exercising the power of judicial review, the court performed primary role of evaluating if a particular competing public interest justifies the particular restriction under the law.
This situation arises when the court is deciding on the constitutionality imposing unreasonable restriction on the exercise of fundamental rights.
However, whether the courts dealing with the executive or administrative action or discretion exercised under statutory powers where fundamental rights are involved, would apply principles of proportionality.

In UOI v. G. Ganayutham 1997 SCC it was held that in such cases judicial review is restricted to secondary judgment and thus in review court cannot substitute its own views of the punishment. Power of judicial review is limited to illegality, procedural impropriety and irrationality. Irrationality meaning thereby that no sensible person who weighed the pros and cons have arrived at or that punishment is outrageous or in defiance of any logic or morality.

In Indian Oil Corporation v. Ashok Kumar Arora 1997 the Supreme Court held that in matters of punishment the court will not intervene unless the punishment is wholly misappropriate.  It is the cardinal rule of criminal jurisprudence that the punishment imposed should not be disproportionate to the gravity of the offence proved.

In Ranjit Thakur v. UOI 1987 the apex court had applied the doctrine while quashing the punishment of dismissal from service and sentence of imprisonment awarded by court marshal under the Army Act.

In State of Orissa v. Vidhya Bhushan Mahapatro (1963) the supreme court held that it is not within the power of the court to substitute the decision taken by a competent authority simply because the decision sought to be substituted by a better one while deciding the proportionality of a punishment/penalty CCSU rules are to be followed.

Rule of proportionality shares ground with the rule against arbitrariness. Therefore in the absence of any statutory provision if a major penalty has been imposed for a minor lapse it would be clearly arbitrary falling within the ambit of Article 14.

Rule of proportionality is fully applicable in constitutional adjudication where the court has to decide on the reasonableness of a restriction on the exercise of fundamental rights. However in the field of administrative law it is still in evolving stage for the present the doctrine is not available in administrative law in the sense that the court can not go in the question of choice made and priority fixed by the administrator. The court can only see if given the material before administrative officer, he has acted as a reasonable man. In an action for review of an administrative action the court cannot act as a court of appeal.

The position in Indian in administrative law, where no fundamental freedoms are involved, is that court/tribunal will only play a secondary role while the primary judgment of reasonableness will remain with the executive or administrative authority. The secondary judgment is based on Wednesbury and CCSU principle to find out if the executive or administrative authority has reasonably arrived at its decision as a primary authority.

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