CRITICAL ANALYSIS OF JUDICIAL REVIEW & ABUSES OF ADMINISTRATIVE DISCRETION
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. A person writing his will has such discretion to dispose of his property in any manner, no matter how arbitrary or fanciful it may be. But the term ‘discretion’ when qualified by the word ‘administrative’ has somewhat different overtones. ‘Discretion’ in this sense means choosing from amongst the various available alternatives but with reference to the rules of reason and justice and not according to personal whims. Such exercise is not to be arbitrary, vague and fanciful, but legal and regular .
ln Rooke’s case COKE J. said, “notwithstanding the words of the commission give authority to the commissioners to do according to their discretions, yet their proceedings ought to be limited and bound into the rule of reason and law. For discretion is a science or understanding to discern between falsity and truth, between wrong and right, between shadows and substances, between equity and colourable glosses and pretences, and not to do according to their wills and private affections. Discretion is to know through law what is just.”
The word “discretion” connotes necessarily an act of a judicial character, and, as used with reference to discretion exercised judicially, it implies the absence of a hard—and-fast rule, and it requires an actual exercise of judgment and a consideration of the facts and circumstances which are necessary to make a sound, fair and just determination, and a knowledge of the facts upon which the discretion may properly operate.
The word “discretion” standing single and unsupported by circumstances signifies exercise of judgment, skill or wisdom as distinguished from folly, unthinking or haste; evidently therefore a discretion cannot be arbitrary but must be a result of judicial thinking. The word in itself implies vigilant circumspection and care; therefore, where the legislature concedes discretion it also imposes a heavy responsibility.
No modern government, however, can function without the grant of discretionary power to administrative authorities. Whether or not an action is required depends upon the happening of certain events or the arising of certain situations that cannot be anticipated. They have to be determined from time to time and the administrator has to respond by using the power (discretion) given to her. 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 an administrative authority. 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 forming an opinion or being satisfied that the action is necessary. All such actions are discretionary. Where the State has to perform the regulatory function of ensuring that activities such as business, trade, industry or social service are conducted in public interest, the ambit of its discretionary power is bound to be large.
REASONS FOR GROWTH OF ADMINISTRATIVE DISCRETION
There are several very good reasons for conferring discretionary powers on officials. Under the modern political philosophy of a welfare state, there has been a tremendous state regulation over human affairs in all democracies. This philosophy has led to a great extension of government responsibility for providing social services. Also, the government has assumed much greater responsibility for the management of the economy. Thus, the State has enacted legislation for urban development, slum—development, planning, economic regulation etc. Public transport, health, electricity, coal mining have all been brought under state control, All this has necessitated conferment of broad discretionary powers on the government, its officials and instrumentalities.
It is felt that owing to the complexity of socio—economic conditions of modern life which the Administrative Process has to contend with, a government endowed with merely ministerial powers, without having any discretionary powers, will be far too inefficient, rigid, circumscribed, and unworkable. It will not be able to take quick decisions at critical times, and will be ineffective to deal with the modern complex socio—politico—economic problems of the society.
Also, at times need is felt for technical or other expertise in regulating a particular activity and it is felt that expertise will develop on a case to case basis. To achieve these objectives viz., expedition, flexibility and expertise in administrative decision making, it is felt necessary that, to some extent, officials must be allowed some choice as to when, how, and whether they will act. The officials ought to be given some choice in the matter of deciding specific cases. The reason is that more often than not, nowadays the Administration is called upon to handle intricate problems involving investigation of facts, applying law to those facts, making of choices and exercising discretion before taking an action. Besides, a few more reasons may be cited leading to the need of conferment of discretionary powers.
The present-day problems which the Administration is required to deal with are of complex and varying nature and it is difficult to comprehend them all within the scope of general rules. Most of the problems which arise are practically new, of the first impression. Lack of any previous experience to deal with them does not warrant the adoption of general rules. 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 the absence of specific rules applicable to the situation.
Circumstances differ from case to case so that applying one rule mechanically to all cases may itself result in injustice. There is therefore need for individualization of the exercise of power by the Administration and hence the need for discretion. Statutes make general provisions; subject to these provisions specific cases have to be decided. The Administration is required to apply a vague or indefinite statutory provision to the fact—situation of each and every individual case coming before it for decision. The circumstances and the fact situation of two cases are not often identical.
All these considerations make it inevitable to vest discretionary powers in the officials to take care of individual cases on their merits. Accordingly, the modern trend in Administrative Process is to vest large discretionary powers in officials which means that they enjoy large areas of choices between alternative courses of action; they can decide whether to act, or not to act in a given factual situation, or when to act or how to act. The legislation conferring discretionary powers does not specify clearly, definitively or articulately the conditions and circumstances subject to which, and the standards and norms with reference to which, the concerned official may have to exercise the powers conferred on him. The power to do nothing in a situation, or not to act at all, is also a significant power; it is no less important than the power to do something. As Davis observes in this connection ; “all along the line an enormous discretionary power is the power to do nothing The power to do nothing, or almost nothing, or something less than might be done, seems to be the omnipresent power …… “
As in any other modern democratic country, in India, as well, there is predominance of discretionary powers. Being a democratic country believing in regulated economy and not free economy, and having accent on centralised planning of socio-economic development, there is a much faster and more pervasive growth of discretionary powers in India. A demonstrable contemporary trend in India thus is that a large volume of case—law arises around the discretionary powers which is indicative of the wide—spread use of the technique of conferring discretionary powers on the Administration in India. A complete analytical study of such powers has not so far been attempted in India. Such a study is a great desideratum to understand the breadth and depth of such powers, the standards and procedural safeguards to which they are subject, and the control and safeguards which may be available against their improper exercise.
DOCTRINE OF EXCESSIVE DELEGATION OF DISCRETION
The courts have generally attempted to control the delegation of legislative power on the Administration through the doctrine of “excessive delegation of legislative power”. Correspondingly to that, the courts have also developed the doctrine of ‘excessive delegation of discretion’ by invoking certain Fundamental Rights. The doctrine envisages that conferral of too broad and uncanalised discretion on the Administration is invalid. Discretionary power ought to be hedged by policy, standards, guidelines and/or procedural safeguards, otherwise the courts may declare the statutory provision conferring sweeping discretion as void. Comparatively speaking, the courts have shown greater deference to laws conferring powers of delegated legislation than to the laws conferring discretion.
In the former case, often the courts have been satisfied with vague or broad statements of policy and have even upheld statutes when the policy was not apparent. But the courts have adopted somewhat more critical attitude while scrutinising statutory provisions conferring discretion with reference to Fundamental Rights. The reason is that delegated legislation being a power to make orders of general applicability presents less chance of administrative arbitrariness than administrative discretion which is applied to individual cases. Still, the courts adopt a flexible attitude in applying the doctrine of excessive delegation of discretion to different situations and show a good deal of tolerance towards conferral of large discretionary powers if they can find some substantive and/or procedural safeguards to regulate the exercise of power. At times, vague and general standards have been held as adequate.
The Court may at times imply a standard to save a statute from an unconstitutional broad delegation. Even such a judicial approach serves a useful purpose insofar as a standard less delegation becomes subject to a judicially-made standard. The judicial tendency is to seek to uphold, rather than invalidate, legislation on this ground. It is only in an extreme case of too broad discretion having been conferred without any policy or procedural safeguards that the court may be persuaded to declare the relevant law invalid on the ground of excessive delegation of discretion. However, it needs to be emphasized that the final word in this regard rests with the court and not the legislature. BHAGWATI, J., has spoken of the doctrine as follows :
“It is significant to note that the entire development of Administrative law is characterised by a consistent series of decisions controlling and structuring the discretion conferred on the State and its officers. The law always frowns on uncanalised and unfettered discretion on any instrumentality of the State and it is the glory of administrative law that such discretion has been through judicial decisions structured and regulated”.
However, only because a wide discretionary power has been conferred on the statutory authority, that by itself would not lead to a presumption that the same is capable of misuse or on that count alone the provisions of Art. 14 of the Constitution would be attracted. But, when a statute confers a wide power on a statutory authority, a closer scrutiny would be required.
The Section 200(l) of the Motor Vehicles Act, 1988 gives discretionary power to the authorised officer to compound certain offences under the Act, if the accused is willing, by charging a compounding fee. lt was contended that this power was unguided, uncanalised and arbitrary. The Apex Court held that it was not so because it was not mandatory that the authorised officer would always compound the offence as it depended upon the willingness of the accused and might be done even before institution of the prosecution case. Besides, Section 194 of the Act which is the penal and charging section prescribes the maximum outer limit within which the compounding fee would be prescribed and so long as the compounding fee did not exceed the fine prescribed by the penal section, the same could not be declared to be either exorbitant or irrational or bereft of guidance.
One great advantage of having a statement of a standard or policy in the statute is to enable the courts to assess whether a specific administrative action is in conformity with this standard or policy. This purpose can be achieved effectively only if the courts insist that the legislature expresses its policy or standards clearly and in such terms as would help the courts to keep the exercise of discretion within the four corners of the legislative policy.
It may not be out of place to mention here that in the Fundamental Rights there exists a source of judicial power which, if fully exploited, can go a long way in mitigating the dangers of too much administrative discretion—a development which is causing a good deal of anxiety to thinking people in many democratic countries. Fundamental Rights are real and not notional; they are substantial and not fictional, and they should be treated by the courts as such. Fortunately, the Indian Constitution incorporates within itself several checks and balances and it depends upon us how we use them. It would lead to better democratic ideals and traditions if we fully exploit the expedients which the Constitution has placed at our disposal for controlling administrative action and keeping it within proper bounds. In a welfare state, a balance has to_ be drawn between public power and individual freedom, and it is for the courts to ensure that this balance is not tilted too much in favour of the Administration as against the individual.
‘Judicial Review’ may be defined as a “court’s power to review the actions of other branches of the government, especially the court’s power to invalidate legislative and executive actions as being unconstitutional”.
Judicial review in India deals with three major aspects;
(i) Judicial review of legislative action.
(ii) Judicial review of judicial decision.
(iii) Judicial review of administrative action.
Judicial review of administrative action is perhaps the most important development in the field of public law in the second half of this century. In India, the doctrine of judicial review is the basic feature of our Constitution. Judicial review is the most potent weapon in the hands of the judiciary for the maintenance of the rule of law. Judicial review is the touchstone and essence of rule of law.
The Supreme Court and High Courts are the ultimate interpreters of the Constitution. It is, therefore, their duty to find out the extent and limits of the power of coordinate branches, viz. executive and legislature and to see that they do not transgress their limits. This is indeed a delicate task assigned to the judiciary by the Constitution.
The object of judicial review is to ensure that the authority does not abuse its power and the individual receives just and fair treatment and not to ensure that the authority reaches a conclusion which is correct in the eyes of law.
JUDICIAL REVIEW AND ADMINISTRATIVE DISCRETION
Discretionary powers conferred on the administration are of different types. They may range from simple ministerial functions like maintenance of births and deaths register to powers which seriously affect the rights of an individual, e.g. acquisition of property, regulation of trade, industry or business, investigation, seizure, confiscation and destruction of property, detention of a person on subjective satisfaction of an executive authority and the like.
As a general rule, it is accepted that courts have no power to interfere with the actions taken by administrative authorities in exercise of discretionary powers.
In Small v. Moss, the Supreme Court of the United States observed:
“Into that field (of administrative discretion) the courts may not enter.”
Lord Halsbury also expressed the same view and observed: “Where the legislature has confided the power to a particular body, with a discretion how it is to be used, it is beyond the power of any court to contest that discretion”.
In the leading case of Roberts v. Hopwood, the Court stated; “There are many matters, which the courts are indisposed to question. Though they are the ultimate judges of what is lawful and what is unlawful to borough councils, they often accept the decisions of the local authority simply because they are themselves ill equipped to weigh the merits of one solution of a practical question as against another.”
In India also, the same principle is accepted and in a number of cases, the Supreme Court has held that courts have no power to interfere with the orders passed by the administrative authorities in exercise of discretionary powers.
This does not, however, mean that there is no control over the discretion of the administration. As indicated above, the administration possesses vast discretionary powers and if complete and absolute freedom is given to it, it will lead to arbitrary exercise of power. The wider the discretion the greater is the possibility of its abuse. As it is rightly said, ‘every power tends to corrupt and absolute power tends to corrupt absolutely’. All powers have legal limits. The wider the power, the greater the need for the restraint in its exercise.
There must be control over discretionary powers of the administration so that there will be a ‘Government of laws and not of men’. It is not only the power but the duty of the courts to see that discretionary powers conferred on the administration may not be abused and the administration should exercise them properly, responsibly and with a view to doing what is best in the public interest. ‘It is from this presumption that the courts take their warrant to impose legal bounds on even the most extensive discretion”.
Wide discretion must be in all administrative activity but it should be discretion defined in terms which can be measured by legal standards lest cases of manifest injustice go unheeded and unpunished’.
There is nothing like unfettered discretion immune from judicial reviewability. The truth is that in a Government under law, there can be no such thing as unreviewable discretion. The law always frowns on uncanalised and unfettered discretion conferred on any instrumentality of the State and it is the glory of administrative law that such direction has been through judicial decisions structured and regulated. It is true that abuse of power is not to be assumed lightly but, experience belies the expectation that discretionary powers are always exercised fairly and objectively. The basic rule should be that the governing power wherever located must be subject to fundamental constitutional limitations.
Thus, in almost all the democratic countries it is accepted that disretion conferred on the administration is not unfettered, uncontrolled or non-reviewable by the courts. To keep the administration within its bounds, the courts have evolved certain principles and imposed some conditions and formulated certain tests and taking recourse to these principles, they effectively control the abuse or arbitrary exercise of discretionary power by the administration. In India, where in a written Constitution the power of judicial review has been accepted as the ‘heart and core’ of it and which is treated as the ‘basic and essential feature of the Constitution’ and ‘the safest possible safeguard’ against abuse of power by any administrative authority, the judiciary cannot be deprived of the said power.
ABUSE OF DISCRETION
There are various restrictions on discretion, such as one should not act in bad faith. No discrimination could be made while exercising discretion between persons on the basis of irrelevant criteria. Discretion once conferred cannot be restricted or fettered. When the discretion is conferred by statute, the authority cannot refuse to exercise discretion. While exercising discretion the authority has to maintain independence and impartiality. The authority upon whom discretionary power has been conferred cannot act at the dictates of higher and other authority. When the discretion is conferred upon the authority it is that authority who has to exercise discretion by its own mind and after taking into consideration of all relevant factors keeping in view the object of conferring such a discretion. It should not be influenced by improper motive or improper purpose. Another aspect of the matter is that the decision makers must not allow their personal interest and beliefs to influence them in the exercise of their statutory powers, but must exercise those powers impartially and should not pre- judge the case. The decision makers should not make up their mind so strongly in advance that they cannot be influenced to decide another way at the hearing. They should not hold predetermined views of the issues that would be applied regardless of the merit of the case.
Many administrative decisions involve an element of discretion. Someone must be given the responsibility of applying the law to each situation as it arises.
Dicey states that it is used to be thought to be classical doctrine that wide discretionary power was incompatible to the rule of law, for what the rule of law requires is not that wide discretionary power would be totally absent but the law should be able to control its exercise so that there may not be any abuse of discretion. It is well settled that all power has its legal limits and that the Court should draw those limits in a way which strikes the most suitable balance between executive efficiency and legal protection of the citizens. Nowadays Parliament calls for more and more powers upon the executive which on their face might appear to be absolute and arbitrary. The Court cannot recognize or accept the existence of any arbitrary power and unfettered discretion. The Court laid down the principle which requires the statutory power as to be exercised reasonably and in good faith and for proper and authorised purpose only and that too in accordance with the spirit as well as letter of the empowering Act. The exercise of discretion involves choice from among options. It is also equally well settled that discretion is not absolute or unfettered and the decision makers cannot simply do as they please. All discretionary powers must be exercised within certain basic parameters. The primary rule is that discretion should be used to promote the policies and objects of the governing Act. A discretionary power should not be used to achieve a purpose not contemplated by the Act that confers the power. All decision makers are expected to act in good faith. Powers must not be abused and should not be exercised arbitrarily or dishonestly.
Every power must be exercised by the authority reasonably and lawful; However, it is rightly said, “every power tends to corrupt and absolute power corrupts absolutely”. It is, therefore, not only the power but the duty of the courts; to see that all authorities exercise their powers properly, lawfully and in good faith. If the power is not exercised bona fide, the exercise of power is bad and is action illegal.
Though precise and scientific definition of the expression “mala fide” is not possible, it means ill—will, dishonest intention or corrupt motive. A power may be exercised maliciously, out of personal animosity, ill-will or vengeance it fraudulently and with intent to achieve an object foreign to the statute.
From the above definition, it can be said that malice is of two types:
(1) express malice or “malice in fact”, and
(2) implied or legal malice or “malice ; law”. Mala fides violating proceedings may be factual or legal.
Former is actuated by extraneous considerations whereas the latter arises where a public authority acts deliberately in defiance of law, may be without malicious intention or improper motive. In other words, a plea of mala fide involves two questions; (i) whether there is a personal bias or oblique motive and (ii) whether the administrative action is contrary to the objects, requirements and conditions of a valid exercise of power.
(A) Malice in fact ` -
When an administrative action is taken out of personal animosity, ill-will;. vengeance or dishonest intention, there is ‘malice in fact’ and the action necessarily requires to be struck down and quashed.
Thus, in Pratap Singh v. State of Punjab, the petitioner was a civil surgeon and he had taken leave preparatory to retirement. Initially the leave was granted, but subsequently it was revoked. He was placed under suspension, a departmental inquiry was instituted against him and, ultimately, he was removed from service. The petitioner alleged that the disciplinary proceedings had been instituted against him at the instance of the then Chief Minister to wreak personal vengeance on him as he had not yielded to the illegal demands of the former. The Supreme Court accepted the contention, held the exercise of power to be mala fide and quashed the order.
In E.P. Royappa v. State of TN. a member of Indian Administrative Service was appointed as the Chief Secretary to Govemment. The Government shifted him to a newly created temporary post of Officer on Special Duty. The petitioner challenged the action as mala fide and malicious on the part of the Chief Minister, Governor and Cabinet Ministers. Observing that the allegations of mala fide levelled by the petitioner against the Chief Minister were ‘baseless’, the Supreme Court dismissed the petition.
In Shivajirao Patil v. Mahesh Madhav , in a writ petition, it was alleged that altering and tampering with the mark-sheet had been done in favour of A, daughter of the then Chief Minister of Maharashtra at M.D. Examination at the behest of the Chief Minister. Though there was no direct evidence about the fact, from various circumstances, the court held that such alteration had been made by the person conducting the examination at the behest of the then Chief Minister. Mukharji, J. (as he then was) rightly observed: “This court cannot be oblivious that there has been a steady decline of public standards or public morals and public morale. It is necessary to cleanse public life in this country along with or even before cleaning the physical atmosphere. The pollution in our values and standards is an equally grave menace as the pollution of the environment. Where such situations cry out the courts should not and cannot remain mute and dumb.”
On the other hand, in State of Haryana v. Bhajan Lal, a complaint regarding corruption was filed against the former Chief Minister. The High Court under Article 226 of the Constitution quashed the proceedings inter alia observing that they were initiated due to political vendetta and were tainted with personal mala fides. The Supreme Court quashed the order of the High Court.
(B) Malice in law :
When an action is taken or power is exercised without just or reasonable cause or for purpose foreign to the statute, the exercise of power would be bad and the action ultra vires.
‘Malice in law’ is different from ‘malice in fact’ and may be assumed from the doing of a wrongful act intentionally without just cause or excuse, or for want of care.
Thus, if a local authority were to use its power to erect urinals ‘in front of any gentleman’s house’, it would be impossible to hold it to be bona fide exercise of power.
In Municipal Council of Sydney v. Campbell, under the relevant statute the Council was empowered to acquire land for “carrying out improvements in or remodelling any portion of the city”. The Council acquired the disputed land for expanding a street. But in fact the object was to get the benefit of probable increase in the value of land as a result of the proposed extension of the highway. No plan for improving or remodelling was proposed or considered by the Council. It was held that the power was exercised with ulterior object and hence it was ultra vires.
In State of Punjab v. Gurdial Singh, land of the petitioner was acquired under the Land Acquisition Act for construction of market (mandi). It was alleged that the action was mala fide and was a result of influence wielded by the Minister who was interested in getting other land released. The Minister did not deny the allegations. The Supreme Court quashed the proceedings holding them to be mala fide. The Court said; “Not that this land is needed for the mandi in the judgement of the Government, but that the mandi need is hijacked to reach the private destination of depriving an enemy of his land through back-seat driving of statutory engine.”
In Ajit Kumar Nag v. Indian Oil Corpn. Ltd., a Senior Officer of the Corporation assaulted the Chief Medical Officer of a hospital and caused several injuries. He was, therefore, dismissed from service in accordance with Service Rules without holding injury. The action was challenged inter alia on the ground if mala fide exercise of power.
Negativing the contention, the Supreme Court noted that grave and serious situation was created by the appellant himself and he was rightly dismissed.
Two important factors will throw considerable light in determining whether ; decision is mala fide or motivated by improper considerations; (i) first relates to the manner or method of reaching the decision; and (ii) second to the circumstances in which the decision is taken and the considerations which have entered into in reaching that decision. It is difficult to establish mala fide in a straight—cut manner. In appropriate cases, the court may draw an inference of mala fide action from pleadings and antecedent circumstances. Such inference must be based on foundation of facts, pleaded and proved. An inference of mala fide cannot be drawn on insinuation and vague allegations.
Burden of proof
The burden of proving mala fide is on the person making the allegations, and the burden is ‘very heavy’. Neither express nor implied malice can be inferred or assumed. It is for the person seeking to invalidate an order to establish the charge of bad faith. The reason is simple and obvious. There is resumption in favour of the administration that it always exercises its power bona fide and in good faith. It is to be remembered that the allegations of mala fide are often more easily made than made out, and the very seriousness of such allegations demands proof of a high order of credibility. It is the last refuge of a losing litigant.
Where personal mala fides or ‘malice in fact’ is imputed against any person, he should be impleaded eo nomine as party respondent and should be afforded an opportunity to meet with allegations of mala fide. In his absence, the court will not enquire into the allegations levelled by the petitioner. The reason is very simple. Principles of natural justice require that no person should be condemned unheard. Now if allegations have been made against a person who is not made a party to the proceedings and the court proceeds to consider them, natural justice is violated.It is, however, not necessary to make allegations against a named official.
When definite allegations have been made and necessary and sufficient particulars in support of such allegations have been furnished by the petitioner in the petition, it is obligatory on the part of the respondent to deal with them by filing a counter—affidavit. In the absence of a denial affidavit by the person against whom such allegations are made, the court may accept those allegations as correct on the test of probability.86 It is, however, not necessary that in each and every case when allegations have been made that a counter refuting such allegations must be filed. The petitioner has to prima facie satisfy the court that there is substance in the allegations. Vague, wild and casual allegations are not enough.
Thus, in Hem Lall v. State of Sikkim, an Advocate was detained under the National Security Act, 1980 (NSA). He alleged that the Chief Minister wanted him to join politics. But as he refused to do so, he was detained. No material whatsoever was placed on record to substantiate the allegations. The Supreme Court held that the counter affidavit of the Chief Minister was not necessary.
When serious allegations of mala fides have been made by the petitioner in the petition, the court may not dismiss the petition in limine without issuing notice to the respondent. No doubt the court would be justified in refusing to carry out investigation by making a roving inquiry if sufficient particulars making out a prima facie case are not included in the petition. But the court must consider the totality of the circumstances and not each allegation individually and independently for deciding whether the impugned action is mala fide.
Power and Duty of courts
Where allegations of mala fides (factual or legal) have been levelled against an authority or an officer, who has passed an order or taken an action, the court must consider those allegations, materials placed on record in support of such Legations and the order or action impugned. Every action of a public authority should be informed by reason and it must re bona fide. The power to act in discretion is not a power to act ad arbitrarium. Where the court is satisfied that the authority has acted arbitrarily, it is not only the power but the duty of the court to interfere with the action and grant relief to the aggrieved party.
While dealing with allegations against Government, constitutional functionaries or high-ranking officials, a court must start with presumption of mala fide exercise of power. But if it is convinced that there is misuse or abuse of power or administration has acted ‘with an evil eye and an uneven hand’, it should not hesitate in dealing with a situation ‘with a heavy hand’.
Legislative power and mala fides
It is well—established that an executive action can be challenged on the ground of mala fide exercise of power. A question may, however, arise: whether pure legislative or quasi-legislative act can be challenged on such ground? The decisions of the Supreme Court are not uniform on that point. In some cases, it was held that legislative action can be impugned on the ground of malice in law, whereas in other cases, a contrary view has been taken. It is submitted that the former view is correct and is in consonance with the doctrine of judicial review which is the basic structure of the constitution.
Sometimes, a peculiar situation arises. Here the order is not wholly based on ·extraneous or irrelevant considerations. It is based partly on relevant and existent considerations and partly on irrelevant or non-existent considerations.
Cleavage of Opinion
There is no uniformity in judicial pronouncements on this point. In some cases, it was held that the proceedings were vitiated, while in other cases, it was held that the proceedings were not held to be bad. It is submitted that the proper approach is to consider it in two different situations:
(a) Conclusions based on subjective satisfaction; and
(b) Conclusions based on objective facts.
Conclusion based on subjective satisfaction
If the matter requires purely subjective satisfaction; e.g. detention matters, a strict view is called for, and if the order of detention is based on relevant and irrelevant considerations, it has to be quashed. The reason is very simple and obvious. It is very difficult for the court to say as to what extent the irrelevant (or nonexistent) grounds have operated on the mind of the detaining authority and whether it would have passed the same order even without those irrelevant or num existent grounds.
In Dwarka Das v. State of J&K, setting aside the order of the detention which was based on relevant and irrelevant grounds, the Supreme Court observed: “Where power is vested in a statutory authority to deprive the liberty of a subject —on its subjective satisfaction with reference to specified matters, if that satisfaction is stated to be based on a number of grounds or for a variety of reasons, all taken together and if some out of them are found to be nonexistent or irrelevant, the very exercise of that power is bad. That is so because the matter being one for subjective satisfaction, it must be properly based on all the reasons on which it purports to be based. If some out of them are found to be non- existent or irrelevant, the court cannot predicate what the subjective satisfaction of the said authority would have been on the exclusion of those grounds or reasons. To uphold the validity of such an order in spite of the invalidity of some 0f the reasons or grounds would be to substitute the objective standards 0f the court for the subjective satisfaction of the statutory authority.”
But the Court further stated:
“In applying these principles, however, the Court must be satisfied that the vague or irrelevant grounds are such as, if excluded, might reasonably have affected the subjective satisfaction of the appropriate authority. It is not merely because some ground or reason of a comparatively unessential nature is defective that such an order based on subjective satisfaction can be held to be invalid. The court while anxious to safeguard the personal liberty of the individual will not lightly interfere with such orders. It is in the light of these principles that the validity of the impugned order has to be judged.”
It is respectfully submitted that these observations are unnecessary and very wide and do not lay down the correct law. They leave the courts to speculate. If the order is based on subjective satisfaction and if it is not permissible for the court (as the court itself conceded) ‘to substitute the objective standards of the court for the subjective satisfaction of the statutory authority’ one fails to see how the objective standard can be applied? It is therefore, submitted that in detention matters, the orders must necessarily be quashed if they are based on mixed considerations.
Sometimes, the Legislature itself provides that inspite of mixed considerations or relevant as well as irrelevant grounds, an order of detention shall be treated as legal and valid. For instance, Section 5-A of the National Security Act, 1980 enacts that when an order of detention is made on two or more grounds, it shall be deemed to have been made separately on each ground and it will not be deemed to be invalid or inoperative merely because one or more of the grounds is or are non- existent, vague or irrelevant. Such provisions are held to be constitutional.
Conclusion based on objective facts
If the conclusion of the authority is based on objective facts and the action is based on relevant and irrelevant considerations the court may apply the objective standard and decide the validity or otherwise of the impugned action.
In Dhirajlal v. CIT the question was whether the appellant was liable to assessment. The tribunal, relying on relevant as well as irrelevant material, held him liable. The appellant approached the Supreme Court was ‘conceded’ by the Government that the action was taken on relevant as also irrelevant considerations. But it was contended that relevant material was sufficient to uphold the order. Rejecting the contention, the Court said; “In our opinion, this contention is not well founded. It is well established that when a Court of fact acts on material, partly relevant and partly irrelevant, it is impossible to say to what extent the mind of the Court was affected by the irrelevant material used by it in arriving at its finding. Such a finding is vitiated. It is submitted that the court was not right nor the proposition of law ‘well- established’ in cases of conclusions on objective facts.
In State of Orissa v. Bidyabhushan Mahapatra, A was dismissed from service on certain charges. The High Court found that some of them were not proved and, therefore, directed the Government to consider the case whether on the basis of the remaining charges the punishment of dismissal was called for. On appeal, the Supreme Court reversed the judgment of the High Court and upheld the order of dismissal. According to the Supreme Court, if the order could be supported on any of the grounds, it was not for the court to consider whether on that ground alone the punishment of dismissal can be sustained.
Shah, J. (as he then was) rightly observed: “If the order may be supported on any finding as to substantial misdemeanour for which the punishment can lawfully be imposed, it is not for the court to consider whether that ground alone would have weighed with the authority in dismissing the public servant. The court has no jurisdiction if the findings of the inquiry officer or the Tribunal prima facie make out a case of misdemeanor, to direct the authority to reconsider the order because in respect of some of the findings but not all it appears that there had been violation of rules of natural justice.
In Zora Singh v. J.M.Tandon the Court proceeded to lay down principle thus;
“The principle that if some of the reasons relied on by a Tribunal for its conclusion turn out to be extraneous or otherwise unsustainable, its decision would be vitiated, applies to cases in which the conclusion is arrived at not on assessment of objective facts or evidence, but on subjective satisfaction. The reason is that whereas in cases where the decision is based on subjective satisfaction if some of the reasons turn out to be irrelevant or invalid, it would be impossible for a superior court to find out which of the reasons, relevant or irrelevant, valid, or invalid, had brought about such satisfaction. But in a case where the conclusion is based on objective facts and evidence, such a difficulty would not arise. If it is found that there was legal evidence before the Tribunal, even if some of it was irrelevant, a superior court would not interfere if the finding can be sustained on the rest of the evidence.”
In State of U.P. v. Chandra Mohan Nigam, an order of compulsory retirement passed against a senior officer of the State was challenged. It was contended that one of the grounds on which the order was made was ‘absolutely nonexistent’, and the order was invalid. The Court, however, upheld the order observing that the principle governing order of preventive detention would not apply to a case of compulsory retirement and could not be equated with an order passed in disciplinary proceedings. ‘
Conclusion: Correct principle
From the above discussion and case law, it is submitted that there is clear distinction between an order based on ‘subjective satisfaction’ and an order based on ‘objective facts’. In the case of former, in absence of legislative device that where an order is made on two or more grounds, it should be deemed to have been made on each and every ground separately, the order would be illegal and invalid since it is not open and permissible for a court to apply ‘objective standard’ to ‘subjective satisfaction’ and to substitute its own decision for the decision of the authority. Subjective satisfaction, in such cases, gets vitiated and the order is liable to be set aside. In the case of latter, however, the position is different. Here the order is based on ‘objective facts’. On the basis of objective facts, grounds, reasons and materials, an action is taken. It is, therefore, open to appellate or revisional authority or to a court of law exercising power of judicial review to uphold the order if it can be supported on the ground or grounds which can be said to be legally well-founded, relevant and germane and the authority or court is satisfied that such order could have been passed on the basis of proved ‘objective facts’.
The law reports abound with examples of the courts striking down discretionary decisions where the discretion has been used for an improper purpose. A public body with power to construct lavatories could not use that power in order to build a subway under a street; deportation could not be used to achieve ; extradition; the Home Secretary could not use his powers to revoke television license where people had bought a new license early in order to avoid a price increase, a local authority had no power to enter into speculative financial swap transactions; and a local authority could not use its power to dispose of land to promote the electoral advantage of the dominant party on the council.
The courts will determine the purpose of a particular statute as a matter of construction, and it is interesting what influences judicial thinking in this respect. While the courts continue to insist that they are only keeping the authority within the boundaries of its power and not substituting their view, the dividing line can be a fine one. For example, planning authorities may grant planning permission unconditionally, or subject to such conditions as they think fit. A number of cases have turned on the legality of such conditions. The general position adopted has been that the conditions must fairly and reasonably relate to the permitted development. In applying this test the courts have upheld fairly broad conditions, but they have also struck down a number by using concepts that are open to debate. Thus, the court held to be invalid conditions attached to the grant of a caravan site license which required, inter alia, site rents to be agreed with council and security of tenure to be provided for caravan owners.
In the leading American case of Nader v. Bork, by revoking a regulation, Cox, Watergate Special Prosecutor was relieved by the Attorney-General by abolishing that office. However, within few days, once again, the regulation was reinforced. The court held the revocation illegal since “it was simply a ruse to permit the discharge of Cox, a purpose that could never be legally accomplished with the original regulation in effect”.
In Bangalore Medical Trust v. Muddappa, a piece of land earmarked for a public park was allotted at the instance of the then Chief Minister to a private trust for construction of nursing home. It was contended that the action was taken in public interest and the local authority would get income. The Supreme court however, held that the “exercise of power was contrary to the purpose for which it was conferred under the statute”.
In Forward Construction Co. v. Prabhat Mandall, a plot was reserved for a bus depot under the Development Plan. A substantial portion of the plot was utilised for the bus depot whereas a part thereof was allowed to be used for commercial purpose. The Supreme Court, in these circumstances, held that it could not be said that the plot had been used for a different purpose from the one for which it had been acquired.
ACTING WITHOUT JURISDICTION
It is well-settled that there can be no exercise of power unless such power exists in law. If the power does not exist, the purported exercise of power would be nonexistent and void. Likewise, where the source of power exists, exercise of it is referable only to that source and not to some other source. But if a source of power exists, mention of wrong provision or even omission to mention the provision containing such power will not invalidate such order.
In R. v. Minister of Transport, even though the Minister had no power to revoke the license , he passed an order of revocation. The action was held ultra vires and without jurisdiction. Similarly, if the appropriate government has power to refer an “industrial dispute” to a tribunal for adjudication, it cannot refer a dispute which is not an industrial dispute. Again, if a taxing authority imposes tax on a commodity exempted under the Act, the action is without authority of law
In State of Gujarat v. Patil Raghav Natha, the revisional authority exercising powers under the Land Revenue Code went into the question of title. The Supreme Court observed that when the title of the occupant was in dispute, the appropriate course would be to direct the parties to approach the civil court and not to decide the question.
In Ahmedabad St. Xavier’s Callege Society v. State of Gujarat, the Supreme Court ruled that the University had no power to compel a minority institute to adopt a particular medium of instruction in education.
In Govt. of A.P. v. MJT Khan, two convicts by competent courts of the State of M.P. and Maharashtra were transferred to the State of Andhra Pradesh. The Governor of Andhra Pradesh granted remission to them. The action was held in excess of jurisdiction since the Government of Andhra Pradesh was not an ‘appropriate Government’.
An administrative authority must exercise the power within the limits of the statute and if it exceeds those limits, the action will be held ultra vires. A question whether the authority acted within the limits of its power or exceeded it can always be decided by a court. For example, if an officer is empowered to grant a loan of Rs 10,000 in his discretion for a particular purpose and if he grants a loan of Rs 20,000, he exceeds his power (jurisdiction) and the entire order is ultra vires and void on that ground.
In London County Council v. Attorney General, the local authority was empowered to operate tramways. The local authority also carried on a bus service. An injunction against the operation of buses by the Council was duly granted.
Similarly, in A.G. v. Fulham Corpn., the local authority was empowered by the statute to run municipal baths and wash-houses. An action of opening a public laundry by the corporation was held ultra vires. If the authority is empowered to award a claim for the medical aid of the employees, it cannot grant the said benefit to the family members of the employees. Likewise, if the relevant regulation empowers the management to dismiss a teacher, the power cannot be exercised to dismiss the principal. Again, if the Bar Council of India frames a rule prescribing pre enrolment training and apprenticeship for fresh law graduates seeking enrolment as advocates and such rule is beyond the power or authority of the Bar Council, it must be declared ultra vires. A question whether the authority has acted within the limits of law or has exceeded its jurisdiction depends upon the facts and circumstances of each case and should be decided keeping in view the provisions of the Act and conferment of power on the authority.
If the action complained of is arbitrary, discriminatory, irrational, unreasonable or perverse, it can be set aside in exercise of power of judicial review.
In the well known case of S.G. Jaisinghani v. Union of India, the Apex Court observed that absence of arbitrary power is the first essential of Rule of Law upon which our whole constitutional system is based. In a system governed by Rule of Law, discretion, when conferred on executive authorities, must be confined within clearly defined limits. If a decision is taken without any principle or provision of rule, it cannot be sustained.
In Ranjit Thakur v. Union of India, conviction and sentence of rigorous imprisonment for one year added with dismissal from service for disobeying an order of a superior military officer to eat food was held grossly disproportionate and arbitrary. An action of en bloc cancellation of petrol pump licenses is arbitrary and unfair.
COLOURABLE EXERCISE OF POWER
Where a power is exercised by the authority ostensibly for the purpose for which it was conferred, but in reality for some other purpose, it is called colourable exercise of power. Here, though the statute does not empower the authority to exercise the power in a particular manner, the authority exercises the power under the ‘colour’ or guise of legality.
This is also known as fraudulent exercise of power. The doctrine is based on the principle that an administrative authority cannot exercise power for a purpose not warranted by law.
In the leading case of Somawanti v. State of Punjab, interpreting the provisions of the Land Acquisition Act, 1894, the Supreme Court observed: “lf the purpose for which the land is being acquired by the State is within the legislative competence of the State, the declaration of the Government will be final, subject, however, to one exception. That exception is that g” there is a colourable exercise of power the declaration will be open to challenge at the instance of the aggrieved party.”
In H.D. Vora v. State of Maharashtra, the State Government requisitioned the flat of the petitioner, but in spite of repeated requests of the petitioner, it was not derequisitioned. Declaring the action bad the court observed that though the act of requisition was of a transitory character, the Government in substance wanted the flat for permanent use, which would be a ‘fraud upon the statute’.
A discretionary power conferred on an administrative authority must be exercised by that authority reasonably. If the power is exercised unreasonably, here is an abuse of power and the action of the authority will be ultra vires.
The term ‘unreasonable’ is ambiguous and may include many things, e.g. irrelevant or extraneous considerations might have been taken into account by the authority or there was improper or collateral purpose or mala fide exercise of power by it or there was colourable exercise of power by the authority and the action may be set aside by courts.
The term ‘unreasonable’ may include many things, e.g. irrelevant or extraneous considerations might have been taken into account by the authority or there was improper or collateral purpose or mala fide exercise of power by it or there was colourable exercise of power by the authority and the action may be set aside by courts. Thus, the expression “unreasonableness” covers a multitude of sins.
The concept of reasonableness and non arbitrariness pervades the entire constitutional scheme and is a golden thread which runs through the whole of the fabric of the Constitution.
In the leading case of Roberts v. Hopwood, the local authority was empowered to pay “such wages as it may think fit”. In exercise of this power, the authority fixed the wages at £ 4 per week to the lowest grade worker in 1921-22. The court held that though discretion was conferred, it was not exercised reasonably and the action was bad. According to Lord Wrenbury, ‘may think fit’ means ‘may reasonably think fit’. His Lordship observed: “Is the verb ‘think’ equivalent to ‘reasonably think”? My Lords, to my mind there is no difference in the meaning, whether the word ‘reasonably’ or ‘reasonable’ is in or out I rest my opinion upon higher grounds. A person in whom is vested a discretion must exercise his discretion upon reasonable grounds. A discretion does not empower a man to do what he likes merely because he is minded to do so —- he must in the exercise of his discretion do not what he likes but what he ought. In other words, he must, by use of his reason, ascertain and follow the course which reason directs. He must act reasonably.”
In different fields , in different situations and in different contexts the meaning of reasonableness differs and the test of reasonableness in Administrative law is different from Law of Torts.
The burden of proof lies on the petitioner who challenges that the authority of the act is unreasonable.
It is clear from the above given description and case laws that administrative discretion is like a tool or a weapon without which the flawless functioning of a modern government is not possible. Judicial review is like a check on the powers vested upon the administrative authorities and it helps to curb the misuse of power through wrong means.
Under the traditional theory, courts of law used to control existence and extent of prerogative power but not the manner of exercise thereof. That position was, however, considerably modified after the decision in Council of Civil Service Unions v. Minister for the Civil Service, wherein it was emphasised that the review ability of discretionary power must depend upon the subject- matter and not upon its source. The extent and degree of judicial review and justifiable area may vary from case to case.
It is a fundamental principle of law that every power must be exercised within the four corners of law and within the legal limits. Exercise of administrative power is not an exception to that basic rule. The doctrines by which those limits are ascertained and enforced form the very marrow of administrative law. Unfettered discretion cannot exist where the rule of law reigns. Again, all power is capable of abuse, and that the power to prevent the abuse is the acid test of effective judicial review.
At the same time, however, the power of judicial review is not unqualified or unlimited. If the courts were to assume jurisdiction to review administrative acts which are ‘unfair’ in their opinion (on merits), the courts would assume jurisdiction to do the very thing which is to be done by administration. If judicial review were to trespass on the merits of the exercise of administrative power, it would put its own legitimacy at risk.
Doctrine of Proportionality
With the rapid growth of administrative law and the need and necessity to control possible abuse of discretionary powers by various administrative authorities, certain principles are evolved by courts. If an action taken by an authority is contrary to law, improper, unreasonable or irrational, a court of law can interfere with such action by exercising power of judicial review. One of such modes of exercising power is doctrine of proportionality.
Doctrine of Legitimate Expectations
The doctrine of “legitimate expectations” has been recently recognized in the English as well as Indian legal system. It is the latest recruit to a long list of concepts fashioned by the courts for the review of administrative actions. The doctrine has an important place in the development of law of judicial review.
These doctrines help to keep a check on the exercise of misuse of power and if any action by authority is grossly inappropriate then the decision shall not be free from judicial immunity. Though in judicial review the court is not concerned with the correctness of the decision but the way in which decision is taken, the very decision making process involves attributing relative importance to various aspects in the case and there these doctrines come into play.
These doctrines have been developed in context of reasonableness to check the usage of powers and also to serve and protect the people by exercising the principles of natural justice.
 Sharp v. Wakefield, 1891 AC 173
 (1598) 5 Co 99b, as cited by Wade & Forsyth, Administrative Law,(Oxford University Press) Tenth Edition 2009 p 292.
 M.P. Jain & S.N. Jain, Principles of Administrative law Part 1, (Nagpur: Butterworths Wadhwa) 2008 p 900.
 UOI v. Kuldeep Singh (2004) 2 SCC 590
 S P Sathe, Administrative Law,( Nagpur: Butterworths Wadhwa) 2008 p 386.
 P.P.Craig, Administrative Law,(Thomson: Sweet & Maxwell) 2003 p 522.
 S.P.Sathe, Administrative Law, (Nagpur: Lexis Nexis) 2008 p 388.
 I.P.Massey, Administrative Law,(Lucknow: Eastern Book Company) 2008 p 73.
 Wade & Forsyth, Administrative Law, ( Oxford) 2009 p 320.
 Sheo Nandan Paswan v. State of Bihar AIR 1987 SC 877
 Hardey Motor Transport v. State of MP (2006) 8 SCC 613
 P.Ratnakar Rao v. State of A.P (1996) 5 SCC 359
 Blacks Law Dictionary (8th Edition) at p 864
 R.K.Jain v. UOI (1993) 4 SCC 119
 Chief constable v. Evans, (1982) 3 All ER 141
 (1938) 279 NY 288
 Westminster corp v. London & North Western Railway Corp. (1905) AC 426 (427)
 1925 AC 578 (606-07)
 A.K.Gopalan v. State of Madras AIR 1950 SC 27
 Wade & Forsyth, Administrative Law,(Oxford University Press) Tenth Edition 2009 p 295.
 Khudiram Das v. State of W.B. (1975) 2 SCC 81
 S.G.Jaisinghani v. UOI AIR 1967 SC 1427
 Minerva Mills Ltd. v. UOI (1980) 3 SCC 625
 C.K.Takwani, Lectures on Administrative Law (Lucknow:Eastern Book Company) 2008 p 297.
Varun Rajesh Israni
3rd year student
Institute of Law, Nirma University
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