CRITICAL ANALYSIS OF JUDICIAL REVIEW & ABUSES OF ADMINISTRATIVE DISCRETION

Jan 31, 2011 http://www.articlesbase.com/national-state-local-articles/critical-analysis-of-judicialre iew-abuses-of-administrati e-discretion-!1!2"3#.html

INTRODUCTION $iscretion in layman%s lan&ua&e means choosin& from amon&st the arious a ailable alternati es without reference to any predetermined criterion, no matter how fanciful that choice may be. ' person writin& his will has such discretion to dispose of his property in any manner, no matter how arbitrary or fanciful it may be. (ut the term )discretion% when *ualified by the word )administrati e% has somewhat different o ertones. )$iscretion% in this sense means choosin& from amon&st the arious a ailable alternati es but with reference to the rules of reason and justice and not accordin& to personal whims. +uch e,ercise is not to be arbitrary, a&ue and fanciful, but le&al and re&ular -1.. ln Rooke's case-2. /012 J. said, 3notwithstandin& the words of the commission &i e authority to the commissioners to do accordin& to their discretions, yet their proceedin&s ou&ht to be limited and bound into the rule of reason and law. 4or discretion is a science or understandin& to discern between falsity and truth, between wron& and ri&ht, between shadows and substances, between e*uity and colourable &losses and pretences, and not to do accordin& to their wills and pri ate affections. $iscretion is to 5now throu&h law what is just.3 6he word 3discretion3 connotes necessarily an act of a judicial character, and, as used with reference to discretion e,ercised judicially, it implies the absence of a hard7and-fast rule, and it re*uires an actual e,ercise of jud&ment and a consideration of the facts and circumstances which are necessary to ma5e a sound, fair and just determination, and a 5nowled&e of the facts upon which the discretion may properly operate-3.. 6he word 3discretion3 standin& sin&le and unsupported by circumstances si&nifies e,ercise of jud&ment, s5ill or wisdom as distin&uished from folly, unthin5in& or haste8 e idently therefore a discretion cannot be arbitrary but must be a result of judicial thin5in&. 6he word in itself implies i&ilant circumspection and care8 therefore, where the le&islature concedes discretion it also imposes a hea y responsibility-!..

DISCRETION INEVITABLE 9o modern &o ernment, howe er, can function without the &rant of discretionary power to administrati e authorities. :hether or not an action is re*uired depends upon the happenin& of certain e ents or the arisin& of certain situations that cannot be anticipated. 6hey ha e to be determined from time to time and the administrator has to respond by usin& the power ;discretion< &i en to her. :hat is to be done if a riot brea5s out= :hat is to be done if an essential commodity becomes scarce and suddenly &oes out of mar5et= +ome actions depend upon an assessment of the situation by an administrati e authority. 2,pressions such as %if he is of the opinion%, or %if he is satisfied%, or if he has reasonable &rounds to belie e% est power in the authority to act on formin& an opinion or bein& satisfied that the action is necessary. 'll such actions are discretionary. :here the +tate has to perform the re&ulatory function of ensurin& that acti ities such as business, trade, industry or social ser ice are conducted in public interest, the ambit of its discretionary power is bound to be lar&e->.. REASONS FOR GROWTH OF ADMINISTRATIVE DISCRETION 6here are se eral ery &ood reasons for conferrin& discretionary powers on officials. ?nder the modern political philosophy of a welfare state, there has been a tremendous state re&ulation o er human affairs in all democracies. 6his philosophy has led to a &reat e,tension of &o ernment responsibility for pro idin& social ser ices. 'lso, the &o ernment has assumed much &reater responsibility for the mana&ement of the economy. 6hus, the +tate has enacted le&islation for urban de elopment, slum7de elopment, plannin&, economic re&ulation etc. @ublic transport, health, electricity, coal minin& ha e all been brou&ht under state control, 'll this has necessitated conferment of broad discretionary powers on the &o ernment, its officials and instrumentalities. At is felt that owin& to the comple,ity of socio7economic conditions of modern life which the 'dministrati e @rocess has to contend with, a &o ernment endowed with merely ministerial powers, without ha in& any discretionary powers, will be far too inefficient, ri&id, circumscribed, and unwor5able. At will not be able to ta5e *uic5 decisions at critical times, and will be ineffecti e to deal with the modern comple, socio7politico7economic problems of the society-".. 'lso, at times need is felt for technical or other e,pertise in re&ulatin& a particular acti ity and it is felt that e,pertise will de elop on a case to case basis. 6o achie e these objecti es iB., e,pedition, fle,ibility and e,pertise in administrati e decision ma5in&, it is felt necessary that, to some e,tent, officials must be allowed some choice as to when, how, and whether they will act. 6he officials ou&ht to be &i en some choice in the matter of decidin& specific cases. 6he reason is that more often than not, nowadays the 'dministration is called upon to handle intricate problems in ol in& in esti&ation of facts, applyin& law to those facts, ma5in& of choices and e,ercisin& discretion before ta5in& an action. (esides, a few more reasons may be cited leadin& to the need of conferment of discretionary powers. 6he present-day problems which the 'dministration is re*uired to deal with are of comple, and aryin& nature and it is difficult to comprehend them all within the scope of &eneral rules. Cost of the problems which arise are practically new, of the first impression. Dac5 of any pre ious
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e,perience to deal with them does not warrant the adoption of &eneral rules. At is not always possible to foresee each and e ery problem8 but when a problem arises, it must in any case be sol ed by the 'dministration in spite of the absence of specific rules applicable to the situation. /ircumstances differ from case to case so that applyin& one rule mechanically to all cases may itself result in injustice. 6here is therefore need for indi idualiBation of the e,ercise of power by the 'dministration and hence the need for discretion. +tatutes ma5e &eneral pro isions8 subject to these pro isions specific cases ha e to be decided. 6he 'dministration is re*uired to apply a a&ue or indefinite statutory pro ision to the fact7situation of each and e ery indi idual case comin& before it for decision. 6he circumstances and the fact situation of two cases are not often identical-E.. 'll these considerations ma5e it ine itable to est discretionary powers in the officials to ta5e care of indi idual cases on their merits. 'ccordin&ly, the modern trend in 'dministrati e @rocess is to est lar&e discretionary powers in officials which means that they enjoy lar&e areas of choices between alternati e courses of action8 they can decide whether to act, or not to act in a &i en factual situation, or when to act or how to act. 6he le&islation conferrin& discretionary powers does not specify clearly, definiti ely or articulately the conditions and circumstances subject to which, and the standards and norms with reference to which, the concerned official may ha e to e,ercise the powers conferred on him. 6he power to do nothin& in a situation, or not to act at all, is also a si&nificant power8 it is no less important than the power to do somethin&. 's $a is obser es in this connection 8 3all alon& the line an enormous discretionary power is the power to do nothin& 6he power to do nothin&, or almost nothin&, or somethin& less than mi&ht be done, seems to be the omnipresent power ...... 3 's in any other modern democratic country, in Andia, as well, there is predominance of discretionary powers. (ein& a democratic country belie in& in re&ulated economy and not free economy, and ha in& accent on centralised plannin& of socio-economic de elopment, there is a much faster and more per asi e &rowth of discretionary powers in Andia. ' demonstrable contemporary trend in Andia thus is that a lar&e olume of case7law arises around the discretionary powers which is indicati e of the wide7spread use of the techni*ue of conferrin& discretionary powers on the 'dministration in Andia. ' complete analytical study of such powers has not so far been attempted in Andia. +uch a study is a &reat desideratum to understand the breadth and depth of such powers, the standards and procedural safe&uards to which they are subject, and the control and safe&uards which may be a ailable a&ainst their improper e,ercise-#.. DOCTRINE OF EXCESSIVE DELEGATION OF DISCRETION 6he courts ha e &enerally attempted to control the dele&ation of le&islati e power on the 'dministration throu&h the doctrine of 3e,cessi e dele&ation of le&islati e power3. /orrespondin&ly to that, the courts ha e also de eloped the doctrine of )e,cessi e dele&ation of discretion% by in o5in& certain 4undamental Fi&hts. 6he doctrine en isa&es that conferral of too broad and uncanalised discretion on the 'dministration is in alid. $iscretionary power ou&ht to be hed&ed by policy, standards, &uidelines and/or procedural safe&uards, otherwise the courts may declare the statutory pro ision conferrin& sweepin& discretion as oid. /omparati ely
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spea5in&, the courts ha e shown &reater deference to laws conferrin& powers of dele&ated le&islation than to the laws conferrin& discretion. An the former case, often the courts ha e been satisfied with a&ue or broad statements of policy and ha e e en upheld statutes when the policy was not apparent. (ut the courts ha e adopted somewhat more critical attitude while scrutinisin& statutory pro isions conferrin& discretion with reference to 4undamental Fi&hts. 6he reason is that dele&ated le&islation bein& a power to ma5e orders of &eneral applicability presents less chance of administrati e arbitrariness than administrati e discretion which is applied to indi idual cases. +till, the courts adopt a fle,ible attitude in applyin& the doctrine of e,cessi e dele&ation of discretion to different situations and show a &ood deal of tolerance towards conferral of lar&e discretionary powers if they can find some substanti e and/or procedural safe&uards to re&ulate the e,ercise of power. 't times, a&ue and &eneral standards ha e been held as ade*uate-G.. 6he /ourt may at times imply a standard to sa e a statute from an unconstitutional broad dele&ation. 2 en such a judicial approach ser es a useful purpose insofar as a standard less dele&ation becomes subject to a judicially-made standard. 6he judicial tendency is to see5 to uphold, rather than in alidate, le&islation on this &round. At is only in an e,treme case of too broad discretion ha in& been conferred without any policy or procedural safe&uards that the court may be persuaded to declare the rele ant law in alid on the &round of e,cessi e dele&ation of discretion. Howe er, it needs to be emphasiBed that the final word in this re&ard rests with the court and not the le&islature. (H'I:'6A, J., has spo5en of the doctrine as follows : 3At is si&nificant to note that the entire de elopment of 'dministrati e law is characterised by a consistent series of decisions controllin& and structurin& the discretion conferred on the +tate and its officers. 6he law always frowns on uncanalised and unfettered discretion on any instrumentality of the +tate and it is the &lory of administrati e law that such discretion has been throu&h judicial decisions structured and re&ulated3-10.. Howe er, 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 pro isions of 'rt. 1! of the /onstitution would be attracted. (ut, when a statute confers a wide power on a statutory authority, a closer scrutiny would be re*uired-11.. 6he +ection 200;l< of the Cotor Jehicles 'ct, 1G## &i es discretionary power to the authorised officer to compound certain offences under the 'ct, if the accused is willin&, by char&in& a compoundin& fee. lt was contended that this power was un&uided, uncanalised and arbitrary. 6he 'pe, /ourt 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 willin&ness of the accused and mi&ht be done e en before institution of the prosecution case. (esides, +ection 1G! of the 'ct which is the penal and char&in& section prescribes the ma,imum outer limit within which the compoundin& fee would be prescribed and so lon& as the compoundin& fee did not e,ceed the fine prescribed by the penal section, the same could not be declared to be either e,orbitant or irrational or bereft of &uidance-12..

0ne &reat ad anta&e of ha in& a statement of a standard or policy in the statute is to enable the courts to assess whether a specific administrati e action is in conformity with this standard or policy. 6his purpose can be achie ed effecti ely only if the courts insist that the le&islature e,presses its policy or standards clearly and in such terms as would help the courts to 5eep the e,ercise of discretion within the four corners of the le&islati e policy. At may not be out of place to mention here that in the 4undamental Fi&hts there e,ists a source of judicial power which, if fully e,ploited, can &o a lon& way in miti&atin& the dan&ers of too much administrati e discretion7a de elopment which is causin& a &ood deal of an,iety to thin5in& people in many democratic countries. 4undamental Fi&hts are real and not notional8 they are substantial and not fictional, and they should be treated by the courts as such. 4ortunately, the Andian /onstitution incorporates within itself se eral chec5s and balances and it depends upon us how we use them. At would lead to better democratic ideals and traditions if we fully e,ploit the e,pedients which the /onstitution has placed at our disposal for controllin& administrati e action and 5eepin& it within proper bounds. An a welfare state, a balance has toK be drawn between public power and indi idual freedom, and it is for the courts to ensure that this balance is not tilted too much in fa our of the 'dministration as a&ainst the indi idual. JUDICIAL REVIEW )Judicial Fe iew% may be defined as a 3court%s power to re iew the actions of other branches of the &o ernment, especially the court%s power to in alidate le&islati e and e,ecuti e actions as bein& unconstitutional3-13.. Judicial re iew in Andia deals with three major aspects8 ;i< ;ii< ;iii< Judicial re iew of le&islati e action. Judicial re iew of judicial decision. Judicial re iew of administrati e action.

Judicial re iew of administrati e action is perhaps the most important de elopment in the field of public law in the second half of this century. An Andia, the doctrine of judicial re iew is the basic feature of our /onstitution. Judicial re iew 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[14]. 6he +upreme /ourt and Hi&h /ourts are the ultimate interpreters of the /onstitution. At is, therefore, their duty to find out the e,tent and limits of the power of coordinate branches, iB. e,ecuti e and le&islature and to see that they do not trans&ress their limits. 6his is indeed a delicate tas5 assi&ned to the judiciary by the /onstitution. 6he object of judicial re iew is to ensure that the authority does not abuse its power and the indi idual recei es just and fair treatment and not to ensure that the authority reaches a conclusion which is correct in the eyes of law-1>..
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JUDICIAL REVIEW AND ADMINISTRATIVE DISCRETION $iscretionary powers conferred on the administration are of different types. 6hey may ran&e from simple ministerial functions li5e maintenance of births and deaths re&ister to powers which seriously affect the ri&hts of an indi idual, e.&. ac*uisition of property, re&ulation of trade, industry or business, in esti&ation, seiBure, confiscation and destruction of property, detention of a person on subjecti e satisfaction of an e,ecuti e authority and the li5e. 's a &eneral rule, it is accepted that courts ha e no power to interfere with the actions ta5en by administrati e authorities in e,ercise of discretionary powers. An Small . Moss[16], the +upreme /ourt of the ?nited +tates obser ed: 3Anto that field ;of administrati e discretion< the courts may not enter.3 Dord Halsbury-1E. also e,pressed the same iew and obser ed: 3:here the le&islature 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 discretion3. An the leadin& case of Roberts . Hopwood[18], the /ourt stated8 36here are many matters, which the courts are indisposed to *uestion. 6hou&h they are the ultimate jud&es of what is lawful and what is unlawful to borou&h councils, they often accept the decisions of the local authority simply because they are themsel es ill e*uipped to wei&h the merits of one solution of a practical *uestion as a&ainst another.3 An Andia also, the same principle is accepted and in a number of cases, the +upreme /ourt has held that courts ha e no power to interfere with the orders passed by the administrati e authorities in e,ercise of discretionary powers-1G.. 6his does not, howe er, mean that there is no control o er the discretion of the administration. 's indicated abo e, the administration possesses ast discretionary powers and if complete and absolute freedom is &i en to it, it will lead to arbitrary e,ercise of power. 6he wider the discretion the &reater is the possibility of its abuse. 's it is ri&htly said, )e ery power tends to corrupt and absolute power tends to corrupt absolutely%. 'll powers ha e le&al limits. 6he wider the power, the &reater the need for the restraint in its e,ercise. 6here must be control o er discretionary powers of the administration so that there will be a )Io ernment of laws and not of men%. At 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 e,ercise them properly, responsibly and with a iew to doin& what is best in the public interest. )At is from this presumption that the courts ta5e their warrant to impose le&al bounds on e en the most e,tensi e discretion3-20.. :ide discretion must be in all administrati e acti ity but it should be discretion defined in terms which can be measured by le&al standards lest cases of manifest injustice &o unheeded and unpunished%.
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6here is nothin& li5e unfettered discretion immune from judicial re iewability. 6he truth is that in a Io ernment under law, there can be no such thin& as unre iewable discretion-21.. 6he law always frowns on uncanalised and unfettered discretion conferred on any instrumentality of the +tate and it is the &lory of administrati e law that such direction has been throu&h judicial decisions structured and re&ulated-22.. At is true that abuse of power is not to be assumed li&htly but, e,perience belies the e,pectation that discretionary powers are always e,ercised fairly and objecti ely. 6he basic rule should be that the &o ernin& power where er located must be subject to fundamental constitutional limitations. 6hus, in almost all the democratic countries it is accepted that disretion conferred on the administration is not unfettered, uncontrolled or non-re iewable by the courts. 6o 5eep the administration within its bounds, the courts ha e e ol ed certain principles and imposed some conditions and formulated certain tests and ta5in& recourse to these principles, they effecti ely control the abuse or arbitrary e,ercise of discretionary power by the administration. An Andia, where in a written /onstitution the power of judicial re iew has been accepted as the )heart and core% of it and which is treated as the )basic and essential feature of the /onstitution% and )the safest possible safe&uard% a&ainst abuse of power by any administrati e authority, the judiciary cannot be depri ed of the said power-23.. ABUSE OF DISCRETION 6here are arious restrictions on discretion, such as one should not act in bad faith. 9o discrimination could be made while e,ercisin& discretion between persons on the basis of irrele ant criteria. $iscretion once conferred cannot be restricted or fettered. :hen the discretion is conferred by statute, the authority cannot refuse to e,ercise discretion. :hile e,ercisin& discretion the authority has to maintain independence and impartiality. 6he authority upon whom discretionary power has been conferred cannot act at the dictates of hi&her and other authority. :hen the discretion is conferred upon the authority it is that authority who has to e,ercise discretion by its own mind and after ta5in& into consideration of all rele ant factors 5eepin& in iew the object of conferrin& such a discretion. At should not be influenced by improper moti e or improper purpose. 'nother aspect of the matter is that the decision ma5ers must not allow their personal interest and beliefs to influence them in the e,ercise of their statutory powers, but must e,ercise those powers impartially and should not pre- jud&e the case. 6he decision ma5ers should not ma5e up their mind so stron&ly in ad ance that they cannot be influenced to decide another way at the hearin&. 6hey should not hold predetermined iews of the issues that would be applied re&ardless of the merit of the case-2!.. Cany administrati e decisions in ol e an element of discretion. +omeone must be &i en the responsibility of applyin& the law to each situation as it arises. $icey states that it is used to be thou&ht to be classical doctrine that wide discretionary power was incompatible to the rule of law, for what the rule of law re*uires is not that wide discretionary power would be totally absent but the law should be able to control its e,ercise so that there may not be any abuse of discretion. At is well settled that all power has its le&al limits and that the /ourt should draw those limits in a way which stri5es the most suitable balance between e,ecuti e efficiency and le&al protection of the citiBens. 9owadays @arliament calls for
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more and more powers upon the e,ecuti e which on their face mi&ht appear to be absolute and arbitrary. 6he /ourt cannot reco&niBe or accept the e,istence of any arbitrary power and unfettered discretion. 6he /ourt laid down the principle which re*uires the statutory power as to be e,ercised reasonably and in &ood faith and for proper and authorised purpose only and that too in accordance with the spirit as well as letter of the empowerin& 'ct. 6he e,ercise of discretion in ol es choice from amon& options. At is also e*ually well settled that discretion is not absolute or unfettered and the decision ma5ers cannot simply do as they please. 'll discretionary powers must be e,ercised within certain basic parameters. 6he primary rule is that discretion should be used to promote the policies and objects of the &o ernin& 'ct. ' discretionary power should not be used to achie e a purpose not contemplated by the 'ct that confers the power. 'll decision ma5ers are e,pected to act in &ood faith. @owers must not be abused and should not be e,ercised arbitrarily or dishonestly-2>.. MALA FIDE Ieneral 2 ery power must be e,ercised by the authority reasonably and lawful8 Howe er, it is ri&htly said, 3e ery power tends to corrupt and absolute power corrupts absolutely3. At is, therefore, not only the power but the duty of the courts8 to see that all authorities e,ercise their powers properly, lawfully and in &ood faith. Af the power is not e,ercised bona fide, the e,ercise of power is bad and is action ille&al. $efinition 6hou&h precise and scientific definition of the e,pression 3mala fide3 is not possible, it means ill 7will, dishonest intention or corrupt moti e. ' power may be e,ercised maliciously, out of personal animosity, ill-will or en&eance it fraudulently and with intent to achie e an object forei&n to the statute-2".. 6ypes 4rom the abo e definition, it can be said that malice is of two types: ;1< e,press malice or 3malice in fact3, and ;2< implied or le&al malice or 3malice 8 law3. Cala fides iolatin& proceedin&s may be factual or le&al. 4ormer is actuated by e,traneous considerations whereas the latter arises where a public authority acts deliberately in defiance of law, may be without malicious intention or improper moti e. An other words, a plea of mala fide in ol es two *uestions8 ;i< whether there is a personal bias or obli*ue moti e and ;ii< whether the administrati e action is contrary to the objects, re*uirements and conditions of a alid e,ercise of power-2E.. ;'< Calice in fact L 8

:hen an administrati e action is ta5en out of personal animosity, ill-will8. en&eance or dishonest intention, there is )malice in fact% and the action necessarily re*uires to be struc5 down and *uashed. 6hus, in Pratap Singh v. State of Punjab[28], the petitioner was a ci il sur&eon and he had ta5en lea e preparatory to retirement. Anitially the lea e was &ranted, but subse*uently it was re o5ed. He was placed under suspension, a departmental in*uiry was instituted a&ainst him and, ultimately, he was remo ed from ser ice. 6he petitioner alle&ed that the disciplinary proceedin&s had been instituted a&ainst him at the instance of the then /hief Cinister to wrea5 personal en&eance on him as he had not yielded to the ille&al demands of the former. 6he +upreme /ourt accepted the contention, held the e,ercise of power to be mala fide and *uashed the order. An .P. Ro!appa v. State of "#[29]. a member of Andian 'dministrati e +er ice was appointed as the /hief +ecretary to Io emment. 6he Io ernment shifted him to a newly created temporary post of 0fficer on +pecial $uty. 6he petitioner challen&ed the action as mala fide and malicious on the part of the /hief Cinister, Io ernor and /abinet Cinisters. 0bser in& that the alle&ations of mala fide le elled by the petitioner a&ainst the /hief Cinister were )baseless%, the +upreme /ourt dismissed the petition. An Shivajirao Patil . Mahesh Madhav[30] , in a writ petition, it was alle&ed that alterin& and tamperin& with the mar5-sheet had been done in fa our of ', dau&hter of the then /hief Cinister of Caharashtra at C.$. 2,amination at the behest of the /hief Cinister. 6hou&h there was no direct e idence about the fact, from arious circumstances, the court held that such alteration had been made by the person conductin& the e,amination at the behest of the then /hief Cinister. Cu5harji, J. ;as he then was< ri&htly obser ed: 36his court cannot be obli ious that there has been a steady decline of public standards or public morals and public morale. At is necessary to cleanse public life in this country alon& with or e en before cleanin& the physical atmosphere. 6he pollution in our alues and standards is an e*ually &ra e menace as the pollution of the en ironment. :here such situations cry out the courts should not and cannot remain mute and dumb.3 0n the other hand, in State of Har!ana . $hajan %al[31], a complaint re&ardin& corruption was filed a&ainst the former /hief Cinister. 6he Hi&h /ourt under 'rticle 22" of the /onstitution *uashed the proceedin&s inter alia obser in& that they were initiated due to political endetta and were tainted with personal mala fides. 6he +upreme /ourt *uashed the order of the Hi&h /ourt. ;(< Calice in law :

:hen an action is ta5en or power is e,ercised without just or reasonable cause or for purpose forei&n to the statute, the e,ercise of power would be bad and the action ultra ires. )Calice in law% is different from )malice in fact% and may be assumed from the doin& of a wron&ful act intentionally without just cause or e,cuse, or for want of care. 6hus, if a local authority were to use its power to erect urinals )in front of any &entleman%s house%, it would be impossible to hold it to be bona fide e,ercise of power.
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An Municipal &ouncil of S!dne! . &ampbell[32], under the rele ant statute the /ouncil was empowered to ac*uire land for 3carryin& out impro ements in or remodellin& any portion of the city3. 6he /ouncil ac*uired the disputed land for e,pandin& a street. (ut in fact the object was to &et the benefit of probable increase in the alue of land as a result of the proposed e,tension of the hi&hway. 9o plan for impro in& or remodellin& was proposed or considered by the /ouncil. At was held that the power was e,ercised with ulterior object and hence it was ultra ires. An State of Punjab . 'urdial Singh[33], land of the petitioner was ac*uired under the Dand 'c*uisition 'ct for construction of mar5et ;mandi<. At was alle&ed that the action was mala fide and was a result of influence wielded by the Cinister who was interested in &ettin& other land released. 6he Cinister did not deny the alle&ations. 6he +upreme /ourt *uashed the proceedin&s holdin& them to be mala fide. 6he /ourt said8 39ot that this land is needed for the mandi in the jud&ement of the Io ernment, but that the mandi need is hijac5ed to reach the pri ate destination of depri in& an enemy of his land throu&h bac5-seat dri in& of statutory en&ine.3 An (jit )umar #ag . *ndian +il &orpn[34]. Dtd., a +enior 0fficer of the /orporation assaulted the /hief Cedical 0fficer of a hospital and caused se eral injuries. He was, therefore, dismissed from ser ice in accordance with +er ice Fules without holdin& injury. 6he action was challen&ed inter alia on the &round if mala fide e,ercise of power. 9e&ati in& the contention, the +upreme /ourt noted that &ra e and serious situation was created by the appellant himself and he was ri&htly dismissed. 6est 6wo important factors will throw considerable li&ht in determinin& whether 8 decision is mala fide or moti ated by improper considerations8 ;i< first relates to the manner or method of reachin& the decision8 and ;ii< second to the circumstances in which the decision is ta5en and the considerations which ha e entered into in reachin& that decision. At is difficult to establish mala fide in a strai&ht7cut manner. An appropriate cases, the court may draw an inference of mala fide action from pleadin&s and antecedent circumstances. +uch inference must be based on foundation of facts, pleaded and pro ed. 'n inference of mala fide cannot be drawn on insinuation and a&ue alle&ations-3>.. (urden of proof 6he burden of pro in& mala fide is on the person ma5in& the alle&ations, and the burden is ) ery hea y%-3".. 9either e,press nor implied malice can be inferred or assumed. At is for the person see5in& to in alidate an order to establish the char&e of bad faith. 6he reason is simple and ob ious. 6here is resumption in fa our of the administration that it always e,ercises its power bona fide and in &ood faith. At is to be remembered that the alle&ations of mala fide are often more easily made than made out, and the ery seriousness of such alle&ations demands proof of a hi&h order of credibility. At is the last refu&e of a losin& liti&ant. @arty respondent

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:here personal mala fides or )malice in fact% is imputed a&ainst any person, he should be impleaded eo nomine as party respondent and should be afforded an opportunity to meet with alle&ations of mala fide. An his absence, the court will not en*uire into the alle&ations le elled by the petitioner. 6he reason is ery simple. @rinciples of natural justice re*uire that no person should be condemned unheard. 9ow if alle&ations ha e been made a&ainst a person who is not made a party to the proceedin&s and the court proceeds to consider them, natural justice is iolated.At is, howe er, not necessary to ma5e alle&ations a&ainst a named official-3E.. /ounter affida it :hen definite alle&ations ha e been made and necessary and sufficient particulars in support of such alle&ations ha e been furnished by the petitioner in the petition, it is obli&atory on the part of the respondent to deal with them by filin& a counter7affida it. An the absence of a denial affida it by the person a&ainst whom such alle&ations are made, the court may accept those alle&ations as correct on the test of probability.#" At is, howe er, not necessary that in each and e ery case when alle&ations ha e been made that a counter refutin& such alle&ations must be filed. 6he petitioner has to prima facie satisfy the court that there is substance in the alle&ations. Ja&ue, wild and casual alle&ations are not enou&h. 6hus, in Hem %all . State of Sikkim[38], an 'd ocate was detained under the 9ational +ecurity 'ct, 1G#0 ;9+'<. He alle&ed that the /hief Cinister wanted him to join politics. (ut as he refused to do so, he was detained. 9o material whatsoe er was placed on record to substantiate the alle&ations. 6he +upreme /ourt held that the counter affida it of the /hief Cinister was not necessary. +ummary dismissal :hen serious alle&ations of mala fides ha e been made by the petitioner in the petition, the court may not dismiss the petition in limine without issuin& notice to the respondent. 9o doubt the court would be justified in refusin& to carry out in esti&ation by ma5in& a ro in& in*uiry if sufficient particulars ma5in& out a prima facie case are not included in the petition. (ut the court must consider the totality of the circumstances and not each alle&ation indi idually and independently for decidin& whether the impu&ned action is mala fide-3G.. @ower and $uty of courts :here alle&ations of mala fides ;factual or le&al< ha e been le elled a&ainst an authority or an officer, who has passed an order or ta5en an action, the court must consider those alle&ations, materials placed on record in support of such De&ations and the order or action impu&ned. 2 ery action of a public authority should be informed by reason and it must re bona fide. 6he power to act in discretion is not a power to act ad arbitrarium. :here 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 &rant relief to the a&&rie ed party-!0.. :hile dealin& with alle&ations a&ainst Io ernment, constitutional functionaries or hi&h-ran5in& officials, a court must start with presumption of mala fide e,ercise of power. (ut if it is
11

con inced that there is misuse or abuse of power or administration has acted )with an e il eye and an une en hand%, it should not hesitate in dealin& with a situation )with a hea y hand%-!1.. De&islati e power and mala fides At is well7established that an e,ecuti e action can be challen&ed on the &round of mala fide e,ercise of power. ' *uestion may, howe er, arise: whether pure le&islati e or *uasi-le&islati e act can be challen&ed on such &round= 6he decisions of the +upreme /ourt are not uniform on that point. An some cases, it was held that le&islati e action can be impu&ned on the &round of malice in law, whereas in other cases, a contrary iew has been ta5en. At is submitted that the former iew is correct and is in consonance with the doctrine of judicial re iew which is the basic structure of the constitution-!2.. MIXED CONSIDERATIONS Ieneral +ometimes, a peculiar situation arises. Here the order is not wholly based on Me,traneous or irrele ant considerations. At is based partly on rele ant and e,istent considerations and partly on irrele ant or non-e,istent considerations. /lea a&e of 0pinion 6here is no uniformity in judicial pronouncements on this point. An some cases, it was held that the proceedin&s were itiated, while in other cases, it was held that the proceedin&s were not held to be bad-!3.. At is submitted that the proper approach is to consider it in two different situations: ;a< ;b< /onclusions based on subjecti e satisfaction8 and /onclusions based on objecti e facts.

/onclusion based on subjecti e satisfaction Af the matter re*uires purely subjecti e satisfaction8 e.&. detention matters, a strict iew is called for, and if the order of detention is based on rele ant and irrele ant considerations, it has to be *uashed. 6he reason is ery simple and ob ious. At is ery difficult for the court to say as to what e,tent the irrele ant ;or none,istent< &rounds ha e operated on the mind of the detainin& authority and whether it would ha e passed the same order e en without those irrele ant or num e,istent &rounds. An ,warka ,as . State of J-)[44], settin& aside the order of the detention which was based on rele ant and irrele ant &rounds, the +upreme /ourt obser ed: 3:here power is ested in a statutory authority to depri e the liberty of a subject 7on its subjecti e satisfaction with reference to specified matters, if that satisfaction is stated to be based on a number of &rounds or for a ariety of reasons, all ta5en to&ether and if some out of them are found to be none,istent or irrele ant, the ery e,ercise of that power is bad. 6hat is so because the matter bein& one for
12

subjecti e satisfaction, it must be properly based on all the reasons on which it purports to be based. Af some out of them are found to be non- e,istent or irrele ant, the court cannot predicate what the subjecti e satisfaction of the said authority would ha e been on the e,clusion of those &rounds or reasons. 6o uphold the alidity of such an order in spite of the in alidity of some 0f the reasons or &rounds would be to substitute the objecti e standards 0f the court for the subjecti e satisfaction of the statutory authority.3 (ut the /ourt further stated: 3An applyin& these principles, howe er, the /ourt must be satisfied that the a&ue or irrele ant &rounds are such as, if e,cluded, mi&ht reasonably ha e affected the subjecti e satisfaction of the appropriate authority. At is not merely because some &round or reason of a comparati ely unessential nature is defecti e that such an order based on subjecti e satisfaction can be held to be in alid. 6he court while an,ious to safe&uard the personal liberty of the indi idual will not li&htly interfere with such orders. At is in the li&ht of these principles that the alidity of the impu&ned order has to be jud&ed.3 At is respectfully submitted that these obser ations are unnecessary and ery wide and do not lay down the correct law. 6hey lea e the courts to speculate. Af the order is based on subjecti e satisfaction and if it is not permissible for the court ;as the court itself conceded< )to substitute the objecti e standards of the court for the subjecti e satisfaction of the statutory authority% one fails to see how the objecti e standard can be applied= At is therefore, submitted that in detention matters, the orders must necessarily be *uashed if they are based on mi,ed considerations. +ometimes, the De&islature itself pro ides that inspite of mi,ed considerations or rele ant as well as irrele ant &rounds, an order of detention shall be treated as le&al and alid. 4or instance, +ection >-' of the 9ational +ecurity 'ct, 1G#0 enacts that when an order of detention is made on two or more &rounds, it shall be deemed to ha e been made separately on each &round and it will not be deemed to be in alid or inoperati e merely because one or more of the &rounds is or are non- e,istent, a&ue or irrele ant. +uch pro isions are held to be constitutional-!>.. /onclusion based on objecti e facts Af the conclusion of the authority is based on objecti e facts and the action is based on rele ant and irrele ant considerations the court may apply the objecti e standard and decide the alidity or otherwise of the impu&ned action. An ,hirajlal . &*"[46] the *uestion was whether the appellant was liable to assessment. 6he tribunal, relyin& on rele ant as well as irrele ant material, held him liable. 6he appellant approached the +upreme /ourt was )conceded% by the Io ernment that the action was ta5en on rele ant as also irrele ant considerations. (ut it was contended that rele ant material was sufficient to uphold the order. Fejectin& the contention, the /ourt said8 3An our opinion, this contention is not well founded. At is well established that when a /ourt of fact acts on material, partly rele ant and partly irrele ant, it is impossible to say to what e,tent the mind of the /ourt was affected by the irrele ant material used by it in arri in& at its findin&. +uch a findin& is

13

itiated. At is submitted that the court was not ri&ht nor the proposition of law )well- established% in cases of conclusions on objecti e facts. An State of +rissa . $id!abhushan Mahapatra[47], ' was dismissed from ser ice on certain char&es. 6he Hi&h /ourt found that some of them were not pro ed and, therefore, directed the Io ernment to consider the case whether on the basis of the remainin& char&es the punishment of dismissal was called for. 0n appeal, the +upreme /ourt re ersed the jud&ment of the Hi&h /ourt and upheld the order of dismissal. 'ccordin& to the +upreme /ourt, if the order could be supported on any of the &rounds, it was not for the court to consider whether on that &round alone the punishment of dismissal can be sustained. +hah, J. ;as he then was< ri&htly obser ed: 3Af the order may be supported on any findin& as to substantial misdemeanour for which the punishment can lawfully be imposed, it is not for the court to consider whether that &round alone would ha e wei&hed with the authority in dismissin& the public ser ant. 6he court has no jurisdiction if the findin&s of the in*uiry officer or the 6ribunal prima facie ma5e out a case of misdemeanor, to direct the authority to reconsider the order because in respect of some of the findin&s but not all it appears that there had been iolation of rules of natural justice. An .ora Singh . J.M."andon[48] the /ourt proceeded to lay down principle thus8 36he principle that if some of the reasons relied on by a 6ribunal for its conclusion turn out to be e,traneous or otherwise unsustainable, its decision would be itiated, applies to cases in which the conclusion is arri ed at not on assessment of objecti e facts or e idence, but on subjecti e satisfaction. 6he reason is that whereas in cases where the decision is based on subjecti e satisfaction if some of the reasons turn out to be irrele ant or in alid, it would be impossible for a superior court to find out which of the reasons, rele ant or irrele ant, alid, or in alid, had brou&ht about such satisfaction. (ut in a case where the conclusion is based on objecti e facts and e idence, such a difficulty would not arise. Af it is found that there was le&al e idence before the 6ribunal, e en if some of it was irrele ant, a superior court would not interfere if the findin& can be sustained on the rest of the e idence.3 An State of /.P. . &handra Mohan #igam[49], an order of compulsory retirement passed a&ainst a senior officer of the +tate was challen&ed. At was contended that one of the &rounds on which the order was made was )absolutely none,istent%, and the order was in alid. 6he /ourt, howe er, upheld the order obser in& that the principle &o ernin& order of pre enti e detention would not apply to a case of compulsory retirement and could not be e*uated with an order passed in disciplinary proceedin&s. % /onclusion: /orrect principle 4rom the abo e discussion and case law, it is submitted that there is clear distinction between an order based on )subjecti e satisfaction% and an order based on )objecti e facts%. An the case of former, in absence of le&islati e de ice that where an order is made on two or more &rounds, it should be deemed to ha e been made on each and e ery &round separately, the order would be ille&al and in alid since it is not open and permissible for a court to apply )objecti e standard% to
14

)subjecti e satisfaction% and to substitute its own decision for the decision of the authority. +ubjecti e satisfaction, in such cases, &ets itiated and the order is liable to be set aside. An the case of latter, howe er, the position is different. Here the order is based on )objecti e facts%. 0n the basis of objecti e facts, &rounds, reasons and materials, an action is ta5en. At is, therefore, open to appellate or re isional authority or to a court of law e,ercisin& power of judicial re iew to uphold the order if it can be supported on the &round or &rounds which can be said to be le&ally well-founded, rele ant and &ermane and the authority or court is satisfied that such order could ha e been passed on the basis of pro ed )objecti e facts%. IMPROPER PURPOSES 6he law reports abound with e,amples of the courts stri5in& down discretionary decisions where the discretion has been used for an improper purpose. ' public body with power to construct la atories could not use that power in order to build a subway under a street8 deportation could not be used to achie e 8 e,tradition8 the Home +ecretary could not use his powers to re o5e tele ision license where people had bou&ht a new license early in order to a oid a price increase, a local authority had no power to enter into speculati e financial swap transactions8 and a local authority could not use its power to dispose of land to promote the electoral ad anta&e of the dominant party on the council->0.. 6he courts will determine the purpose of a particular statute as a matter of construction, and it is interestin& what influences judicial thin5in& in this respect. :hile the courts continue to insist that they are only 5eepin& the authority within the boundaries of its power and not substitutin& their iew, the di idin& line can be a fine one. 4or e,ample, plannin& authorities may &rant plannin& permission unconditionally, or subject to such conditions as they thin5 fit. ' number of cases ha e turned on the le&ality of such conditions. 6he &eneral position adopted has been that the conditions must fairly and reasonably relate to the permitted de elopment. An applyin& this test the courts ha e upheld fairly broad conditions, but they ha e also struc5 down a number by usin& concepts that are open to debate. 6hus, the court held to be in alid conditions attached to the &rant of a cara an site license which re*uired, inter alia, site rents to be a&reed with council and security of tenure to be pro ided for cara an owners. An the leadin& 'merican case of #ader . $ork[51], by re o5in& a re&ulation, /o,, :ater&ate +pecial @rosecutor was relie ed by the 'ttorney-Ieneral by abolishin& that office. Howe er, within few days, once a&ain, the re&ulation was reinforced. 6he court held the re ocation ille&al since 3it was simply a ruse to permit the dischar&e of /o,, a purpose that could ne er be le&ally accomplished with the ori&inal re&ulation in effect3. An $angalore Medical "rust . Muddappa[52], a piece of land earmar5ed for a public par5 was allotted at the instance of the then /hief Cinister to a pri ate trust for construction of nursin& home. At was contended that the action was ta5en in public interest and the local authority would &et income. 6he +upreme court howe er, held that the 3e,ercise of power was contrary to the purpose for which it was conferred under the statute3. An 0orward &onstruction &o. . Prabhat Mandall[53], a plot was reser ed for a bus depot under the $e elopment @lan. ' substantial portion of the plot was utilised for the bus depot whereas a
15

part thereof was allowed to be used for commercial purpose. 6he +upreme /ourt, 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 ac*uired. ACTING WITHOUT JURISDICTION At is well-settled that there can be no e,ercise of power unless such power e,ists in law. Af the power does not e,ist, the purported e,ercise of power would be none,istent and oid. Di5ewise, where the source of power e,ists, e,ercise of it is referable only to that source and not to some other source. (ut if a source of power e,ists, mention of wron& pro ision or e en omission to mention the pro ision containin& such power will not in alidate such order->!.. An R. . Minister of "ransport[55], e en thou&h the Cinister had no power to re o5e the license , he passed an order of re ocation. 6he action was held ultra ires and without jurisdiction. +imilarly, if the appropriate &o ernment has power to refer an 3industrial dispute3 to a tribunal for adjudication, it cannot refer a dispute which is not an industrial dispute. '&ain, if a ta,in& authority imposes ta, on a commodity e,empted under the 'ct, the action is without authority of law An State of 'ujarat . Patil Raghav #atha[56], the re isional authority e,ercisin& powers under the Dand Fe enue /ode went into the *uestion of title. 6he +upreme /ourt obser ed that when the title of the occupant was in dispute, the appropriate course would be to direct the parties to approach the ci il court and not to decide the *uestion. An (hmedabad St. 1avier's &allege Societ! . State of 'ujarat[57], the +upreme /ourt ruled that the ?ni ersity had no power to compel a minority institute to adopt a particular medium of instruction in education. An 'ovt. of (.P. . MJ" )han[58], two con icts by competent courts of the +tate of C.@. and Caharashtra were transferred to the +tate of 'ndhra @radesh. 6he Io ernor of 'ndhra @radesh &ranted remission to them. 6he action was held in e,cess of jurisdiction since the Io ernment of 'ndhra @radesh was not an )appropriate Io ernment%. EXCEEDING JURISDICTION 'n administrati e authority must e,ercise the power within the limits of the statute and if it e,ceeds those limits, the action will be held ultra ires. ' *uestion whether the authority acted within the limits of its power or e,ceeded it can always be decided by a court. 4or e,ample, if an officer is empowered to &rant a loan of Fs 10,000 in his discretion for a particular purpose and if he &rants a loan of Fs 20,000, he e,ceeds his power ;jurisdiction< and the entire order is ultra ires and oid on that &round. An %ondon &ount! &ouncil . (ttorne! 'eneral[59], the local authority was empowered to operate tramways. 6he local authority also carried on a bus ser ice. 'n injunction a&ainst the operation of buses by the /ouncil was duly &ranted.

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+imilarly, in (.'. . 0ulham &orpn.-"0., the local authority was empowered by the statute to run municipal baths and wash-houses. 'n action of openin& a public laundry by the corporation was held ultra ires. Af the authority is empowered to award a claim for the medical aid of the employees, it cannot &rant the said benefit to the family members of the employees. Di5ewise, if the rele ant re&ulation empowers the mana&ement to dismiss a teacher, the power cannot be e,ercised to dismiss the principal. '&ain, if the (ar /ouncil of Andia frames a rule prescribin& pre enrolment trainin& and apprenticeship for fresh law &raduates see5in& enrolment as ad ocates and such rule is beyond the power or authority of the (ar /ouncil, it must be declared ultra ires. ' *uestion whether the authority has acted within the limits of law or has e,ceeded its jurisdiction depends upon the facts and circumstances of each case and should be decided 5eepin& in iew the pro isions of the 'ct and conferment of power on the authority. ARBITRARY ACTION Af the action complained of is arbitrary, discriminatory, irrational, unreasonable or per erse, it can be set aside in e,ercise of power of judicial re iew. An the well 5nown case of S.'. Jaisinghani . /nion of *ndia[61], the 'pe, /ourt obser ed that absence of arbitrary power is the first essential of Fule of Daw upon which our whole constitutional system is based. An a system &o erned by Fule of Daw, discretion, when conferred on e,ecuti e authorities, must be confined within clearly defined limits. Af a decision is ta5en without any principle or pro ision of rule, it cannot be sustained. An Ranjit "hakur . /nion of *ndia[62], con iction and sentence of ri&orous imprisonment for one year added with dismissal from ser ice for disobeyin& an order of a superior military officer to eat food was held &rossly disproportionate and arbitrary. 'n action of en bloc cancellation of petrol pump licenses is arbitrary and unfair. COLOURABLE EXERCISE OF POWER :here a power is e,ercised by the authority ostensibly for the purpose for which it was conferred, but in reality for some other purpose, it is called colourable e,ercise of power. Here, thou&h the statute does not empower the authority to e,ercise the power in a particular manner, the authority e,ercises the power under the )colour% or &uise of le&ality. 6his is also 5nown as fraudulent e,ercise of power. 6he doctrine is based on the principle that an administrati e authority cannot e,ercise power for a purpose not warranted by law. An the leadin& case of Somawanti . State of Punjab[63], interpretin& the pro isions of the Dand 'c*uisition 'ct, 1#G!, the +upreme /ourt obser ed: 3lf the purpose for which the land is bein& ac*uired by the +tate is within the le&islati e competence of the +tate, the declaration of the Io ernment will be final, subject, howe er, to one e,ception. 6hat e,ception is that &3 there is a colourable e,ercise of power the declaration will be open to challen&e at the instance of the a&&rie ed party.3

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An H.,. 2ora . State of Maharashtra[64], the +tate Io ernment re*uisitioned the flat of the petitioner, but in spite of repeated re*uests of the petitioner, it was not dere*uisitioned. $eclarin& the action bad the court obser ed that thou&h the act of re*uisition was of a transitory character, the Io ernment in substance wanted the flat for permanent use, which would be a )fraud upon the statute%. UNREASONABLENESS Ieneral ' discretionary power conferred on an administrati e authority must be e,ercised by that authority reasonably. Af the power is e,ercised unreasonably, here is an abuse of power and the action of the authority will be ultra ires. Ceanin& 6he term )unreasonable% is ambi&uous and may include many thin&s, e.&. irrele ant or e,traneous considerations mi&ht ha e been ta5en into account by the authority or there was improper or collateral purpose or mala fide e,ercise of power by it or there was colourable e,ercise of power by the authority and the action may be set aside by courts. 6he term )unreasonable% may include many thin&s, e.&. irrele ant or e,traneous considerations mi&ht ha e been ta5en into account by the authority or there was improper or collateral purpose or mala fide e,ercise of power by it or there was colourable e,ercise of power by the authority and the action may be set aside by courts. 6hus, the e,pression 3unreasonableness3 co ers a multitude of sins-">.. 6he concept of reasonableness and non arbitrariness per ades the entire constitutional scheme and is a &olden thread which runs throu&h the whole of the fabric of the /onstitution. An the leadin& case of Roberts . Hopwood[66], the local authority was empowered to pay 3such wa&es as it may thin5 fit3. An e,ercise of this power, the authority fi,ed the wa&es at N ! per wee5 to the lowest &rade wor5er in 1G21-22. 6he court held that thou&h discretion was conferred, it was not e,ercised reasonably and the action was bad. 'ccordin& to Dord :renbury, )may thin5 fit% means )may reasonably thin5 fit%. His Dordship obser ed: 3As the erb )thin5% e*ui alent to )reasonably thin53= Cy Dords, to my mind there is no difference in the meanin&, whether the word )reasonably% or )reasonable% is in or out A rest my opinion upon hi&her &rounds. ' person in whom is ested a discretion must e,ercise his discretion upon reasonable &rounds. ' discretion does not empower a man to do what he li5es merely because he is minded to do so 7- he must in the e,ercise of his discretion do not what he li5es but what he ou&ht. An other words, he must, by use of his reason, ascertain and follow the course which reason directs. He must act reasonably.3 An different fields , in different situations and in different conte,ts the meanin& of reasonableness differs and the test of reasonableness in 'dministrati e law is different from Daw of 6orts.

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6he burden of proof lies on the petitioner who challen&es that the authority of the act is unreasonable. CONCLUSION At is clear from the abo e &i en description and case laws that administrati e discretion is li5e a tool or a weapon without which the flawless functionin& of a modern &o ernment is not possible. Judicial re iew is li5e a chec5 on the powers ested upon the administrati e authorities and it helps to curb the misuse of power throu&h wron& means. ?nder the traditional theory, courts of law used to control e,istence and e,tent of prero&ati e power but not the manner of e,ercise thereof. 6hat position was, howe er, considerably modified after the decision in &ouncil of &ivil Service /nions . Minister for the &ivil Service[67], wherein it was emphasised that the re iew ability of discretionary power must depend upon the subject- matter and not upon its source. 6he e,tent and de&ree of judicial re iew and justifiable area may ary from case to case. At is a fundamental principle of law that e ery power must be e,ercised within the four corners of law and within the le&al limits. 2,ercise of administrati e power is not an e,ception to that basic rule. 6he doctrines by which those limits are ascertained and enforced form the ery marrow of administrati e law. ?nfettered discretion cannot e,ist where the rule of law rei&ns. '&ain, all power is capable of abuse, and that the power to pre ent the abuse is the acid test of effecti e judicial re iew. 't the same time, howe er, the power of judicial re iew is not un*ualified or unlimited. Af the courts were to assume jurisdiction to re iew administrati e acts which are )unfair% in their opinion ;on merits<, the courts would assume jurisdiction to do the ery thin& which is to be done by administration. Af judicial re iew were to trespass on the merits of the e,ercise of administrati e power, it would put its own le&itimacy at ris5. $octrine of @roportionality :ith the rapid &rowth of administrati e law and the need and necessity to control possible abuse of discretionary powers by arious administrati e authorities, certain principles are e ol ed by courts. Af an action ta5en by an authority is contrary to law, improper, unreasonable or irrational, a court of law can interfere with such action by e,ercisin& power of judicial re iew. 0ne of such modes of e,ercisin& power is doctrine of proportionality. $octrine of De&itimate 2,pectations 6he doctrine of 3le&itimate e,pectations3 has been recently reco&niBed in the 2n&lish as well as Andian le&al system. At is the latest recruit to a lon& list of concepts fashioned by the courts for the re iew of administrati e actions. 6he doctrine has an important place in the de elopment of law of judicial re iew.

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6hese doctrines help to 5eep a chec5 on the e,ercise of misuse of power and if any action by authority is &rossly inappropriate then the decision shall not be free from judicial immunity. 6hou&h in judicial re iew the court is not concerned with the correctness of the decision but the way in which decision is ta5en, the ery decision ma5in& process in ol es attributin& relati e importance to arious aspects in the case and there these doctrines come into play. 6hese doctrines ha e been de eloped in conte,t of reasonableness to chec5 the usa&e of powers and also to ser e and protect the people by e,ercisin& the principles of natural justice. -1. Sharp . 3akefield, 1#G1 '/ 1E3 -2. ;1>G#< > /o GGb, as cited by :ade O 4orsyth, (dministrative %aw,;0,ford ?ni ersity @ress< 6enth 2dition 200G p 2G2. -3. C.@. Jain O +.9. Jain4 Principles of (dministrative law Part 5, ;9a&pur: (utterworths :adhwa< 200# p G00. -!. /+* . )uldeep Singh ;200!< 2 +// >G0 ->. + @ +athe, (dministrative %aw,; 9a&pur: (utterworths :adhwa< 200# p 3#". -". @.@./rai&, (dministrative %aw,;6homson: +weet O Ca,well< 2003 p >22. -E. +.@.+athe, (dministrative %aw, ;9a&pur: De,is 9e,is< 200# p 3##. -#. A.@.Cassey, (dministrative %aw,;Duc5now: 2astern (oo5 /ompany< 200# p E3. -G. :ade O 4orsyth, (dministrative %aw4 ; 0,ford< 200G p 320. -10. Sheo #andan Paswan . State of $ihar 'AF 1G#E +/ #EE -11. Harde! Motor "ransport . State of MP ;200"< # +// "13 -12. P.Ratnakar Rao . State of (.P ;1GG"< > +// 3>G -13. $lacks %aw ,ictionar! ;#th 2dition< at p #"! -1!. R.).Jain . /+* ;1GG3< ! +// 11G -1>. &hief constable . vans, ;1G#2< 3 'll 2F 1!1 -1". ;1G3#< 2EG 9P 2## -1E. 3estminster corp . %ondon - #orth 3estern Railwa! &orp. ;1G0>< '/ !2" ;!2E< -1#. 1G2> '/ >E# ;"0"-0E<
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-1G. (.).'opalan . State of Madras 'AF 1G>0 +/ 2E -20. :ade O 4orsyth, (dministrative %aw,;0,ford ?ni ersity @ress< 6enth 2dition 200G p 2G>. -21. )hudiram ,as . State of 3.$. ;1GE>< 2 +// #1 -22. S.'.Jaisinghani . /+* 'AF 1G"E +/ 1!2E -23. Minerva Mills %td. . /+* ;1G#0< 3 +// "2> -2!. /.1.6a5wani, %ectures on (dministrative %aw ;Duc5now:2astern (oo5 /ompany< 200# p 2GE. -2>. /.1.6a5wani,

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