Need of Judicial review

Functions dischargeable by the administration may either be

ministerial or discretionary. A ministerial function is one where the
relevant law prescribes the duty to be performed by the
concerned authority in certain and specific terms leaving nothing
to the discretion or judgment of the authority. It does not involve
investigation into disputed facts or making of choices. The
authority concerned acts in strict obedience to the law which
imposes on it a simple and definite contd…….
duty in respect of which it has no choice.
Because of the complexity of socioeconomic conditions
which the administration in modern times has to contend with the
range of ministerial functions is very small and that of
discretionary functions much larger.
It is realised that a government having only ministerial duties with
no discretionary functions will be extremely rigid and unworkable
and that, to some extent, officials must be allowed a choice as to
when, how and whether they will act. The reason for this attitude is
that, more often than not, the administration is required to handle
intricate problems which involve investigation of facts, making of
choices and exercise of discretion before deciding upon what
action to take.
Discretion implies power to make a choice between alternative
courses of action. Discretion is the all-pervading phenomenon of
modern age. Discretion is conferred in the area of rule-making or
delegated legislation, e.g., when the statutory formula says that
the government may make rules which it thinks expedient to carry
out the purposes of the Act, in effect, a broad discretion and
choice are being conferred on the government to contd…..
to make rules. The legislature hardly gives any guidance as to
what rules are to be made. Similarly, discretion is conferred on
adjudicatory and administrative authorities on a liberal basis, that
is, the power is given to apply a vague statutory standard from
case to case.
Quite often, the legislature bestows more or less an unqualified or
uncontrolled discretion on the executive. Administrative discretion
may be denoted by such words or phrases as “public interest”,
“Public Purpose”, “prejudicial to public safety or security”,
“satisfaction”, “belief”, “efficient”, “reasonable” etc.
There are at least 4 good reasons for conferring discretion on
administrative authorities:
(1) The present-day problems which the administration is called
upon to deal with are of complex and varying nature and it is
difficult to comprehend them all within the scope of general rules.
(2) Most of the problems are new, practically of the first
impression. Lack of any previous experience to deal with them
does not warrant the adoption of general rules.
(3) It is not always possible to foresee each and every problem
but when a problem arises it must in any case be solved by the
administration in spite of the absence of specific rules applicable
to the situation.
(4) Circumstances differ from case to case so that applying one
rule mechanically to all cases may itself result in injustice.
Though courts in India have developed a few effective
parameters for the proper exercise of discretion it lacks the
activism of the American Courts. Judicial control mechanism of
administrative discretion is exercised at 2 stages:
(i) Control at the stage of delegation of discretion
(ii) Control at the stage of exercise of discretion
The court exercises control over delegation of discretionary
powers to the administration by adjudicating upon the
constitutionality of the law under which such powers are
delegated with reference to the fundamental rights enunciated in
Part-III of the Indian Constitution. Therefore, if the law confers
vague and wide discretionary power on any administrative
authority, it may be declared ultra vires Article 14 and 19 and
other provisions of the Constitution.
In India, unlike the U S there is no Administrative Procedure Act
providing for judicial review on the exercise of administrative
discretion. Therefore, the power of judicial review arises from the
constitutional configuration of Courts. Courts in India have always
held the view that judge-proof discretion is a negation of the rule
of law. Therefore they have developed various
contd…..
formulations to control the exercise of administrative discretion.
These formulations may be conveniently grouped into 2 broad
generalisations:
(i) That the authority is deemed not to have exercised its
discretion at all, or there is failure on its part to exercise
discretion.
(ii) That the authority has not exercised its discretion properly, or
there is an excess or abuse of discretion.
Under this general heading of judicial control, there fall quite a
few specified and separate grounds which are as below-
• Mala fides
• Irrelevant considerations
• Leaving out relevant considerations
• non-application of mind
• non-compliance with procedural requirements