Administrative Discretion and Judicial Review: An analysis

Abstract

1) Introduction
Administrative action serves as a residual category, surrounding decisions that do not fall
strictly within the line of legislation or judicial rulings. It is specific to individual situations
rather than being of general applicability. Unlike judicial proceedings, it is not bound by
formal procedures such as gathering evidence or evaluating arguments. Instead, is guided by
considerations of policy and expediency, relying on subject satisfaction rather than a firm
legal framework. Though administrative actions may affect rights, but do not determine them
in the way that judicial decisions do. But this does not mean that natural justice can be
entirely disregarded once exercising administrative authority. Unless a statute explicitly states
otherwise, basic principles of natural justice must be followed to, with the extent of the
application changing on the circumstances of each case.

The theory of laissez faire has not been followed by the state and the police state has become
the welfare state, of this philosophy the functions of government have increased, the
administrative authorities have become inevitable and acquired the discretionary power,
generally exercising the power that are subjective, without laying any of the guide lines.

At current scenario, even though the administrative law is enacted by the legislature, but the
administrative functions are performed by the executive, also enacts the legislation when the
legislative powers are delegated, it interprets the law through the administrative tribunal, thus
practically the power are in the hands of the Administrative,Legislative, Executive and
Judiciary.

In one of the cases A.K. Kraipak vs union of India 1 the court viewed that in order to
determine the action whether the action of administrative authority is administrative or quasi-
judicial it has the power to see the nature conferred, whether the power belongs to
administrative body or judicial or executive, to whom the power can be given, the structure or
the frame work for which the power can be conferred and the further consequences.

1
AIR 1970 SC 150

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Like wise the judicial review of administrative body is part of action enforcing the disciplined
constitution over the administrative body, the origin of this is from the England where we
have adopted it has the common law countries. Even our country has inherited the idea of
judicial review from the England. Judicial review is the weapon were the arbitrary, unjust
law, harassing and unconstitutional, laws can be checked. For effective administration.

2) Administrative Discretion and Judicial Review Meaning

In layman’s language discretion mean, inherent quality to discern right from wrong and to
arrive decisions based on the reason and not according to personal whims and fancies also
mean an inability to make informed choices.

History of Administrative discretion dates back Greek philosopher Socrates, was the one who
laid the foundation for philosophical ethics, he has devised a criterion that determines the
concept of administrative discretion.

Certain cases which laid the foundation for the administrative discretion and Judicialreview,
have been derived from here are, Rookes case2, State of Bihar vs Subhas Singh3,

In Rookes case it has been described has science or understanding to distinguish between
falseness and truth between right and wrong, between equity and colourable glosses and
facades.

In state of Bihar vs subhas Singh it was held that administrative action and under Article 32
and 226 of the Indian constitution is valid, Judicial review of administrative actions is an
essential part of the rule of law.

Meaning of Judicial review, mean power of the courts of a country to examine the actions of
the legislative, executive, and administrative arms of the government and to determine
whether such actions are consistent with the constitution.4

History of judicial review dates back to chief justice coke judgement in Dr Bonhams
case(1610) common law would control acts of parliament and the court could can declare the
enactment as void if it is against common right and reason.5

2
(1958) 5 co Rep 996
3
AIR 1997 SC 1390
4
https://www.britannica.com/topic/judicial-review
5
https://nja.gov.in/Concluded_Programmes/2018-19/P-1110

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 In one of the case, Minerva Mills ltd vs Union of India 6, it was observed the constitution has
created and independent judiciary which is vested with the power of judicial review of
legislation. It is the solemn duty of the judiciary under the constitution to keep different
organs of the state within the limits of the power.

3) Object of Judicial Review

The main object of the judicial review is to check that the authority does not take the
power in its own hands7 and does not create abuse in its power, Judicial review is one of
most power full and basic requirements for the liberty and rights of citizens it is an
advanced review mechanism for the civilized society. The power of judicial review in
India is vested with High courts and supreme courts of India, it is a power given by the
constitution for the High courts and Supreme courts to review the actions of the branches
of the government which enjoy the individual power. Judicial review is the power of the
courts to check the arbitrariness, constitutionality of legislative and executive acts by the
government. When these are violated, the judicial review plays a prominent and
important rolefor safe guarding the rights of the people.

The court have the widest power of judicial review in India, courts exercise these powers
with self-control, and caution, Article 13 of the constitution provides the provision of
Judicial review, Supreme court in the central and High court at the states have the power
to review the actions of administrative action through the writs like Habeas corpus,
mandamus, certiorari, prohibition, and quo warranto under Article 32 and 226 of the
constitution of India.8

In Minerva mills ltd vs Union of India, 9 the constitution created, independent judiciary
that is vested along with judiciary the power of judicial review to check the legality of
administrative action also the validity of legislation, and any unfair action must be set
right by administrative review.10

6
1981 SC(1)206

7
Chief Constable v Evans [1982] 3 All ER 141
8
Basappa vs. Nagappa, AIR 1954 SC 440 (1951) 1 SCR 250
9
[1980] AIR 1789 (SC
10
Tata Cellular v Union of India [1994] 6 SCC 651

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 4) Nature and scope

Judicial review is the basic feature of the constitution of India, most important
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development in the field of public law, also the weapon for the judiciary for the
maintenance of the law and its rule. The supreme court and high courts enjoy the
enormous power so it is the duty of these courts to look into the limits of the power of the
other branches, the Executive and Legislature, to see they are within their limits and go
with the task assigned to these bodies. Thejudicial review power is an integral part of the
Indian constitution, without these the rule of law would act as independently and become
promise of illusoriness, it is the basic and essential feature of the constitution as well as
the essential part of the constitution, is a vital principle of our constitution, thus ensures
judiciary carrieson its duty in accordance with law.

5) Grounds for Judicial Review

Doctrine of ultra-vires is the basic structure of the administrative law, which is the
foundation for judicial review, during this time the court do not exercise appellate power,
it exercises protection and not a weapon12

The discretionary power exercised in India, is when the courts find arbitrariness,
jurisdictional error, (lack of jurisdiction or excess of jurisdiction), irrationality, procedural
impropriety, proportionality, legitimate expectation, the base for the for the grounds are
some of the following cases,

Council of civil service union vs Minister of civil service13

Associated provincial picture house vs wednesbury14

Ridge vs Baldwin15

11
https://www.jstor.org/stable/43949713
12
https://www.jstor.org/stable/4506501
13
https://www.casemine.com/judgement/uk
14
https://www.casemine.com/judgement/uk/
15
https://www.casemine.com/commentary/uk/

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 Hind Construction Co. vs Workmen16

Regina v. Liverpool corporation exparte Liverpool taxi fleet operators’ association 17

In Associated provincial picture house vs wednesbury the term “Irrationality” was developed
as ground for judicial review, later known as Wednesbury test. In arriving the decision the
defendant took into consideration the factors that ought not to have been taken into, failed to
take into consideration the factors that ought to have been taken into, was so reasonable that,
any reasonable authority would never consider imposing it, court held that it could not
intervene to change the decision of the defendant simply because it disagreed with it..

In Ridge vs Baldwin, that judicial review shows, irrespective of the type of body determining
the matter. In ridge the constable was suspended, as of the charges of conspiracy to obstruct
the course of justice, even the allegations against the ridge was clear the judge commented on
the ridges character, and conduct, were he was dismissed from his post, later was given a
chance to be heard before the committee for dismissing his appeal. Later appealed to house of
lords that the committee had totally violated the rules of natural justice that is without hearing
him. This case was important because of the right of the person to hear, to know the case
which is against him.

Proportionalitymeans the concerned administrative action, should not be more than it

requires, to be, principal of proportionality states that court can necessarily see whether it is
advantages and disadvantages of the action called into unless the administrative action is
seem to be advantageous, in the public interest in this case the action of administrative
discretion can be up held, the doctrine of proportionality aims in ensuring a fair balance
between means used and the ends of justice sought. 18 The Indian courts have been following
the same doctrine of proportionality, for time immemorial, but the court in England been
using since the human rights act 1998 was passed, while testing the proportionality the courts
can exercise the discretionary powers in which there are no relation between, the object and
means for achieving the test, if the decision of administrative action is seem to
disproportionate, or not up to the mark the courts can quash the decision of the administration
decision.19

16
https://supremetoday.ai/doc/judgement/00100012112
17
https://vlex.co.uk/vid/r-v-liverpool-corpn-793038025
18
https://www.lexisnexis.co.uk/legal/glossary/proportionality
19
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1431179

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In one of the case Hind constructions co vs Workmen, the workers of the factory were
dismissed for one day strike, were it was un justified decision, the court ruling was that
workers should not been dismissed from the work but instead they would have been given an
warningbefore removal, as dismissal from the work constitutes unfair practices, held that
dismissal of workmen was misappropriate decision.20

Legitimate Expectation21: The Doctrine of legitimate Expectation imposes on a public

authority to act fairly by taking into consideration all relevant factors relating to such
legitimate expectation. The doctrine is still at a stage of evolution but it has significant body
of case law. It has been judicially recognized, by the supreme court of India, and the
recognition has shoed the way for the development of a broader and more flexible doctrine of
fairness, consequently the ultimate question should always be whether something has gone
wrong to the extent that the courts intervention requires is so of what forma that intervention
should take. In considering whether something has gone wrong, the court has to determine
whether what has happened has resulted in real injustice. If it has the court must intervene in
the appropriate manner in the context, the utility of the doctrine of legitimate exceptions is
manifold.22

23
In Regina v Liverpool corporation ex parte, Liverpool Taxi Fleet Operators Association the
corporation had given undertaking s to the effect that the taxi drivers Licences would not be
revoked without their prior consultation. The corporation acted in the breach of its
undertaking. The court ruled that the taxi drivers had a right to be consulted.

Were to approach for administrative discrimination: In country like India, the administrative
authority has the majority power without proper guide lines, they exercise these discretionary
powers. To control the discretionarypower, we have “rule of law” that exist in government
actions. As per Lord Dyson, there is no principle more basic to our systems of law than the
maintenance of rule of law itself and constitutional protection afforded by the judicial review.

In Indian constitution Article 32 and 226 of the constitution of India has designed for the
enforcement of fundamental rights and for judicial review of administrative actions, in the
form of writs24 it is constitutional remedy available to a person to bring his complaint or
grievance against any administrative action to the notice of the court, the importance of
20
legalauthority.in/judgement/hind-construction-engineering-co-ltd-vs-their-workmen-36576
21
https://www.jstor.org/stable/45456004
22
https://www.researchgate.net/profile/Neethu-
23
https://vlex.co.uk/vid/r-v-liverpool-corpn-793038025
24
Article 32 of the Indian constitution

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remedies generally is reflected in the maxim ubi jus ibiremedium- where there is way there is
a remedy.

6) Limitations of Judicial Review

In India a few fundamental ideas, of doctrine have been followed such has the, Doctrine
of Basic Structure, Separation of powers, and Proportionality, were they serve as the
foundation for judicial review. Yet there are some limitations.

In Keshavanada Bharati case,25 it was said that the Basic structure of the constitution,
forbids the parliament from making or altering the constitution such a way that the
constitution can modify its essential structure. The doctrine of separation of powers gives
the freedom and neutrality for the executive and legislative, as well as judiciary. The
doctrine of proportionality principle is used by courts.Judicial review has numerous
limitations, even though it is a pivotal tool forsafeguard constitutionalrights. In regard to
the functions of the legislature and executive branch, courts must run within definite
bounds.

The prime restriction of the judicial review is.

Constitutional and statutory limitations: Judicial review cannot extend over what is
permitted by theConstitution or particular statutes. Article 13 of the constitution of
Indiarestrict the judicial review of the laws that violate fundamental rights and courts are
not able, intervene with purely political questions.Additionally, the provisions in
legislation can restrict courts from examining specific administrative rulings, particularly
in specialized domains such as taxation or national security. The judiciary often abstains
from adjudicating matters that are more appropriately handled by the political branches of
government. These include issues concerning international relations, defence, and certain
facets of governance.Courts practice judicial restraint by preventing involvement inissues
thatdoesn’t probably involve a violationof rights or constitutional principles. The
approach sees that the judiciary appreciate the roles of the legislative and executive
branches. Judicial control frequently controls to avoid the perception of judicialpower,
where courts are seen as exceeding theirinstruction by making policy decisions.The role
and limitations of judicial review vary across countries. In India, judicial review

25
Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.

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 isconstitutionally guaranteed under Articles 32 and 226, with the Supreme Court and
High Courts playinga central role in reviewing the constitutionality of laws and executive
actions.

7) Distinction Between Administrative discretion and Judicial Review

Administrative review meansthe power which is given for the administrative authority,
were as it contains a certain provision for appeal, revision, or review, is a statutory,
availed by an aggrieved party, when a superior authority decided the matter aggrieved can
exercise such statutory power for grant of appropriate relief.

Judicial review, is neither an appeal nor review of a decision provides for the second
reconsideration, to think, to analyse, to come into conclusion. In India the land and
authority are governed by, the constitution which is also called supreme law of the
country. Were every law is governed and every individual is protected.

Judicial review and administrative discretion under different laws.

There different opinion regarding Administrate discretion and judicial review, the
doctrine has been interpreted in different while interpreting cases.

In Indian law, the most important development in the second half the twentieth centuries,
is the development of judicial review in the administrative action, in the field of public
law.26 It is the basic structure of the constitution of India, were as it cannot be overridden
without affecting the basic structure of the constitution. 27Rule of law is the most
important and ultimate weapon in the hands of judiciary to protect the Rule of law, the
main thing of the rule of law is that the no judge can act as the ultimate power within his
own hands, it is the essential rule and cardinal principle under the constitution and no
one can claim constitution how so they are influential.

In English law the renownedBritish jurist A.V. Dicey, who propounded the doctrine of
rule of law in 1885, in his book The law of constitution, emphasized the supremacy of
law and equality before the law. The rule of law was is in opposition of the discretionary
power and executive and administrative authorities. Were as the government to be the
subject law. Wade as observed the rule of law never imagined the total power and duty of
26
C.K. Takwani, Lectures on Administrative Law (7th edn, Eastern Book Company 2021)
27
S.R. Bommai v Union of India [1994] 3 SCC 1

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 the courts to interfere the discretion, when it satisfied that there are abuse of misuse of
power by the administrative authorities to be exercised, the courts in English proceeded
with basic o f the parliament which give the right on the administrative authority, they
need to exercise these rights lawfully, reasonably and with well established principles of
law. With this whenever it comes before the court that there are case which have
administratively discretions and overrule by the administrative authority, it can be
intervened b the aggrieved party for appropriate remedy.

In American law, judicial review is the power of courts, particularly the supreme court, to
review actions of the legislative and executive branches and determine, if they are
constitutional, serving as a check on government power and upholding the
constitution.this doctrine has been accepted in the US as the doctrine of separation of
power, in the American constitution. The powers vested in legislative congress, executive
powers by the president, the judicial power by the supreme court also the other courts.
The power given to American courts for judicial review, is used for setting aside the
orders passed by any of the jurisdictional administrative authorities, agency if it comes to
the eye of the law that the particular authorities, as made any administrative errors.

In the case of Marbury vs MadisonChief Justice John Marshall understood the tough spot
the court was in. If they ordered Madison to deliver Marbury’s commission, President
Jefferson could just ignore it, since the court had no real way to enforce its decision. But
if they refused to issue the order, it would look like the court was backing down to the
president—and Marshall wasn’t about to let that happen. His solution was nothing short
of genius. In one move, he asserted the Supreme Court’s authority as the final interpreter
of the Constitution, called out the Jefferson administration for not following the law, and
sidestepped a direct confrontation that could have weakened the court’s power28

28
https://www.britannica.com/event/Marbury-v-Madison

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 Conclusion

Administrative discretion and judicial review are two sides of the same coin in the
governance process. On one hand, administrative discretion allows government authorities
and public officials to make decisions based on their expert, experience, and understanding of
the facts. This flexibility is often necessary because not every situation can be predicted or
addressed in advance by the legislature. On the other hand, judicial review acts as a safeguard
to ensure that this discretion is not misused or exercised arbitrarily. Over time, the scope of
administrative discretion has increased significantly, especially with the growth of welfare
states and complex regulations. Officials are now expected to make a wide range of
decisions, from allocating resources to enforcing laws, issuing licenses, or even taking
disciplinary actions. While this makes the administration more efficient and responsive, it
also brings the risk of decisions being influenced by bias, favouritism, or lack of proper
reasoning.

This is where judicial review plays a crucial role. Judicial review is not about replacing
administrative decisions with judicial ones. Instead, it focuses on checking whether the
authority acted within the limits of the law, followed proper procedures, and respected the
rights of individuals. Courts typically don’t interfere with the merits of the decision, but they
do step in when the process has been unfair, irrational, or against public interest. However,
striking the right balance between discretion and review is not always easy. If courts
intervene too much, it may hamper the efficiency and autonomy of administrative bodies. If
they are too lenient, it may lead to unchecked power and corrosion of public trust. Therefore,
both functions need to work together in a healthy balanceadministrators must act responsibly
and transparently, while courts must ensure they do not exceed their legal boundaries. In
India, this balance is particularly important due to the large and diverse population, the scale
of administrative tasks, and the evolving legal framework. Courts have played a significant
role in upholding accountability through doctrines like reasonableness, proportionality, and
natural justice. At the same time, they have also acknowledged the need for administrative
freedom in certain areas that require technical expertise or policy judgments. To conclude,
administrative discretion is necessary for the day-to-day functioning of the state, but it must
be exercised with a sense of responsibility and fairness. Judicial review, as a tool of
constitutional governance, ensures that this power is not misused. Together, they form a

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system of checks and balances that protect the rights of citizens while allowing the
government to function effectively. It is this delicate balance that sustains the trust of people
in both the administration and the judiciary

References

1) https://www.britannica.com

2) https://www.lexisnexis.co.uk/legal/glossary/proportionality

3) https://www.jstor.org/stable/45456004

4) https://www.researchgate.net/

5) https://supremetoday.ai/doc/judgement/

6) https://nja.gov.in/Concluded_Programmes

7) https://www.lawjournals.org/assets
8) https://legalserviceindia.com
9) https://www.mcrhrdi.gov.in

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