Introduction

After the independence of India from the British colonial rule, it was observed that Parliament by itself cannot legislate on each and every facet of certain matters nor can it directly entrust the power to the executive to enforce the same. To fill in these gaps delegation of authority and power became a necessity.

The six decades after independence have played a major role in the rapid expansion and smooth functioning of administrative activities.

The executive is given authority by the statute to use this discretion and act accordingly. An extensive power is given to the executive to choose a path of operation from numerous possible courses of action and select the best depending upon the situation. Power of discretion ensures that the administrative authority has sufficient independence and liberty in carrying out its activities.

However, to regulate the power and to ensure that this discretion is not misused, the law has established scrutiny to make certain that this discretionary power is exercised according to the guidelines of the statute.

Abuse of discretion

Power of discretion given to the administrative authority ensures that they get adequate independence and liberty in carrying out their activities. However, this discretion is often misused. Abuse of power is one of the classic concepts in administrative law. According to the classical approach, this concept is based on the assumption that the scope of discretion of public administration bodies is defined, besides competence norms, procedural and legal grounds for action, also by the objective for which the discretionary powers were granted.[1]

The abuse of discretion is done in the following manner. The administrative authority may not duly exercise the power and authority entrusted to it (sub-delegation, acting mechanically, imposing fetters on discretion, acting under dictation, non-application of mind, power coupled with duty) or they may exercise the power and authority under the coercion of another body, which may have improper motives (like abuse of power, mala fides, improper purpose, irrelevant considerations, leaving out relevant consideration, colourable exercise of power, judicial discretion, unreasonableness). This leads to biases and incorrect usage  of power delegated to such administrative authority.

The power of discretion given to the administrative authorities is a complex process. A Government may not be able to function properly without the exercise of some discretion by the officials. It is impossible to lay down the rules for every plausible aspect. This has led to conflicts as to whether there should be absolute discretion of administrative authorities or whether it should be subject to reasonable control. Giving discretionary power to the administrative authority is not wrong however, people often misuse it.

Some of the abuses of administrative discretion are as follows:

Mala fides

Mala fide is a broad term and means something done with bad intent, corrupt motive, or not in good faith. An administrative action must  be without mala fides. The burden of proof lies on the person who alleges mala fides. Malice is of two kinds i.e. malice in law and malice in fact. Malice in fact includes personal ill will, corrupt motive, spite, vengeance, and personal benefit to the authority itself.

One such situation was seen in S. Pratap Singh v. State of Punjab.[2] In this case, the appellant was a civil surgeon employed under the State Government. He was initially accorded leave in advance of his retirement but in due course of time it was cancelled, also he was given a suspension order and disciplinary action was initiated against him on the charge that he had agreed to receive a bribe of Rs 16 from some patients before going on leave. It was alleged by the appellant that the disciplinary proceedings against him were started in the wake of the personal vendetta of Pratap Singh who was then the Chief Minister of Punjab as the doctor had declined to surrender to the illicit demands of the Chief Minister and members of his family. The Supreme Court accepted the contention, held that such exercise of power is mala fide, and quashed the order.

In G. Sadanandan v. State of Kerela[3], the petitioner was a businessman dealing in the sale of wholesale kerosene oil. He was detained under Rule 30(1)(b) of the Defence of India Rules, 1962 on the ground that he was operating without a licence and dealing in kerosene illegally. The petitioner challenged the validity of the order of detention by and large on the pretext that it is mala fide. It has been passed as a consequence of malevolent and erroneous reports, devised at the order of the Deputy Superintendent of Police (DSP). The alleged reason of the Deputy Superintendent in securing the preparation of these incorrect reports was to get rid of the petitioner from the domain of wholesale kerosene oil business in Trivandrum, Kerala, so that his family members  could obtain the dealership. The Deputy Superintendent did not even file a counter-affidavit to controvert the allegations made against him by the appellant. Due to these considerations, the Supreme Court declared the order of detention to be clearly and plainly mala fide.

Rowjee  v   State   of   Andhra  Pradesh,   the   Chief   Minister undertook a proposal of the State Government to nationalize certain bus routes. The Supreme Court quashed the Chief Minister’s decision. The court found that the Chief Minister had mala fide because the decision was motivated by the Chief Minister sense of vengeance against his political opponents Rowjee  v   State   of   Andhra  Pradesh,   the   Chief   Minister undertook a proposal of the State Government to nationalize certain bus routes. The Supreme Court quashed the Chief Minister’s decision. The court found that the Chief Minister had mala fide because the decision was motivated by the Chief Minister sense of vengeance against his political opponents Rowjee  v   State   of   Andhra  Pradesh,   the   Chief   Minister undertook a proposal of the State Government to nationalize certain bus routes. The Supreme Court quashed the Chief Minister’s decision. The court found that the Chief Minister had mala fide because the decision was motivated by the Chief Minister sense of vengeance against his political opponents

Similarly, in C.S. Rowjee v. State of A.P.[4], the Chief Minister of Andhra Pradesh took on a proposal of the State Government to nationalise certain bus routes. It was purported that the Chief Minister had acted with mala fide intentions while giving the instructions. The allegation against him was that the specific route way had been chosen for the reason that he sought to take revenge from the private operators on those routes because they were his political opponents. Considering the facts of the case, the Supreme Court held that the Chief Minister had mala fide intention.

Rowjee  v   State   of   Andhra  Pradesh,   the   Chief   Minister undertook a proposal of the State Government to nationalize certain bus routes. The Supreme Court quashed the Chief Minister’s decision. The court found that the Chief Minister had mala fide because the decision was motivated by the Chief Minister sense of vengeance against his political opponents Rowjee  v   State   of   Andhra  Pradesh,   the   Chief   Minister undertook a proposal of the State Government to nationalize certain bus routes. The Supreme Court quashed the Chief Minister’s decision. The court found that the Chief Minister had mala fide because the decision was motivated by the Chief Minister sense of vengeance against his political opponents

Improper purpose

A statute confers discretionary powers upon an administrative authority for one purpose and if it is used for some purpose other than the one that was decided, it will not be regarded as a valid exercise of the powers and the same may be rescinded by declaring it as ultra vires. Hence, we can see that the power of discretion is not unlimited and is constricted to the objective for which the law was enacted.

Therefore, where the power is exercised for a purpose different from that specified in the statute, the court will declare the exercise of the power as ultra vires. Where the land is acquired by the Municipal Corporation ostensibly for a public purpose but in fact to enable another body to acquire it through the medium of corporation for some other purpose, the acquisition order would be quashed by the court. Similarly, where the Municipal Corporation refused to approve the construction of buildings with a view to pressurise the petitioner to provide drainage for the adjoining building, and where the construction scheme of the petitioner does not contravene any rule.

“Improper purpose” is broader than mala fides, for whereas the latter denotes a personal spite or malice, the former may have no such element. The action of an authority may be motivated by some public interest (as distinguished from private interest), but it may be different from what is contemplated by the statute under which the action has been taken. Here it is not so much relevant to assess whether the authority is acting in good faith or bad faith. What is relevant is to assess whether the purpose in view is one sanctioned by the statute which confers power on the authority concerned.[5]

However, with time as the authorities were accorded discretion to increase the scope of their functioning, the cases of exercise of this discretion for improper purposes started increasing tremendously. In order to curb this problem and restrict this unconstrained power, the  courts can check the primal target of the statute in endowing the discretionary power. The rationale behind an administrative action should be in conformation with the legal objective.

In S.R. Venkataraman v. Union of India[6], the appellant, was a Central Government officer. She was compulsorily retired from service in “public interest” [under Fundamental Rule 56(j)(i)] on her attaining the age of 50 years. Her contention was that there was non-application of mind by the Government as they did not take into consideration her service record and that her retirement was based on extraneous circumstances, outside the extent of the Act. This was validated from the fact that there was not a thing in her service record to rationalise premature retirement. The Supreme Court revoked the order of the Government and held that in a case where discretionary power is exercised for an unauthorised purpose, the principles of good faith or bad faith stand irrelevant. An administrative order formulated on the basis of non-existent reasons or facts should be deemed to be contaminated with an abuse of power.

Irrelevant or relevant considerations

Discretionary power allows an authority to choose from alternative actions and select the most appropriate one. However, this discretionary power should always be exercised on relevant grounds and not on extraneous grounds, it should not be influenced by considerations that cannot be lawfully taken into account, in other words, all discretionary work must be in conformance to the considerations mentioned in the parent statute. If no such considerations are laid down in the statute, then power is to be exercised on the basis of the considerations relevant to the purpose for which the statute was conferred. If the authority uses this power for irrelevant cases, then the administrative action would be considered ultra vires and will be quashed.

To determine whether the considerations are relevant or irrelevant, one has to infer from the general terms of the statute.

In Barium Chemicals Ltd. v. Company Law Board[7], the Company Law Board exercising its power under Section 237 of the Companies Act, 1956[8] can order an investigation into the matters of the company if such affairs are carried out with a motive to defraud creditors or if the persons involved in the management are guilty of fraud.

Exercising this power an investigation was ordered into the affairs of Barium Chemicals Ltd. for the reason that the company was suffering continuous losses as a consequence of faulty planning and many eminent persons resigning from the Board of Directors. This order was challenged. The court quashed the order of the Board stating that these grounds were immaterial and irrelevant to the objective enshrined in the law. It did not comply with the direction of Section 236[9].

In Rohtas Industries v. S.D. Agarwal[10],  an investigation was ordered into the affairs of a firm on the grounds of misconduct by one of the leading directors. There were several complaints against him. Also shares of another company held by it, were being sold at an inadequate consideration. About the former, the Court was of the view that it was not an admissible situation. About the other ground, the Court found no evidence of the shares having been sold for insufficient remuneration. The order was revoked as these grounds were held to be insubstantial in order to solicit an inquiry under Section 237 of the Companies Act, 1956.

Leaving out relevant considerations

While exercising its discretionary power if an administrative authority turns a blind eye to relevant considerations, its acts will be considered null and void. An authority should always take heed of the considerations which  law lays down expressly or impliedly. In case the law does not lay down any considerations but grants power in a general way, the court might imply some appropriate considerations for the exercise of the power and rescind a directive since the officials concerned did not take these into account.

In Ranjit Singh v. Union of India[11], the allotted quota for production of guns by a licensed manufacturer was lowered from 30 to 10 guns per month. This order was challenged on the ground that the decree was not based on relevant considerations but on immaterial consideration. It was held by the Court that the order was out of place as the Government had not taken into account material considerations like the quality of guns produced, economic viability of the unit, capacity of the factory, etc. in making the order. It was observed by the Court that any curtailment of quota should be based on reason and relevance. If all the material factors are not considered, the decision is corrupt.

Colourable exercise of power

The courts often use the idiom “colourable exercise of power” to denounce an abuse of discretion. Colourable exercise signify that under the “appearance” of power accorded for one objective, the authority is trying to achieve something else which it is not permitted to do under the statute. Such acts  of the  authority shall be null and unlawful.

In Somawanti v. State of Punjab,[12]  the Supreme Court in relation to acquisition of land under the Land Acquisition Act[13] expressed as follows:

Now whether in a particular case the purpose for which land is needed is a public purpose or not is for the State Government to be satisfied about subject to one exception. The exception is that if there is a colourable exercise of power the declaration will be open to challenge at the instance of the aggrieved party. If it appears that what the Government is satisfied about is not a public but a private purpose or no purpose at all action on the Government would be colourable as not being relatable to the power conferred upon it by the Act and its declaration will be a nullity.

The above extract would show that the term “colourable exercise of power” is used in the sense that the exercise of power is unlawful, but it has been given the illusion of legitimacy.

Unreasonableness

                The law requires the authority to act fairly and rationally. The term “unreasonableness” does not provide a separate ground of judicial control  other than the grounds already mentioned. The term also comprises those cases where either the authority has acted in accordance with law but in the wrong manner or in accordance with law and in the right manner but on the wrong grounds. The courts usually do not exercise such extensive power to interfere in the exercise of administrative discretion. However, the courts do interfere with the order where it has been passed  irrationally.

Proportionality

To keep a lid on the exercise of administrative discretion judicial control has been formulated. This assures that unrestricted power is not given to the authorities to allow erratic decision-making. The rule of proportionality is one such major rule which make sure that there is a connection between the goal that must be achieved, and the method undertaken to enable so.

This tool was applied in Union of India v. Ranjit Thakur[14]. In this case Signalman Ranjit Thakur did not adhere to the lawful order of his senior officer by refusing to eat food offered to him. As a result of this court-martial proceedings were instituted and sentence of rigorous imprisonment of one year was levied on him. Also, he was expelled from service, with the additional disqualification that he would be incompetent for future employment. The said direction was called into question on the ground that the penalty was flagrantly inordinate. The Supreme Court implemented the doctrine of proportionality while revoking the punishment of expulsion from employment and sentence of incarceration awarded by the court martial under the Army Act[15].

Conclusion

With more and more discretion being given to the administrative authorities to take action without intervention from other bodies has led to increased independence of the authorities to choose between the different approaches and select the best alternative. However, to keep a check on this wide freedom, the courts in India have developed various controls over discretionary action which ensures that this power is exercised within the limits prescribed by law, is just and fair, and is based on pertinent grounds and good faith.

From the above cases we see that the abuse of administrative discretion takes place in a number of forms, for example, acting on mala fide basis, disregarding relevant considerations and pursuing irrelevant ones, misapprehending the power granted by the statute, etc.

The authorities must have an established extent of liberty to carry out its activities because excessive liberty accorded to the administration will always result in violation of the fundamental rights of an individual. The only method to guarantee individual freedom is judicial review of public administration. Hence, it is a matter of controversy as to what degree the public administration is susceptible to judicial review while performing the tasks assigned.

The work of public administration is to ensure proper execution of the administrative policy whereas the function of the  Administrative Tribunals is to assess whether this execution is exercised correctly under the provisions of law. The separation of these functions limits the scope of judicial review. The scope is limited to the basis of legality and the court’s function to directly rectify the administrative decision is relinquished. This separation of functions does not allow the court to act as a replacement to the administrative bodies.

For the proper exercise of discretion of power,  constructive framework was developed by the courts. The judicial control process of administrative discretion can be done by either establishing control at the stage of delegation of discretion or by establishing control at the stage when the discretion is exercised.

Freedom granted to the administrative authorities to make a decision on certain matters by using their best judgment opposed with the extensive judicial control represents the equilibrium maintained in Indian jurisprudence. On one side of this equilibrium lies unconstrained power and on the other,  judicial supremacy. Mid way is possibly the finest place to be.


*Second year student, BBA LLB, Vivekananda Institute of Professional Studies, New Delhi. Author can be reached at <barkhatandon09@gmail.com.

[1]Jerzy Parchomiuk, Abuse of Discretionary Powers in Administrative Law. Evolution of the Judicial Review Models: from “Administrative Morality” to the Principle of Proportionality, Vol. 3, MUNI Journals, 2018.

[2]AIR 1964 SC 72.

[3]1966 SCC OnLine SC 2.

AIR 1964 SC 962.

[5]Laksheyender Kumar, Abuse of Administrative Discretion, legalservicesindia.com, 21-6-2021, <http://www.legalservicesindia.com/article/756/Abuse-of-Administrative-Discretion.html>.

[6](1979) 2SCC 491.

[7]AIR 1967 SC 295.

[8]Companies Act, 1956, S. 237.

[9]Companies Act, 1956, S. 236.

[10](1969) 1 SCC 325.

[11](1980) 4 SCC 311.

[12]AIR 1963 SC 151, para 36.

[13]Land Acquisition Act, 1894.

[14] (1987) 4 SCC 611

[15]Army Act, 1950.

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