Administrative discretion and its judicial review

1. Meaning

Discretion is the power to choose between courses of action, each of which is lawful. Statutes confer it in words such as “may”, “if he is satisfied”, “as he thinks fit” or “in the public interest”. It is unavoidable in a modern State, because no statute can foresee every case. The danger is that a choice can become arbitrary, discriminatory or corrupt, so the law insists that it be exercised in good faith, for the purpose for which it was given, on relevant considerations and reasonably.

2. Control at the stage of grant

The Constitution limits how far the legislature may confer discretion.

• Article 14. A statute that gives an authority unguided and uncontrolled power to pick and choose between persons or cases is void. In State of West Bengal v. Anwar Ali Sarkar, 1952 INSC 1, AIR 1952 SC 75, section 5 of the West Bengal Special Courts Act, 1950 allowed the Government to send “cases” to special courts with a less favourable procedure, without any guiding principle. It was struck down. Where the statute lays down a policy that guides the discretion, it is valid even if the discretion is wide.
• Article 19. A discretion that can restrict a fundamental freedom must be guided by standards that make the restriction reasonable. Unguided discretion to grant or refuse a licence to carry on a trade, or permission to hold a meeting, is an unreasonable restriction.
• Procedural safeguards such as a hearing, reasons and an appeal tend to save a grant of wide discretion, because they reduce the risk of arbitrary use.

3. Control at the stage of exercise: abuse of discretion

• Mala fides. Personal malice, or action for a corrupt or dishonest motive. Hard to prove; the burden is on the person who alleges it, and courts expect specific particulars.
• Improper purpose. Power used for a purpose other than that for which it was given, even if honestly. A power to requisition land for a school cannot be used to settle a private dispute.
• Irrelevant considerations, or ignoring relevant ones. In State of Bombay v. K.P. Krishnan, 1960 INSC 126, AIR 1960 SC 1223, the Government refused to refer an industrial dispute for adjudication because the workmen had resorted to a go-slow. That was held an irrelevant, punitive consideration, and the Government was directed to reconsider. In S.R. Venkataraman v. Union of India, 1978 INSC 219, (1979) 2 SCC 491, an order prematurely retiring a government servant, based on matters that were not relevant to the decision, was quashed as an abuse of power amounting to malice in law, even though no personal ill-will was shown.
• Subjective satisfaction without basis. Even where the statute says “if the Government is of opinion”, the court can ask whether there were circumstances on which such an opinion could be formed. In Barium Chemicals Ltd. v. Company Law Board, 1966 INSC 116, AIR 1967 SC 295, and Rohtas Industries Ltd. v. S.D. Agarwal, 1968 INSC 341, (1969) 1 SCC 325, orders directing investigation into a company's affairs under section 237(b) of the Companies Act, 1956 (since replaced by the Companies Act, 2013) were quashed because the circumstances relied on could not reasonably support the opinion required.
• Unreasonableness. In Associated Provincial Picture Houses v. Wednesbury Corporation (Court of Appeal, 1947), Lord Greene M.R. said that a court may interfere if a decision is so unreasonable that no reasonable authority could ever have come to it. Indian courts apply this together with the Article 14 standard of arbitrariness, and in cases touching fundamental rights now apply proportionality (see the note on Promissory estoppel, legitimate expectation and proportionality).
• Colourable exercise, where an authority does indirectly what it cannot do directly.

4. Failure to exercise discretion

• Acting under dictation. The authority named in the statute must apply its own mind. In Commissioner of Police v. Gordhandas Bhanji, 1951 INSC 52, AIR 1952 SC 16, the Commissioner cancelled a licence for a cinema because the Government told him to. The cancellation was held invalid: the power was his, not the Government's. In Purtabpur Co. Ltd. v. Cane Commissioner of Bihar, 1968 INSC 309, (1969) 1 SCC 308, the Cane Commissioner reserved sugarcane areas on the Chief Minister's direction; the order was quashed for the same reason.
• Fettering discretion by rigid policy. An authority may adopt a policy, but it must remain willing to consider each case on its merits and make exceptions.
• Non-application of mind: mechanical orders, cyclostyled forms, orders that do not address the facts.
• Unauthorised sub-delegation (see Excessive delegation, conditional legislation and sub-delegation).

5. Problem: permission for public meetings

The State Police Act gave the Police Commissioner discretionary power to grant or refuse permission for any public meeting on a public street. Decide the validity of the power. (January 2026)

Issue. Whether a power to grant or refuse permission, without stated grounds or guidelines, is a reasonable restriction on the freedom of assembly and speech, and consistent with Article 14.

Law. Article 19(1)(a) and (b) guarantee speech and peaceable assembly without arms, subject to reasonable restrictions under Article 19(2) and (3) in the interests of public order and the other listed grounds. Unguided discretion fails Article 14 (Anwar Ali Sarkar). In Himat Lal K. Shah v. Commissioner of Police, Ahmedabad, 1972 INSC 222, (1973) 1 SCC 227, a rule under the Bombay Police Act that allowed the Commissioner to grant or refuse permission for public meetings on streets, without any guidance, was struck down. The State can regulate the use of streets in the interests of traffic and public order, but it cannot leave the right to hold meetings to the unfettered discretion of an officer.

Application. If the Act gives the Commissioner power to refuse without stating the grounds on which refusal is permitted (public order, traffic, safety), the power is unguided and can be used to silence some groups and favour others. It is not a reasonable restriction. If, on the other hand, the Act or rules lay down grounds and require reasons, the power is valid, and each refusal can be tested on those grounds.

Conclusion. As stated, the power is invalid under Articles 14 and 19, following Himat Lal Shah. A power to regulate meetings by reference to stated grounds would be valid.

6. Problem: amending a notification

The Government notified areas for a slum clearance scheme. It later amended the notification and left out some of the areas in the original scheme. Decide its validity. (June 2025)

Issue. Whether the Government could amend its notification, and on what grounds the amendment may be challenged.

Law. Section 21 of the General Clauses Act, 1897 provides that a power to issue notifications includes a power, exercisable in the like manner and subject to the like sanction and conditions, to add to, amend, vary or rescind them. The amendment must follow the same procedure as the original (publication, objections, approval) and must be exercised bona fide, on relevant considerations and consistently with the purpose of the Act. A notification of general application does not ordinarily need a hearing (Cynamide), but if the parent Act gave a hearing before the original notification, the same applies to the amendment.

Application. The power to amend exists. The amendment is valid if the areas were left out for reasons related to slum clearance (they no longer meet the statutory definition, or resources do not permit). It is invalid if made for an extraneous purpose, such as favouring influential owners, or without the procedure the Act requires, or in a discriminatory manner offending Article 14.

Conclusion. Valid in principle under section 21; open to challenge on the grounds of abuse of discretion in section 3 above if the reasons are extraneous or the procedure was skipped.

How this is examined

June 2025: “Discuss the scope of judicial review of administrative discretion in the light of fundamental rights.” Answer in the two stages: grant (Articles 14 and 19, Anwar Ali Sarkar, Himat Lal Shah) and exercise (abuse and non-exercise, with one case for each ground), and end with Wednesbury and proportionality. Both problems above come up regularly.