Law and You > Administrative Law > Grounds of Judicial Review: Failure to Exercise Discretion
Judicial review can be called in two cases: a) Failure to exercise discretion and b) Excess or abuse of discretion. In this article, we shall study the judicial review in case of the failure to exercise discretion
There is a general rule that courts have no power to interfere with the action taken by the administrative authorities in the proper exercise of their powers. Judicial review is not really concerned with the conclusions of that process and whether those were ‘right’, as long as the right procedures have been followed. The court will not substitute what it thinks is the ‘correct’ decision. But it is concerned with the manner in which a decision has been passed by the administrative authority. This may mean that the administrative authority will be able to make the same decision again, so long as it does so in a lawful way. When discretion vested in an administrative authority is not exercised in a proper, reasonable and lawful manner, it becomes the duty of the courts to step in to correct the situation and remedy the consequent injustice. The power of judicial review has been successfully invoked in two broad circumstances: a) Failure to exercise discretion and b) Excess or abuse of discretion
Failure to Exercise Discretion:
Unauthorized Delegation:
An administrative discretionary power must in general, shall be exercised by the authority to whom it has been conferred. The Latin maxim delegatus non potest delegare means when power has been confided to a person, he must exercise the power personally unless he has been expressly empowered to delegate it to another under the statute. Special tribunals and public bodies exercising functions analogous to the judicial functions are precluded from delegating their powers of decision making unless there is an express authority to that effect.
In Sahni Silk Mills Pvt. Ltd. v. ESI Corp., 1994 SCC (5) 346 case, an Act authorized a corporation to delegate its power to recover damages to the Director-General. The Director-General delegated this power to Regional Director. The Court held that this delegation is illegal because there is no provision in the Act to delegate the power further.
In Central Talkies v. Dwraka Prasad, AIR 1961 SC 606 case, where the order granting permission was issued by an Additional Magistrate, who was authorized in this regard by the District Magistrate under the statute, the Court refused to interfere.
In Pradyat Kumar v. Chief Justice of Calcutta, AIR 1.956 SC 28 case, the enquiry against the Registrar of the High Court was made by a puisne Judge (at a lower rank than chief justice) of the court. After considering the report and giving show-cause notice, he was dismissed by the chief justice. The Supreme Court held that it was not a case of delegation of power by the Chief Justice but merely of employing a competent officer to assist the Chief Justice.
Self-Imposed Fetters on Discretion:
Fetters means restrictions. Article 19(1) of the Constitution guarantees six freedoms subject to reasonable restrictions. The powers conferred on the administration should not be arbitrary, and that an ‘unfettered discretion’ left to the Executive would be inconsistent with Article 19. Thus, uncontrolled discretion i.e. discretion not guided by rules, principles or policy is liable to be struck down by the court as infringing of rights conferred in Article 19.
Article 14, of the Constitution, provides for the principles of ‘equality before the law and “equal protection of the law”. This is further supported by Article 15 expressly prohibiting discrimination on grounds of religion, race, caste, sex or place of birth. Article 16 states that there shall be equality of opportunity in matters of public employment.
The Administrative Law is not codified, but its actions should be within guidelines provided by the Constitution. Hence administrative authority has to consider constitutional provisions before taking action. Thus they should apply self-imposed restrictions on them. The exercise of statutory discretion cannot be fettered by adopting a rigid policy or a mechanical rule. When a statute confers power on any authority to apply a standard, it is expected of it to apply it from case to case, and not to fetter its discretion by declaring rules or policy to be followed uniformly in all cases. The authority must consider each case on its merits and then decide it in one way or the other.
In Keshavan Bhaskaran v. State of Kerala, AIR 1961 Ker 23 case, the relevant rule provided that no school leaving certificate would be granted to any person unless he had completed fifteen years of age. The Director was, however, empowered to grant an exemption to this rule in deserving cases under certain circumstances. But in fact, the Director had made an invariable rule of not granting exemption unless the deficiency in age was less than two years. The court held that the rule of the policy was contrary to law.
Acting Under the Dictates of Superior:
Under this categorization, courts exercise judicial control over administrative discretion if the authority entrusted with the power to exercise independently does not exercise that power, but acts under the dictation of a superior authority. The principle is that when law vests discretionary powers in a designated official, it is he who has to exercise the same according to his judgment and discretion; and no one else, howsoever high he may be in the hierarchy can usurp that power or direct the concerned official to exercise it in a particular manner. There is, however, a distinction between seeking advice or assistance on the one hand and acting under dictation on the other hand. Advice or assistance may be taken and then discretion may be exercised by the authority concerned genuinely without blindly and mechanically acting on the advice.
In State of U.P. v. Maharaja Dharmander Prasad, (1989)2 SCC 505 case, the Supreme Court has observed: “The authority cannot permit to be influenced by the dictation of others at as this would amount to abdication and surrender of its discretion. It would then not be the authority’s discretion that is exercised, but someone else’s. If an authority hands over its discretion to another body it acts ultra. Vires. Such interference by a person or body extraneous to the power would plainly be contrary to the nature of the power conferred on the authority.”
In Commissioner of Police v. Dordhandas, AIR 1952 SC 16 case, where a licence for the construction of a cinema was granted by the Police Commissioner, but later cancelled by him under the direction of the State Government, the Supreme Court set aside the cancellation of the licence.
In Purtabpore Company Ltd. v. Cane Commissioner, AIR 1970 SC 1896 case, the cane commissioner who had the power to reserve sugarcane areas for the respective sugar factories, at the dictation of the Chief Minister excluded 99 villages from the area reserved by him in favour of the appellant company. The court quashed the exercise of discretion by the Cane Commissioner on the ground that he exercised the power at the dictation of some other authority, therefore, it was deemed that the authority had not exercised its discretion at all.
In Orient Paper Mills v. Union of India, AIR 1970 SC 1498 case, under the relevant statute, the Deputy Superintendent was empowered to levy excise. Instead of deciding it independently, the Deputy Superintendent ordered a levy of excise in accordance with the directions issued by the Collector. The Supreme Court set aside the order passed by the Deputy Superintendent.
Non Application of Mind:
When a discretionary power is conferred on authority, the said authority must exercise that power after applying its mind to the facts and circumstances of the case in hand. If an authority in exercising statuary discretion passed an order mechanically, without applying its mind to the facts and circumstances of the case or without due care and caution; or without a sense of responsibility of its discretion, the authority cannot be said to exercise of statutory discretion
In Emperor v. Sibnath Banerji, AIR 1945 PC 156 case, an order of preventive detention was quashed as it has been issued in a routine manner on the recommendation of police authorities and the Home Secretary himself had not applied his mind and satisfied himself that the impugned order was called for.
In Nandlal v. Bar Council of Gujarat, AIR 1981 SC 477 case, the Advocates Act, 1961 provides that if on a receipt of a complaint against an advocate, the State Bar Council has “reason to believe” that the advocate has been guilty of misconduct, it shall forward the case to the disciplinary committee. It was held by the Supreme Court that in forwarding a case to the disciplinary committee the council cannot act mechanically. It must apply its mind to find out whether there is any reason to believe that any advocate has been guilty of misconduct only when the Bar council has a reasonable belief that there is a prima facie case of misconduct, a disciplinary committee, is to be entrusted with inquiry against the concerned advocate.
Power Coupled With Duty:
Apart from statutory or administrative discretionary powers, the Law also imposes a “statutory duty” to be discharged toward the Citizens for achieving the object of the Act. The duty is so imposed by the Legislature or the Parliament to seek “better welfare” of the Citizen, or to achieve what is called the “public good”. The words which are normally used in such statutes are “it may be lawful …” or “it may be permissible ….” Or similar words. In such cases, the question arises as to whether the power of concerned authority also implies a duty to exercise such power. When the law empowers the authority, and when the law imposes a “clear duty to be discharged”, there is no option with the authority, but to “discharge the duty according to the law”. The discharge of duty that exists under the provision of law cannot be avoided by assuming, presuming or pretexting that such power to discharge the duty is permissive.
In R v. Metropolitan Police Commissioner, (1968) 2 QB 118 case, the Court held that the transport authority was bound to renew the licence of taxi-drivers if certain conditions had been satisfied.
In R v. Newcastle-upon-tyne Corp., (1889) 60 LT 963 case, the Court held that a local authority is bound to approve building plans if such a plan is in conformity with relevant bye-laws.