INTRODUCTION

In the wake of independence, the constitution-makers were endowed with the task of
transitioning our country from a “laissez faire” or “police” state to a welfare state whereby
the government would perform various functions. In a welfare state, since the government
has to perform numerous functions such as provision for basic amenities, upliftment of
minor/backward class, equitable distribution of resources, sufficient opportunities for
growth, etc., the legislature could not possibly make laws on every subject – matter due to
time constraint and lack of expertise. Furthermore, the process of enacting a statute is a
lengthy process that cannot be appropriated and followed in emergency situations. 1 For
example, during COVID-19, the executive authorities made several rules and regulations by
using their delegated power to timely respond to life-threatening situations. In the given
scenario, if the people had to wait for the legislative body to assemble and pass the law, the
general public would have suffered greater losses.

At the time of independence, the delegation of legislative powers was need of the hour, yet it
had to be practiced with checks and balances. India was governed by a single ruling party,
with little or no opposition that resulted into fear of anarchy2. The first Chief Justice of India,
H.J. Kania said, “In view of the fact, however, that the opposition is negligible, the position
of judiciary will become all the more important. In the Legislative Assembly, a Bill could be
passed and made into an Act without much difficulty. Having regard to this position of the
Legislature, if the Executive which is now held responsible to the Legislature does acts
which encroach upon the liberty of the subjects, the only thing which can redress against the
irregular action of the Legislature is the courts”3. Thus, to ensure that discretionary powers
entrusted are not exercised in an arbitrary, vague, and fanciful manner, there was a need for a
strong legal institution. The strong legal institution would be responsible for acting fairly at
the time of reviewing the actions of the other two organs of the government, the legislature
and executive.4

The constituent assembly, through various provisions such as Article 32 and 226 of the
Constitution of India 1950, empowered the Supreme Court and the High Courts with the
power of judicial review. However, even with the support of provisions and constitutional
1
Dr U.P.D. Kesari & Dr. Aditya Kesari, ‘Delegated Legislation’ in Lectures on Administrative Law, Central
Law Publications (2018)
2
M.C. Setalvad, ‘Judicial Review of Administrative Proceedings’ (1958) Journal of Indian Law Institute Vol. 1.
https://www.jstor.org/stable/43952883 (last accessed on September 7, 2024)
3
CJI Harilal Jekisundas
4
M.C. Setalvad, ‘Judicial Review of Administrative Proceedings’ (1958) Journal of Indian Law Institute Vol. 1.
https://www.jstor.org/stable/43952883 (last accessed on September 7, 2024)
principles, the courts earlier deferred from intervening into the matters involving delegated
powers. Nevertheless, with the passage of time, the court felt the need to intercede since
discretionary powers were being exercised as per the whims and fancies of the concerned
authorities5. It is important to note that the intercession of court cannot be in par with the
common belief of the people that judiciary can only be said to be free from fear or favour if
it passes a verdict against the state, in favour of the individual. Since this approach would
declare every development project or scheme initiated by the government ultra vires on the
ground that it adversely affects the interest of some individuals. Therefore, the court while
judicially reviewing the matter before it has to maintain a balance between the welfare of the
people and individual rights. The competent court, while exercising its jurisdiction to
judicial review an administrative action, takes into account practices such as generalization
of subject matter without hearing the cases, acting under dictation, non-application of mind,
exercise of power in excess of jurisdiction, irrelevant consideration, non-consideration of
relevant factors, mixed consideration, colourable exercise of power, and power coupled with
duty. On the basis of facts and circumstances, the court has passed directions, orders, and
writs declaring the administrative action illegal and void. 6 While the power has been granted
to the court for protection, it is imperative to ensure that such power is exercised only in
necessity. There has to be a distinction between judicial review and judicial overreach so that
overeager courts do not intervene in constitutionally guaranteed domains of the other
governmental organs. It has been observed that overenthusiastic judges forgetfully encroach
upon matters outside their jurisdiction. An example of intrusion is Vishaka Gupta v. State of
Rajasthan7, whereby the judges issued legislative directions for the prevention and
protection of women from sexual harassment at the workplace. Another example to indicate
infiltration into the executive domain is Shiv Kant Jha v. Union of India 8whereby the court
declared inoperative a treaty signed by the Government of India with a foreign country.

Whilst the courts in India here have decided to interfere, the courts in the United States of
America, whereby the doctrine of judicial review was evolved in the verdict of James
Marbury v. Madison9, have decided to be constrained by the legislative and judicial
restrictions. For the purpose of ensuring that citizens are governed by laws enacted by the
elected representatives rather than unelected judges, certain limitations are prescribed that
5
S.N. Jain, ‘Abuse of discretion – Scope of judicial review to correct errors of law through mandamus and
certiorari’ (1964) Journal of the Indian Law Institute Vol. 6 https://www.jstor.org/stable/43949807 (last viewed
on September 15, 2024)
6
C.K. Thakker (Takwani), ‘Judicial Review of Administrative Discretion’, Eastern Book Company (2007)
7
Vishaka Gupta v. Union of India (1997) 6 S.C.C. 241
8
Shiv Kant Jha v. Union of India (2002) 256 I.T.R. 563 (Del)
9
James Marbury v. Madison 5 US 137 (1803)
are either statutory or judge-made principles, such as the presumption of constitutionality
and principle (Congress)-agent (administration) relations. The practice of limited
intervention is necessary, whether in the legislative or administrative domain, owing to
certain experiences wherein the involvement of the court has done more harm than good. In
10
the verdict of Dred Scott v. Stanford, the US Supreme Court ignored the statutory
provision that protected the rights of the black citizen and supported slavery.

Since the United Kingdom does not have a written constitution, any law made by the
Parliament could be said to be constitution. For a long time, parliamentary sovereignty was
followed, however, with a change in the selection process of the judges through enactment
of Constitutional Reforms Act 2005 and Human Rights Act 1998, several judicial decisions
have been pronounced which indicates strengthening the powers of the court11.

The courts of the three democracies, India, U.K. and the USA, have practises judicial review
of administrative action. However, each of them, owing to their legal philosophies and
socio-political-economic diversification needs, has adopted its own modus operandi.
Ultimately, the aim of the courts of these three countries is to create a balance between
administrative actions exercised for public good and protection of private rights of the
individuals.

JUDICIAL REVIEW OF ADMINISTRATIVE DISCRETION: INDIAN

PERSPECTIVE

There has been a shift from the ideology that man is the best judge for himself who should
solely regulate his business without any state interference. Thus, the state has started
intervening in matters that are just beyond maintenance of law and order. Thereby, increase
the workload of the state. Hence, powers have been delegated from the Parliament to the
executive reduce their burden.12

The principle of delegated is incorporated in the constitution of this country. Article 13(3)(a)
of the Constitution of India states, “law includes ordinance, order, bye- law, rules,

10
Dredd Scott v. Stanford 60 US 393 (1857)
11
Monica Lineberger, ‘IF YOU GIVE A MOUSE A COOKIE, HE MIGHT WANT A GLASS OF MILK:
JUDICIAL ACTIVISM IN THE UNITED KINGOMD” in Judicial Activism in Comparative Perspective
Hausegger, Lori, and Raul Sanchez Urribarri, eds. First edition. New York, NY: Peter Lang, 2024.
12
Dr U.P.D. Kesari & Dr. Aditya Kesari, ‘Delegated Legislation’ in Lectures on Administrative Law, Central
Law Publications (2018)
regulation, notification, custom or usage having in territory of India the force of law.” 13The
ordinance, order, bye-laws, rules, regulations and notifications are made by the executive,
not the legislature. Furthermore, the Supreme Court in its landmark decision of re Delhi
Laws Act observed, “the complexity of the modern administration and the expansion of the
functions of the state to the economic and social sphere have rendered it necessary to resort
to new forms of legislation and give wide powers to various authorities on suitable
occasions. Delegated legislation has become a present-day necessity, and it has come to
stay – it is both inevitable and indispensable. The Legislature has now to make so many
laws that it has no time to devote all the legislative details and sometimes the subject in
which it has to legislate is of such technical nature that all it can do, is to state broad
principles and leave the details to be worked out by those who are more familiar with the
subject. Again, when complex scheme of reforms is to be subject of legislation, it is difficult
to bring out a self – contained and complete Act straightaway, since it is not possible to
foresee all the contingencies and envisage all the requirements for which provision is
made.”14 However, delegated legislation is not unrestricted or unconditional. The legislature
has to lay down guidelines or policies within the contours of which such power has to be
exercised. These guidelines cannot be too broad, vague, weak or incomplete. In Hamdard
Dawakhana v. Union of India, 15the court held section 3 of The Drugs and Magic Remedies
(Objectionable) Advertisement Act 1954 to be void since no policy had been clearly laid
down for the authorities to determine which diseases could be included within the ambit of
this law. These guidelines could be inferred from the preamble, provisions or subject-matter
of the statute16. The administrative authorities have the power to modify or amend the laws
as well, without impacting the essential features. In Raj Narain Singh v. Chairman, Patna
17
Administration Committee , the authority had the power to apply the Bihar and Orissa
Municipal Act 1922 in any part of Bihar subject to such modifications and restrictions as it
deems fit. The authority applied the whole statute in Bihar except section 104 18which stated
that municipality cannot impose any tax on the local population without giving them an
opportunity of being heard. Considering section 104 of the said statute to be an essential
feature, the court declared the partial adoption of the laws to be ultra-vires.

13
Article 13(3)(a) of the Constitution of India 1950
14
Re Delhi Laws Act AIR 1951 SC 332
15
Hamdard Dawakhana v. Union of India AIR 1960 SC 554
16
Registrar of Co-operative Societies v. K. Kunjbum AIR 1980 SC 350
17
Raj Narain Singh v. Chairman, Patna Administration Committee AIR 1954 SC 569
18
Section 103 of the Bihar and Orissa Municipal Act 1922
Through multiple decision, the court has reiterated its position to determine the validity of
the administrative discretions. The Apex Court in its verdict in Minerva Mills v. Union of
India 19held that judiciary is independent and is entrusted with the power to determine the
legality of the administrative and legislative actions. Moreover, in the case of Tata Cellular
v. Union of India,20 the court warned that the scope of judicial review should not be too
restricted or else it would make the procedure meaningless and a mere formality. However,
it has been pointed out that concern of judicial review process is the decision – making
process, not the decision itself. 21

The court considers the validity of an action on two grounds: one is violation of the
constitutional provisions and second is violation of the parent act granting powers. The
power of the Supreme Court and the High Courts to adjudicate on the validity has been
derived from Article 32 and 226 of the Constitution of India 1950. Article 32 grants the right
to move to the Supreme Court for enforcement of the fundamental rights. Herein, the court
can issue orders, directions and writs including writs in the nature of Habeas Corpus,
Mandamus, Certiorari, Prohibition and Quo Warrantor22. In a similar fashion, under Article
226, the High Court has the power, notwithstanding the power given to the Supreme Court
under Article 32, to issue directions, orders and writs in the nature of Habeas Corpus,
Mandamus, Certiorari, Prohibition and Quo Warrantor within its territorial jurisdiction
against any person or authority including the government for the enforcement of the
fundamental rights and any other constitutional rights.23

The courts can review the administrative actions on the following grounds:

1. Failure to exercise discretion

a) Sub – delegation

De smith said, “a discretionary power must, in general, be exercised only by the authority to
which it has been committed”24

If the law-makers have confided their power to a particular official or authority, the power
should be exercised by that particular official or authority only unless further delegation has
been permitted by the parent statute. This ensures that only trustworthy perform vital

19
Minerva Mills v. Union of India AIR 1980 SC 1789
20
Tata Cellular v. Union of India AIR 1996 SC 11
21
Chief Constable v. Evans (1982) 3 All ER 141: (1982) 1 WLR 1155
22
Article 32 of the Constitution of India 1950
23
Article 226 of the Constitution of India 1950
24
De smith
functions. In Sahni Silk Mills v. ESI Corporation25, the power to recover damages were
delegated to the Director – General alone. The further sub – delegation, without permission,
to the Regional General was declared illegal. However, employment of a competent person
to assist the delegated authority is permissible. This was held in Pradyat Kumar v. Chief
Justice of Calcutta. 26

b) Imposing fetters

In exercising its power, the authority should not decide a general rule that will be applied
notwithstanding the facts and circumstances. The Supreme Court held the general policy to
contrary to the law in Keshavan Bhaskaran v. State of Kerala 27. The law prescribed that a
person has to be at least fifteen years for availing a school leaving certificate. However, the
Director – General had the discretion to forego this condition after consideration of each
situation. Yet, the Director – General instead of carefully evaluating each situation, adopted
a common rule that school leaving certificate could be given if deficiency of age is of less
than 2 years.

c) Acting under dictation

The power should be exercised without any external influence. However, certain times the
delegated authority acts under the dictation of third party. Such decisions are bad in law,
making them ultra vires to the constitution.

In Commissioner of Police v. Gordhandas28, the court set aside the cancellation order passed
by the Commissioner of Police since this decision was made under the dictation of the state
government. Anyway, the court demarcated between dictation and advice in Baldev v. Union
of India29. The court said that an authority basing its decision on an advice by the committee
is not illegal.

d) Non – application of mind

The administrative authorities should apply their minds before reaching to a decision. The
Supreme Court in Jagannath v. State of Orrisa 30held the action of the Home Minister was
taken without any proper application of mind. They based their decision only on the

25
Sahni Silk Mills v. ESI Corporation (1994) 5 SCC 346
26
Pradyat Kumar v. Chief Justice of Calcutta AIR 1956 SC 285
27
Keshavan Bhaskaran v. State of Kerala AIR 1961 Ker 23.
28
Commissioner of Police v. Gordhandas AIR 1952 SC 16
29
Baldev v. Union of India (1980) 4 SCC 321
30
Jagannath v. State of Orissa AIR 1966 SC 1140
personal satisfaction of two grounds mentioned in the statute, instead of mandatory personal
satisfaction of six grounds.

e) Power coupled with duty

The parent statutes grant discretion to the administrative authorities to act on their own will.
Such statutes are filled with the words such as “may”, “it may be lawful” etc. Such
discretion is not absolute, it has to be exercised in accordance with the prescribed guidelines.
This point can be illustrated by Hirday Narain v. ITO 31judgement. The court held that if
circumstances exist for exercising of the discretionary power, the discretionary power has to
be exercised.

2. Excess / Abuse of discretion

a) Absence of power

For performing an act/omission, the administrative authority must have power vested in
them by any law. If there is no such power, the action/omission is void ab initio. In R v.
Minister of Transport 32, the act of revoking license by the minister was ultra vires since no
such was authorized to him in the statute.

b) Exceeding jurisdiction

The discretion to be exercised is to be within the contours of the power delegated to them.
For example: if the authority is empowered to grant medical aid to the employees, it cannot
extend the medical benefits to the family members of such employees.33

c) Considerations

The delegated power has to be exercised on the basis of relevant considerations only.
However, it is not necessary that taking into irrelevant consideration for the purpose of
reaching a decision is always malicious, it could be an honest mistake too. 34

In R.L. Arora v. State of Uttar Pradesh 35the court the government action to be void ab initio
since it themselves cannot not interpret the word “personal satisfaction” and then decide that
same has been fulfilled. The government act of acquiring private properties for establishing
factories was declared invalid because it was not in the interest of the people. Similarly,
31
Hirday Narain v. ITO (1970) 2 SCC 355
32
R v. Minister of Transport (1934) 1 KB 277: (1933) All ER 604
33
G.E.S. Corporation v. Workers’ Union A.I.R. 1959 SC 1191
34
C.K. Thakker (Takwani), ‘Judicial Review of Administrative Discretion’, Eastern Book Company (2007)
35
R.L. Arora v. State of Uttar Pradesh A.I.R. 1962 SC 764: 1962 Supp (2) SCR 149
since the divisional engineer disconnected the telephone lines on the mere allegations of
forward trading, instead of public emergency as prescribed in the statute, it was held to be
illegal. 36

In Prem Shankar v. Delhi Administration 37the court held that social status of an offender is
an irrelevant consideration for determining whether they should be handcuffed or not.

If the authority basis its decision on both relevant and irrelevant consideration, it becomes
difficult to adjudicate on the issue. If a decision has been based on the relevant and
irrelevant consideration which has to be determined on the personal satisfaction of the
authority, such decision will be set aside. In Dwarka Das v. State of Jammu and Kashmir 38,
the court set aside the detention order since it was culmination of relevant and irrelevant
grounds. The court in Zora Singh v. J.M. Tandon said, “The principle that if some of the
reasons relied on by a Tribunal for its conclusion turn out to be extraneous or otherwise
unsustainable, its decision to be vitiated, applies to cases in which the conclusion is arrived
not on the assessment of objective facts or evidence, but on the basis of personal
satisfaction. The reason is that whereas in cases where the decision is based on the
subjective satisfaction, if some of the reasons turn out to be irrelevant or invalid, it would be
impossible for a superior court to find out which of the reasons, relevant or irrelevant, valid
or invalid, had brought about such satisfaction. But in a case where the conclusion is based
on objective facts and evidence, such difficulty would not arise. If it is found that there was
legal evidence before the Tribunal, even if some of it was irrelevant, a superior court would
not interfere if the finding can be sustained on the rest of the evidence. 39

However, the court has to assure itself that exclusion of irrelevant consideration would have
created an impact on the mind of the authorities.40 For example, in Pyara Lal Sharma v.
State of Jammu and Kashmir41, the dismissal order was declared valid since court was able
to distinguish between the relevant and irrelevant grounds taken into consideration at the
time of reaching to the decision.

d) Malice

36
Hukum Chand v. Union of India (1976) 2 SCC 128: AIR 1976 SC 789
37
Prem Shankar v. Delhi Administration A.I.R. 1970 S.C. 1536
38
Dwarka Das v. State of Jammu and Kashmir A.I.R. 1957 SC 164: 1956 SCR 948
39
Zora Singh v. J.M. Tandon (1971) 3 SCC 834: A.I.R. 1987 SC 570
40
Manu Bhusan v. State of West Bengal (1973) SCC 663: AIR 1973 SC 295
41
Pyara Lal Sharma v. State of Jammu and Kashmir (1989) 3 SCC 448: AIR 1989 SC 1854
Malicious acts/omissions by the administrative authorities are illegal per se. It could be an
express or an implied malice. Decisions reached on extraneous facts and circumstances
accounts for express malice. Orders given in contravention of law is implied malice. The
removal of surgeon only because he refused to act on illegal directions of the minister was
held to be a decision based on express malice. 42 In Municipal Council of Sydney v.
Campbell43, property acquisition was held to be against the law since it was incongruence
with the purpose stated in the enactment. The court usually considers the decision of the
authorities to be constitutional valid and based on bona fide considerations thus, the burden
of proving otherwise is on the claiming party.44

e) Improper purpose

The accorded to the administrative authorities have to be exercised for the purpose
prescribed under the statute. The court in Nalini Mohan v. District Magistrate set aside the
order that granted accommodation to those Pakistanis who visited India on medical leaves.
The statute prescribed accommodation to only communal violence refugees. 45

While it can be clearly deciphered that courts carefully scrutinize the actions of the
administrative authorities, it is vital to understand that earlier courts were reluctant to pass
any order against them. For a long duration of time, the Supreme Court and the High Courts
46
followed the footsteps of A.K. Roy v. Union of India which prescribed that no writ could
be passed against the administrative authorities. However, this underwent a drastic change in
R.L. Arora v. State of Uttar Pradesh.47 Furthermore, the courts have been issuing writ of
certiorari ever since K.M. Shanmugan v. S.R.V.S. Private Limited 48since the decisions was
apparent.49

The ambit of the administrative actions has to be carefully defined to ensure public welfare,
administrative efficiency and protection of private rights. 50 Justice of US Supreme Court
said, “Judicial Review gives time for the sober second thought. It interrupts the

42
Pratap Singh v. State of Punjab A.I.R. 1964 SC 72: (1964) 4 SCR 733
43
Sydney v. Campbell (1925) AC 338: (1924) All ER 930
44
E.P. Royappa v. State of Tamil Nadu (1974) 4 SCC 3 (41)
45
Nalini Mohan v. District Magistrate A.I.R. 1951 Cal 346
46
A.K. Roy v. Union of India A.I.R. 1982 SC 710
47
R.L. Arora v. State of Uttar Pradesh A.I.R. 1962 SC 764: 1962 Supp (2) SCR 149
48
K.M. Shanmugan v. S.R.V.S. Private Limited A.I.R. 1963 S.C. 1626
49
S.N. Jain, ‘Abuse of discretion – Scope of judicial review to correct errors of law through mandamus and
certiorari’ (1964) Journal of the Indian Law Institute Vol. 6 https://www.jstor.org/stable/43949807 (last viewed
on September 15, 2024)
50
M.C. Setalvad, ‘Judicial Review of Administrative Proceedings’ (1958) Journal of Indian Law Institute Vol.
1. https://www.jstor.org/stable/43952883 (last accessed on September 7, 2024)
administrative process, to be sure, and makes it more time-consuming. But there are few
decisions that must move pell-mell into action. The cooling period is good for most hotly
contested issues. And where basic fundamental rights of the citizens are at stake, the
contemplative pause, necessitated by judicial review, may be critical. The confidence of the
citizen in the modern government is increased by more, rather than less, judicial review of
the administrative process. It assures that basic unfairness will be corrected. And the
administrator who knows he must ultimately account to a judicial body for his actions will
tend to be more responsible public official.51

JUDICIAL REVIEW OF ADMINISTRATIVE DISCRETION: UNITED KINGDOM

PERSPECTIVE

Post – enactment of the Constitutional Reform Act 2005, the role of Lord Chancellor in
judicial appointments, discipline, complaint and dismissal has been restricted. The Chief
Justice has been made the head of the judiciary in Wales and England. Now, the Lord
Chancellor and the Chief Justice are sharing responsibilities, along, judicial commissions.
This shift ensures lesser role of politics in appointment of judges. This has led to increase in
judicial diversity, in comparison to earlier appointments restricted to limited elderly male
white barristers who had received education from Oxford or private schools. Increase in the
judicial diversity will create room for more opinions, views and ideologies. 52 The two
commissions recommend the name of a suitable candidate to the Lord Chancellor, who can
either accept or reject it. The rejection is permissible only on the ground of “unsuitability to
the office”.53 However, since it has not been expressly defined, it can be misused to fulfill
their personal political vendetta. Till date, only the recommendation of Sir Nicholas has been
rejected on the basis of unsuitability to the office, however critics speculate it could be
because of his critical remarks on the judicial system. 54

Besides political partisan, unwritten constitution, parliamentary sovereignty and strict

adherence to the precedents have ensured weak form of judicial review in courts. The
parliamentary sovereignty only permits the courts from reviewing the secondary legislations;
those legislations that have been made by the executive or the administrative authorities.
51
Supra
52
Kate Mallison, ‘Appointment, discipline and removal of judges: fundamental reforms in the United
Kingdom’ in Judiciaries in Comparative Perspective. Ed. H.P. Lee. Cambridge University Press 2011
53
Supra
54
Supra
does not completely restrict the judiciary from intervening into the action of the authorities. 55
An example of sovereignty of parliament is Rothwell v. Chemical & Insulating Company. 56
The insurance company was not liable to compensate since plaques could not be constitutes
as an injury. However, with the intent to overrule this decision, the government enacted a
law called The Damages Act 2009. The court refused to declare the law, made by the
legislative body, constitutionally invalid.

The judicial precedent could be overturned, if needed was acknowledged by House of Lords
only in its Practice Statement 1996. 57 However, it created no impact, the judicial precedent
was overturned for the first time only in 2008. 58 The Human Rights Act 1998 empowered
the court to declare incompatible any legislation not in consonance with the European
Convention on Human Rights.59 The courts are required to interpret the laws in consonance
with the rights prescribed under the convention. 60. In Ghadian v. Godin – Mendoza, the rent
law was given a narrow interpretation. The homosexual couples were not given recognition
since the statute used the word, “husband” and “wife”. 61 However, in Fitzpatrick v. Sterling
Housing Association, the rent law was interpreted broadly to include homosexual couples
under the definition of “family.” the second mentioned case, using section 3 of the same
statute, the court gave the benefit of tenancy to the homosexual partner of the deceased by
construing them as “family”. The inclusion of these provisions ensured the courts movement
62
from total judicial restraint to judicial review. The verdict of Anisminic Limited v Foreign
Compensation Commission 63was one of the earlier judicial pronouncements that overturned
a precedent. Prior to it, any decision take by any tribunal could not be reviewed by the court
if the statute ousted their jurisdiction. It could only determine if the tribunal is competent to
adjudicate on the issue. In Smith v. East Elloe Rural District Council64, the court declared
judicial review is impermissible if jurisdiction has been excluded by the statute, “even when
the administrative act was challenged on the ground that it has been made ‘wrongfully’ and

55
Kate Mallison, ‘Appointment, discipline and removal of judges: fundamental reforms in the United
Kingdom’ in Judiciaries in Comparative Perspective. Ed. H.P. Lee. Cambridge University Press 2011
56
Rothwell v. Chemical & Insulating Company Limited (2007) UKHL 39.
57
Practice Statement of 1966 (1966) 1 W.L.R. 1234 (H.L.)
58
Monica Lineberger, ‘IF YOU GIVE A MOUSE A COOKIE, HE MIGHT WANT A GLASS OF MILK:
JUDICIAL ACTIVISM IN THE UNITED KINGOMD” in Judicial Activism in Comparative Perspective
Hausegger, Lori, and Raul Sanchez Urribarri, eds. First edition. New York, NY: Peter Lang, 2024.
59
Supra
60
Section 3 of the Human Rights Act 1998
61
Ghadian v. Godin – Mendoza (2004) UKHL 30
62
Fitzpatrick v. Sterling Housing Association (1999) UKHL 42
63
Anisminic Limited v. Foreign Compensation Commission (1969) 2 App. Cas. 147
64
Smith v. East Elloe Rural District Council (1956) A.C. 736
in ‘bad faith”.65 Now, non -observation of natural justice, malicious intent, misinterpreting
the statutory provisions, ignoring relevant consideration are grounds on which the courts can
review the decisions of the tribunals, even if the jurisdiction of the court has been excluded
in the statute.66 Another significant development was made in Regina v. Criminal Injuries
Compensation Board. 67 The court made permissible review of the decisions passed by a non
68
– statutory government tribunals. In Regina v. General Council of Bar, the respondent
was charged by the Bar Council Professional Conduct Committee for mishandling the client
money. However, aggrieved by the minuscule nature of charge, the petitioner filed a review
petition in the court seeking adjudication of the action of the committee. The court upheld
the committee action and did not pass any order against them. However, it was clear that
court could intervene. In Regina v. Advertising Standard Authority69, the court quashed the
decision passed by a non-legal body called Advertising Standard Authority set up by the
media houses jointly for regulating their conduct. The court held that if a non-legal body
decides to deflect from its prescribed rules or principles of natural justice, its decision would
be set aside. The court held that legislature has not established an authority to overlook on
the given subject since this non – legal body was exercising power over it. However, to
ensure that such wide powers does not become a cause for disastrous results, the court in
Regina v. Panel on Take-overs and Mergers 70held that instead of invalidating the decision, a
directive should be passed for future course of action. Moreover, writs can be issue only
when decision has been reached by ignoring the principles of natural justice. 71In Council of
Civil Service Union v. Minister for the Civil Service 72, court has brought the royal
prerogatives within the ambit of its judicial review powers. The extent of court’s powers has
widened to such an extent that it seems nothing can escape the scrutiny of court. In Regina v.
Secretary of State for the Environment73, the court reviewed a leaflet that was published only
for disseminating information on the new tax regime. While the leaflet was declared to be
valid, the court made it quite clear that its power is not restricted anymore. 74

65
Anisminic Limited v. Foreign Compensation Commission (1969) 2 App. Cas. 147

66
Supra
67
Regina v. Criminal Injuries Compensation Board (1967) 2 Q.B.
68
Regina v. General Council of Bar (1990) W.L.R. 323
69
Regina v. Advertising Standard Authority, The Times (London)
70
Regina v. Panel on Takeovers & Mergers (1987) Q.B. 815
71
H.W.R. Wade, ‘Beyond the Law: A British Innovation in Judicial Review’ (1991) Administrative Law
Review Vol 43 https://www.jstor.org/stable/40709686 (last viewed on November 15, 2024)
72
Council of Civil Services Unions v. Minister for the Civil Service (1985) AC 374
73
Regina v. Secretary State for the Environment, The Times (London) Q.B. Div Court
74
H.W.R. Wade, ‘Beyond the Law: A British Innovation in Judicial Review’ (1991) Administrative Law
Review Vol 43 https://www.jstor.org/stable/40709686 (last viewed on November 15, 2024)
 JUDICIAL REVIEW OF ADMINISTRATIVE DISCRETION: UNITED STATES OF
AMERICA PERSPECTIVE

For the purpose of regularizing the administrative powers, the Congress enacted
Administrative Procedure Act 1946. The statute grants as well as restricts the powers of the
court to judicially review the actions of the administrative authorities. The statutes can oust
the jurisdiction of the courts. Such action, to be named as informal discretions, have
significant impact on the citizens.

The power to judicial review that has derived from Article III Section 1 of Constitution of
the United States of America. Such power to be with the United States Supreme Court and
other courts inferior to it, as determined by the Congress. 75 The court in James Madbury v.
Marshall76noted that court has duty to review those actions of the administrative agencies
that are alleged to be in conflict with the constitutional provisions, irrespective that it causes
embarrassment or inconvenience to those who reached to the decision. This power create
fear among general public too. It is suspectable that judge would take out their robes to play
the role of a legislator. Moreover, it cannot be avoided that judges do not have any fear of
losing jobs and lack accountability. However, it is still a presumption that judiciary shall do
less harm that legislature and executive.

The court follows the principle of presumption of constitutionality and agency. Following
the first principle, the court prima facie assumes every action of the administration to be
valid on the basis that it has been undertaken to fulfil a statutory objective that is in
compliance with the provisions of the constitution. The second principle views the Congress
and the administrative agencies in the relationship of principle – agent. The principle has
delegated their powers to the agent on their accord. This creates a fiduciary relationship
between them. Such delegated powers have to be exercised within the described limits.
Thus, the court shall exercise the same deference as it would have exercised if the Congress
had acted on their own. However, this practice highlighted strict judicial restraint. 77 The
judiciary was held to be “least dangerous branch” that “lacked sword and purse”. Thus, its
decision always needed support of other two organs of the government. Nonetheless, there
has been a change in the judicial position, it now exercises a strong form of judicial review. 78
75
Article III, Section 1 of the Constitution of United States, 1776
76
James Madbury v. Madison 5 U.S. 137 (1803)
77
Steven O. Ludd, ‘Judicial Review of Administrative Discretion: Friend or Foe of the Administrative
Process’, (1994) Administrative Theory & Praxis Vol 2 https://www.jstor.org/stable/25611092 (last viewed on
September 25, 2024)
78
Richard L Pacelle Jr, 'The Complementary Use of Judicial Activism' in L Hausegger and R Sanchez Urribarri
(eds), Judicial Activism in Comparative Perspective, Peter Lang (2024)
Under the American system, ‘discretion’ could be categorized into give categories. They are
individualizing discretion, executing discretion, policy-making discretion, unbridled
discretion and numinous discretion. Individualizing discretion permits the administrative
officials to deviate from the statute to ensure its enforcement. This has been made
permissible to ensure fairness and flexibility. However, such a practice is not free from
criticism. While some believe that this will enrich the experience of the people, others want
the powers of the officers to be restricted according to the limits in the statutes. In such
cases, court exercises limited discretion. The court adjudicates on the matter by taking into
considerations such as to what extent the official is allowed to deflect from the statute, what
factors necessitate this deflection or if any irrelevant considerations have caused deflection.
The court only interferes when the decision is highly unacceptable. In Airmark Corporation
v. Federal Aviation Administration (FAA), the court held the discretion exercised by the FAA
to be “grossly inconsistent and patently arbitrarily” only because it was highly
unacceptable. Even then, it pointed out that FAA is the only authority for determining the air
carriers to be exempted from complying with the deadlines. 79 The executing discretion is
exercised when broad, vague and incomplete guidelines have been mentioned in the statute
by the Congress, which could be intentional or unintentional. The court do not strike down
such legislations, but exercise substantive judicial review powers over it. In Coal Exporters
Association of the United States v. United States 80, the court declared the actions of the
administrative authorities to be invalid, even when the guidelines were not adequate, on the
basis of the reading of the law. Under the policy – making discretion, the authorities
perform functions similar to the law - making. They fill the gaps left behind, those gaps that
have been left either in public interest or want of subject – matter expertise. The court
practices highest level of judicial restraint in such matters to ensure that policies are made on
the basis of popular will and technical knowledge, which cannot be best understood by the
81
judges. In WNCN Listeners Guild v. Federal Communications Commission (FCC), the
court clarified that agencies should be permitted to carry the policy – making functions
without the intervention of the court. The court does not have legislative powers and do not
hold technical knowledge on the required subject. The court just have the jurisdiction to
determine if the agencies have acted within the statutory powers. 82 In Chevron U.S.A.
Incorporation v. Natural Resources Defense Council,83 the court held that if the intention of

79
Airmark Corporation v. Federal Aviator Airmark 758 F.2d 586
80
Coal Exporters Association of the United States v. United States 745 F. 2d 76
81
WNCN Listeners Guild v. FCC 610 F. 2d 838
82
Deukmejian v. Nuclear Regulatory Commission 751 F. 2d 1287
83
Chevron U.S.A. Incorporation v. Natural Resources Defense Council, Incorporation 467 U.S. 837 (1984)
the legislature could be derived from the statute, the agencies will follow that intention. It no
intention could be deciphered; the agencies shall act exclusively. Unbridled discretion
precludes the courts from reviewing any act or omission. Such discretion is granted either
84
through statutory provisions or decisions of the courts. One such provisions is section
701(a)(1) of the Administrative Procedure Act 1946. It could either be an express or an
implied exclusion. Implied inclusion can be inferred through use of traditional tools such as
reading of legislative history or the enactment. If such a discretion has been evolved through
the means of judicial pronouncements, it is not immutable. In this scenario, the court is
competent to deal with the matter. The court can only determine if the issue in hand deals
with unbridled discretion.85 This form of discretion has always been entrusted with the
agencies to deal with the military and foreign affairs. 86 This is to ensure that foreign and
military matters are regulated by the political branches. In Heckler v. Chaney, the court had
to adjudicate on the matter whether non-exercise of the discretionary power by the Food and
Drug Administrator (FDA) could be reviewed by the court. The court could not intervene
since its jurisdiction had been excluded by the statute. The court held, “the danger that
agencies may not carry out their delegated powers with sufficient vigor does not necessarily
lead to the conclusion that courts are the most appropriate body to police this aspect of their
performance.”87Numinous discretion covers situations where the administrative agencies are
required to take decision in a situation that is uncertain, with no single “right” or “wrong”
answer. The court cannot expect such decisions to conform to high standards of correctness
or no probability of error. An example is the Food and Drug Administration Peanut Butter
deal. The FDA was required to decide if the peanut butter should consist of eighty – seven or
ninety – two percent of peanut. After nine years, it decided on the percentage. Anyhow, no
court can determine what percentage would have been the best option. If in such situations,
the court intervenes, it will just be replacing numinous discretion of the agency with the
numinous discretion of its own. Hence, the court instead of reviewing the decision, it can
review if all the relevant factors were taken into account by the agencies when reaching on a
decision.88

Thus, from the reading of different types of discretion, it can be seen that court has the
jurisdiction to adjudicate on the matter concerning the review of administrative discretions,

84
Section 701(a)(1) of Administrative Procedure Act 1946
85
Johson v. Robinson 415 U.S. 361, 367 (1974)
86
Miranda v. Secretary of Treasure 766 F.2d
87
Heckler v. Chaney 105 S. Ct. 1649
88
Charles H. Koch Jr, ‘Judicial Review of Administrative Discretion’ (1985) 54 Geo Wash L Rev 469
However, it has exercised its discretions, subject to limitations imposed either through
statutes or common-law judgements.

CONCLUSION – WHAT IS BEST FOR INDIA

JUDICIAL DISCRETION

It is necessary to understand that meaning of law is not always changed post – adjudication
of a dispute. It changes in just small number of cases. Such changes become a general norm
that becomes binding throughout the territory of the country.

Through exercise of judicial interpretation, the court adopts new interpretation of the law.
The judges encounter situations that does not require adoption of one correct answer, instead
choice can be made from various legitimate options. The decision has to be made by
weighing relevant considerations. The court for this purpose examines the statutory
provisions, judicial precedents and core values of the legal system. In which cases the court
should apply judicial discretion is difficult to ascertain, it has to be determined from the
views of the legal community. However, judicial discretion is never absolute, it has to be in
89
consonance with the substantive and procedural framework.

At the time of exercising the discretion, the judges should aim to achieve two goals: one to
minimize the gap between law – life and second protection of the democracy. Thus, an
attempt should be made to give the original text of the statute a dynamic meaning with the
changing political, social, cultural and economic circumstances. Advocating on this, Justice
Brennan said, “We current Justices read the Constitution in the only way we can as the
Twentieth Century Americans. We look to the history of the time of framing and to the
intervening history of interpretation. But the ultimate question must be, what do the words of
the text mean in our time? For the genius of the Constitution rests not in any statice
meaning it might have had in a world that is dead and gone, but in the adaptability of its
great principles to cope with current problems and current needs. What the constitutional
fundamentals meant to the wisdom of other times cannot be their measure to the vision of
our time. The vision of their time. Similarly, what those fundamentals mean for us, our
descendants will learn, cannot be their measure to the vision of their time.” 90Even, Roscoe
Pound held, “Hence all thinking about law has struggled to reconcile the conflicting
demands of the need of stability and of the need of change. Law must be stable and yet it
89
Aharon Barak, ‘On judging’ in Judges as Guardians of Constitutionalism and Human Rights (Edward Elgar
Publishing 2016) http://doi.ord/10.4337/9781785365867.00008 (last viewed on November 23, 2024)
90
Justice Brennan
cannot stand still.91” The role of the judges to protect the democracy is tested each day.
Their roles cannot be restricted to the time of war. War is every day, what is peaceful for one
could be a war for other. 92

JUDICIAL ACTIVISM AND JUDICIAL RESTRAINT

It is difficult to define “judicial activism” and “judicial restraint”. Nonetheless, the author
has attempted to understand these two concept on the basis of different definitions given by
different academicians.

The courts can be said to engage in judicial activism if:

1. a legislation is written in the judgement.93

2. a duly enacted statute by the legislature has been declared unconstitutional and
invalid. 94

3. any act / omission has been done that is contrary to the will of other organs of the
government.95

Dickson has enlisted four parameters to determine if the court has indulged in judicial
activism. Those are interpretation of statutory provision in an unexpected manner, dismissal
of the government views on the issue, refusing strict compliance with the judicial precedents
and development of common law. 96

The court has practiced judicial restraint if:

It is defined as the practice of the judge to focus solely on the issues that needs to be decided
for the purpose of resolving the disputes between the parties. 97An academician explained it
as the focus of the courts only on the facts of the dispute and question of law presented to
it.98Justice Scalia’s said “Court to ground its decision in some sources of authority external

91
Roscoe Pound
92
Aharon Barak, ‘On judging’ in Judges as Guardians of Constitutionalism and Human Rights (Edward Elgar
Publishing 2016) http://doi.ord/10.4337/9781785365867.00008 (last viewed on November 23, 2024)
93
Monica Lineberger, ‘IF YOU GIVE A MOUSE A COOKIE, HE MIGHT WANT A GLASS OF MILK:
JUDICIAL ACTIVISM IN THE UNITED KINGOMD” in Judicial Activism in Comparative Perspective
Hausegger, Lori, and Raul Sanchez Urribarri, eds. First edition. New York, NY: Peter Lang, 2024
94
G Jones, ‘Proper Judicial Activism’ (2001) Regent University Law Review Vol. 14 14RegentULRev141 (last
viewed on November 23, 2024)
95
R A Posner, The Federal Courts: Challenge and Reform (1999) Havard University Press
96
B Dickson ‘Activism and Restraint with the UK Supreme Court’ (2015) European Journal of Current Legal
Issues Vol. 21
97
J P Stevens, ‘Judicial Restraint’ (1985) San Diego Law Review Vol. 22
98
L F Powell Jr, ‘Stare Decisis and Judicial Restraint’ (1990) Washington and Lee Law Review Vol. 47
to the judge’s will.” 99is judicial discretion. Diedrich held that court is restraint if it respects
the decisions and actions of the other branches of the government100.

COMPARING THE PRACTICES ADOPTED BY THE COURTS IN INDIA, UNITED

KINGDOM AND UNITED STATES OF AMERICA

INDIA

The Supreme Court and High Courts in India through various constitutional provision have
been empowered to review the administrative actions of the state. Moreover, grounds to
review those action has been clearly earmarked in the judicial pronouncements. The grounds
are sub-delegation, generalized policies for each matter, acting under dictation, non –
application of mind, absence of power, exceeding jurisdiction, irrelevant consideration,
ignoring relevant consideration, mixed considerations, malice and improper purpose. 101
However, the court can only adjudicate on the process of decision-making rather than the
decision itself. The power of the court cannot replace the power of the executive 102. This
ensures that court performs its functions, without encroaching into the domain of the
administrative agencies.

If an attempt is made to understand the judicial practice in terms of definition of judicial

activism and judicial restraint, it can be said that courts in the country are actively involved
in judicial activism. This conclusion has been arrived since:

1. The judiciary invalidates the rules, regulations and bye-laws made by the executive if
found contradictory to the constitution. Such action could be said to be against the
will of the elected representatives and their agents i.e. the legislature and the
executive.
2. The judges’ resort to judicial legislation under Article 142 of the Constitution of
103
India for doing “complete justice” between the parties to the dispute. The
104
examples are D. Veluswamy v. D. Patchaiammal and Vishaka Gupta v. State of
Rajasthan.105

99
J F Manning, ‘Justice Scalia and the Idea of Judicial Restraint’ (2017) Michigan Law Review Vol. 115
100
J S Diedrich, ‘Article III, Judicial Restraint, and This Supreme Court’ (2019) SMU Law Review Vol. 72
101
C.K. Thakker (Takwani), ‘Judicial Review of Administrative Discretion’, Eastern Book Company (2007)
102
Chief Constable v. Evans (1982) 3 All ER 141: (1982) 1 WLR 1155
103
Constitution of India, article 142
104
D Veluswamy v. D Patchaiammal 2011 SC 479
105
Vishaka Gupta v. State of Rajasthan (1997) 6 SCC 241
 3. The courts waive the requirement to strictly conform with the judicial precedents.
106
There has been a transition from Aeltemesh Rein v. Union of India to Prem
Shankar Shukla v. Delhi Administrator.107 While in the former case, the court
unhappily followed the footsteps of earlier judgements of non-intervention into the
functions of the executive, in the latter the court finally objected against the non –
use of the discretion by the administrative agencies.

However, it cannot be overlooked that attempts to adhere to self – restraint has also been
made in compliance with the constitutional provision of Article 50 which prescribes that
state is mandated to take measures to separate executive from the judiciary 108. Thus, it can be
stated that judicial activism with a hint of judicial restraint has been adopted.

UNITED KINGDOM

Owing to change in the political structure of the country by passage of the Constitutional
Reforms Act 2005, the judges have been given the freedom to engage in judicial activism.
The courts are no longer bound by the shackles of unwritten constitution, parliamentary
109
sovereignty, strict adherence to judicial precedents and lack of judicial diversity. There has
been a complete shift in the practice, from self – restraint to over – involvement. The author
concludes this because court legislates within its judgements and interpret laws in an
unanticipated manner. This could be seen in Fitzpatrick v. Sterling Housing Association110.
Further, the judicial precedents are being overturned as in Anisminic Limited v Foreign
Compensation Commission.111 Moreover, the will of other organs of the government are
being ignored, as in Regina v. Advertising Standard Authority112.

UNITED STATES OF AMERICA

The courts in the US are entrusted with the responsibility of judicial review to keep the other
two branches in check. However, the power is limited by the principles such as presumption
of constitutionality and principle – agency. 113
106
Aeltemesh Rein v. Union of India A.I.R. 1988 S.C. 1768
107
Prem Shankar v. Delhi Administration A.I.R. 1970 S.C. 1536
108
Constitution of India, article 50
109
Monica Lineberger, ‘IF YOU GIVE A MOUSE A COOKIE, HE MIGHT WANT A GLASS OF MILK:
JUDICIAL ACTIVISM IN THE UNITED KINGOMD” in Judicial Activism in Comparative Perspective
Hausegger, Lori, and Raul Sanchez Urribarri, eds. First edition. New York, NY: Peter Lang, 2024.
110
Fitzpatrick v. Sterling Housing Association (1999) UKHL 42
111
Anisminic Limited v. Foreign Compensation Commission (1969) 2 App. Cas. 147
112
Regina v. Advertising Standard Authority, The Times (London)
113
Steven O. Ludd, ‘Judicial Review of Administrative Discretion: Friend or Foe of the Administrative
Process’, (1994) Administrative Theory & Praxis Vol 2 https://www.jstor.org/stable/25611092 (last viewed on
September 25, 2024)
The court seems to strike a balance between judicial activism and judicial restraint. It is
often that the court goes against the will of the other organs such as in Coal Exporters
Association of the United States v. United States 114. However, even then it practices high self
– restraint if the executive is exercising its power in nature of individualized discretion,
making policies, unbridled discretion and numinous discretion. In exercise of individualizing
discretion, the court rarely interferes with the decision, it usually adjudicates on the
procedure adopted for decision – making. In policy – making discretion, court ensures that
policies are made by the representatives elected by the general public. This was reiterated in
WNCN Listeners Guild v. Federal Communications Commission.115 Under unbridled
discretion, the court does not have power to adjudicate if its jurisdiction has been excluded
through statute. For numinous discretion, since it is difficult to reach a single “right” or
“wrong” answer, the court just determines the matter by considering if the relevant factors
were taken into account by the administrative authorities for reaching to the decision. The
court is not eager to review such kinds of decisions. 116

Hence, it can be seen that courts do not shy away to move against the wishes of the two
branches of the government. Yet, at the same time, it attempts to not transgress too much.

PRACTICE TO BE FOLLOWED IN INDIA

The courts in India actively indulge into adjudication of matters left for the administrative
agencies. They strike down legislation/rules/bye-laws/regulations/decisions that are not in
conformity with the constitutional principles. At the same time, it ensures not to replace its
117
decision for the decision of the authority. Moreover, it intervenes only if there are grounds
such as sub-delegation, generalized policies for each matter, acting under dictation, non –
application of mind, absence of power, exceeding jurisdiction, irrelevant consideration,
ignoring relevant consideration, mixed considerations, malice and improper purpose. 118

In United Kingdom, there is excessive interference by the courts which has the tendency to
stall the administrative efforts and increase the burden of the courts. In the United States of
America certain discretionary powers are absolutely outside the jurisdiction of the courts,
which makes administrative officials completely unaccountable for some actions/omissions.

114
Coal Exporters Association of the United States v. United States 745 F. 2d 76
115
WNCN Listeners Guild v. FCC 610 F. 2d 838
116
Charles H. Koch Jr, ‘Judicial Review of Administrative Discretion’ (1985) 54 Geo Wash L Rev 469
117
Chief Constable v. Evans (1982) 3 All ER 141: (1982) 1 WLR 1155
118
C.K. Thakker (Takwani), ‘Judicial Review of Administrative Discretion’, Eastern Book Company (2007)
Consequently, such practices should not be adopted in our country. Hence, India should
continue its current practice.
27