The Author of this blog is Mr. Shreyas Piplani of Fairfield Institute of Management & Technology, New Delhi 

The administrative techniques pursued by the government are the same as were cast in a concrete mould more than a century ago. Files and minutes still go perpetually from official to official and from ministry to ministry. As a result, nothing moves except the river Ganges.


The concept of administrative Law has emerged in our country for preventing the misuse of powers that are provided to the executive as per the Indian Constitution. As every time it is not always possible to follow the concept of Separation of Powers, these powers have been distributed due to overburden of work over these organs. Taking, the instance of the legislative organ into account, the authority of a legislature is to make laws, rules and regulations for the working of country, therefore, a legislature cannot foresee the consequences as a result of which that power is vested given in the hands of the executives they, in turn, take chances to misuse it. The primary focus of the Administrative law is over the executive body of the country.

The sole purpose of the Administrative law is to ensure proper and reasonable control over the powers of the administrative bodies working in the country fairly and efficiently. It can be connoted as Quasi-legislation or Quasi-judicial as it takes responsibility to act within their power and beyond the power to which it is vested. A proper and careful glance of the remedies available in the law paves a way to help those who are affected by administrative authorities of the country for proper implementation and enforcement efficiently and peacefully.


The term ‘Discretion’ in daily life means choosing from among a variety of available alternatives without any reference to a predetermined criterion, no matter how fanciful that choice may be. A person who is writing his/her will have the discretion to dispose of his property in any way, no matter how arbitrary or luxurious the property may be. But, the term ‘discretion’, when coupled with the word ‘administrative’ somewhat gives it a different color. ‘Discretion’ in this sense means choosing from amongst the various available alternatives but concerning the rules of reason and justice and not according to personal whims. Such exercise is not to be arbitrary, vague, and fanciful, but legal and regular.[1]

The problem of administrative discretion is a complex one. It can be rightly said that, under an intensive form of government, the government won’t be able to function properly, without the exercise of some discretion by the administrative officials. But it is equally true that absolute discretion is a ruthless master. It is more destructive of freedom than any of man’s other inventions.[2] Since the advent of the Indian constitution, there has been a continuous conflict between the claims of the administration for having absolute discretion and claiming its subjects to be a reasonable exercise of it.


The Indian courts have developed effective parameters and criteria for the proper exercise of the discretionary power of these authorities. The conspectus of the judicial behaviour remains halting, variegated and residual, and lacks the activism of the American courts. Judiciary exercise control over the administrative discretion in two ways:

·         The Stage of Delegation of Discretion 

The judiciary always tends to keep control over the delegation of the discretionary power of the administrative authorities by keeping adjudication upon the constitutionality of the law by which powers are delegated to them with the reference to the fundamental rights provided under the part III of the Indian Constitution. Every law and decision passed by any authority of India, if passed, and found to be inconsistent with the fundamental rights envisaged under the constitution shall be declared void ab-initio. Therefore, the law keeps a check over the administrative authorities and could be declared ultra vires to Article 14 & 19, and other provisions envisaged in the Indian Constitution.

·         The Stage of Exercise of Discretion

In India, there is no Administrative procedure Act which provides the power of judicial review over the exercise of the discretion power of the administrative authorities. Therefore, the courts have developed some formulations to control the exercise of administrative discretion.


These formulations are mentioned below:

       Failure of the authority over exercise of discretion.

       Failure of the authority in case of excess or abuse of discretion.


In this formulation, the courts can exercise control over the administrative discretion if the authority has failed to control its power or has put a fetter on its exercise, or has exercised its power in a wrongful jurisdiction. The authority in which the discretion is vested can be compelled to exercise it, but not in a particular manner.

In the case of Purtabpore Co. Ltd. v. Cane Comr. Of Bihar,[3] is a notable case in point. In the impugned case, the cane commissioner, who had the power to reserve sugarcane areas for the respective sugar factories, at the dictation of the chief minister, excluding 99 villages from the areas reserved by him in favor of appellant-company. The court quashed the exercise of discretion by the cane commissioner because he abdicated his power by exercising it at the dictation of some other authority; therefore, it was deemed that the authority had not exercised its discretion at all. It is immaterial that the authority invested with the discretion itself sought the instructions.[4]

However, this does not mean that the administrative authority cannot frame broad policies for the exercise of discretion. The authorities in the purported exercise of its discretion, it must neither do what it has been forbidden to do nor must it do what it has not been authorized to do. It must act in good faith, must have regard to all relevant considerations, and must not be influenced by irrelevant considerations, must not seek to promote purposes alien to the letter and the spirit of the legislation that gives it the power to act, and must not act arbitrarily and capriciously.[5]


There are instances in which the policies and the rules passed by the administrative authorities overshadow the constitutional provisions of the constitution. If the discretion of the administrative authorities deems to be inconsistent with the fundamental rights available to the citizens of India, it becomes the duty of the courts to take action and safeguard the constitution.

In the case of the State of Punjab v. Khan Chand,[6] The truck of Khan Chand was requisitioned by the district magistrate, Rohtak for famine relief work. He challenged the constitutionality of the East Punjab Requisition of Movable Property Act, 1947, under which the action was taken that the act completely violates the right of equality before the law under article 14 of the constitution of India. The court upheld the contention, held that the Act confers wide discretionary power upon authorities by not laying down guidelines for movable property. Even the words ‘Public Purpose’ was not mentioned anywhere. Therefore, the arbitrariness and power to discriminate are writs large on the face of the act and fall within the mischief which Article 14 seeks to prevent. 

In certain situations, the statute, though it does not have the discretionary power to the administrative authority to take action, may give discretionary power to frame rules and regulations affecting the rights of the citizen. The bestowal of such discretion can be controlled by the courts on the grounds of ‘Excessive delegation’.[7]

It has been firmly established that the discretionary powers given to that governmental or quasi-judicial authority must be hedged by policy, standards, procedural safeguards or guidelines, failing which the exercise of discretion and its delegations may be quashed by courts. This principle has been reiterated in many cases.[8] However, it is redundant that the guidelines must be ex facie found. It is sufficient if guidelines could be gathered on the wholesome reading of the statute and rules, regulations, orders, or notification issued thereunder.[9] 


It can be concluded by saying that whenever a public authority is invested with the powers to make an order which can prejudicially affect the right of the individual, then, whatever may be the nature of the power, whatever may be the procedure prescribed and whatever may be the nature of authority, the proceedings of the public authority must be regulated by the analogy of rules governing the judicial determination of disputed questions.[10]

[1] Sharp v. Wakefield, 1891 AC 173 (HL.).

[2] United States v. Wunderlich, 96 L Ed 113.

[3] (1969) 1 SCC 308.

[4] Anirudhsinhji Karansinjhi Jadeja v. State of Gujarat, AIR 1970 SC 1896.

[5] Indian Rly. Construction Co. Ltd. v. Ajay Kumar, (2003) 4 SCC 579.

[6] (1974) 1SCC 549.

[7] Hamdard Dawakhana v. Union of India, AIR 1960 SC 554

[8] R.R. Verma v. Union of India, (1980) 3 SCC 402.

[9] M.J Shivani v. State of Karnataka, (1995) 6 SCC 289.

[10] M.A. Rasheed v. State of Kerala, (1974) 2 SCC 687.