September 17, 2021

Judicial Control of Administrative Discretion – Control at the Stage of Delegation of Discretion


Discretion means the liberty to act according to one’s pleasure, or at one’s own will. Administrative discretion thus means the authority vested in the Executive, the public officials who administer the government, to perform certain functions, make certain decisions at their own judgment, and exercise certain powers.[1] It is a common tendency in modern democracies to confer discretionary power on the government or administrative officers.[2] In order to ensure that the operation of such discretion does not disrupt the authenticity of any normally functioning democracy, it is necessary that there is a body that is established or which keeps a check on the functioning of the administrative discretion. Justice Douglas once stated: “where discretion is absolute, man has always suffered…Absolute discretion…is more destructive of freedom than any of man’s other inventions.”


The act of the legislature to grant discretionary power to the Executive is clearly based upon the reliance placed upon the power of judgment of that authority. The legislature thus directly eliminates a direct attack on the exercise of the discretionary power unless a right of appeal to the courts is expressly provided by the legislature. But the absence of such provision, one that provides for appeal does not mean the immunization of the exercise of discretion from judicial review. In the words of Prof. H. W.R. Wade,

“If the state is to care for its citizens from the cradle to the grave, to protect their environment, to educate them at all stages, to provide them with employment, training, houses, medical services, pensions and in the last resort food, clothing and shelter, it needs a huge administrative apparatus. Relatively little can be done by merely passing Acts of Parliament and leaving it to the courts to enforce them. There are far too many problems of detail and far too many matters which cannot be decided in advance. No one may erect a building without planning permission, but no system of general rules can prescribe for every case. There must be discretionary power.”[3]


The necessity to grant various discretionary powers to the administration also requires to devise systems to control their exercise so as to prevent their abuse. A system of checks and balances based on a broad distribution of governmental functions into a three-way classification: legislative functions, which concerns the making of laws, administrative functions, which concerns the execution of laws and judicial functions, which concerns the application of laws after facts have been ascertained correctly, is generally imputed to Montesquieu. Judicial control of administrative power is required to prevent abuse or non exercise of power by government or executive organ.

Although there are no specific provisions in the Constitution of India containing this unbending separation of powers on the American pattern, it is generally accepted that such a separation of functions in a broad sense does prevail in our Constitution.[4] One of the basic principles that our judiciary has to keep in mind while exercising its control is that it can never go into the merits of the decision but has to, rather, decide upon the legality of the decision.[5] There are various grounds on which the judiciary will have to intervene in the exercise of discretionary power for judicial control administrative discretion. These grounds include:

(i) Abuse of discretionary power:

When discretionary power is conferred on authority, it must be exercised in accordance with the law. As Markose put it, “when the mode of exercising a valid power is improper or unreasonable, there is an abuse of power.” There are certain circumstances from which abuse or excess of discretionary power can be inferred. These may be acting without jurisdiction, exceeding jurisdiction, an arbitrary action, mala fide actions, improper motive, unreasonableness, non-observance of principles of natural justice, etc.

(ii) Non-exercise of discretion:

judicial control administrative discretion, as non-exercise of discretion arises either

(a) When the authority delegates his power to a subordinate without any statutory authority, or

(b) When someone acts under dictation from superiors without any statutory authority.

The proper test of deciding whether a delegation is valid or not is to see if the authority who delegates had the power to so delegate. If they did, then the action is valid and justified, but if they did not, the action should be invalid and unlawful.[6]


Where a statute confers discretionary power on an administrative authority and does not expressly provide for delegation of such power, discretion must be exercised only by the authority on whom such power is bestowed. Further delegation of such power to a subordinate or other authority will be a direct attack on the principle, delegatus non protest delegare, which means that a delegatee cannot further delegate. In Vine v. National Dock Labour Board[7], the House of Lords set aside the dismissal of a registered dock worker on the ground that instead of deciding the case itself, the Dock Labour Board on whom the power was conferred had, in fact, entrusted the whole matter to a disciplinary committee.

Invalidity of delegated legislation may arise out of any of the following grounds:[8]

(i) The enabling Act being ultra vires: Any law that violates the Constitution shall be ultra vires. The constitutional prohibition which has thus been infringed may affect the competence of the Legislature to enact such law or may merely act as a check on the power which is within its competence. There is a limit beyond which delegation may not go. The essential powers of legislation shall not be delegated.

(ii) Subordinate legislation in violation of the Constitution: There may be some instances in which the enabling Act may not be infringing upon the constitutional provisions, but the subordinate legislation might be. Principles that govern the constitutional validity of legislation emerging directly from the Parliament will also be applicable in determining the validity of a subordinate law. When a rule made under the enabling Act is found to be ultra vires on the ground of being violative of constitutional provisions, the Act is not to be rejected. Only the offending rule shall be terminated.[9]

(iii) Subordinate legislation being ultra vires of the delegating Act:The terms of delegation limit the delegated power. If the rules are not within the ambit of the powers entrusted by the Legislature, they are liable to be challenged as ultra vires. The subordinate delegation must not, therefore, be repugnant to, or in conflict with, the delegating Act.

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For law notes, Click Here.

[1] R.S. Gupta, Administrative Discretion and Judicial System, 26 Indian Journal of Public Administration 1100, 1100 (1980).


[3] H.W.R. WADE, ADMINISTRATIVE LAW, 4 (4th ed.).

[4] In re. Delhi Laws Act A.I.R., 1951, S.C. 332.

[5] N.K. Jayakumar, Limits of Judicial Activism vis-a-vis Administrative Discretion: A Preliminary Inquiry, 26 Journal of Indian Law Institute 55, 56 (1984).

[6] Rakesh Chandra, Administrative Discretion, 2 International Journal of Academic Research and Development 129, 134 (2017).

[7] (1957) A.C. 488.

[8] V.N. Shukla, Judicial Control of Delegated Legislation in India, 3 Journal of the Indian Law Institute 357, 359 – 364 (1959).

[9] A.I.R. 1952 Nag. 58.

Author Details: Sidra Javed

The views of the author are personal only. (if any)


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