The functions of a State can be classified as – traditional ( securing citizens from external and internal aggression), modern (providing physical services and regulatory functions, management functions, public administration, etc).

For performing such functions, Montesquieu, in his De l' Espirit des loix (1748)[1], provided for 3 sorts of powers- executive or administrative, legislative , judicial exercised by the State .

That the Indian Constitution too, implicitly, provides for such Doctrine of Separation of Powers as can be understood from Supreme Court decisions[2] dealing with the issue, according to which, the Legislature enacts the law, the Executive administers the law, the Judiciary interprets and declares the law.

The Donoughmore Committee Report (1932) [3] laid down the respective functions of the administration and judiciary as – administration of public policies and resolving disputes arising between parties and application of law, thereby protecting administration and judiciary from encroaching into each other's territory. However the practical impossibility of the distinction was also accepted by the committee.

This separation has however helped identify for practical purposes , the functions of executive or administrative body as the functions not performed by the other organs of the State. Considering the reality that the administrative action is the meeting point of 3 types of governmental function, 3 categories of administrative action can be recognised:

• Quasi-legislative (functions of subordinate legislation, issuing administrative instructions, etc )
• Quasi-judicial (administrative agencies adjudicating on interests of private individuals eg. Disciplinary proceedings, forfeiture of pension gratuity, etc)
• Purely Administrative or rule application action (situation-specific function, with no procedural obligation to collect evidence or consider arguments eg. Fact-finding action; requisition , acquisition , allotment ; issuing directions not having force of law to subordinate officers, etc ).

All such functions directly or indirectly affect the rights and interests of individual and the general public , which, in turn, necessitates the judicial intervention into the same. There is scope for exercise of administrative discretion in all three categories however the scope for judicial control or regulation upon them is limited.

For instance, the judicial review of legislative action is restricted- mandamus cannot be issued to compel executive's quasi-legislative action, subordinate legislation cannot be challenged for being passed without hearing affected parties, government policies generally, cannot be judicially reviewed, court cannot enter into merits of administrative decisions etc.

While the notion of unfettered administrative discretion was acceptable to English Courts in pre-Constitution British India, as is evident from the deliberate exclusion of the power of judicial review of administrative action by delimiting the jurisdiction of the judicature by the governing Act -Government of India 1935, the same was unacceptable in independent India.

From the assertion made by B.R Ambedkar, chairman of the Drafting Committee, in the Constituent Assembly Debates[4], that the provisions for judicial review and writ jurisdiction are the soul and heart of the Constitution and from the insertion of the Articles 32,226,227 into the Constitution of India as prerogative writs, it is clear that the drafters of the Constitution of India consolidated their intention of keeping the discretionary authority of the government, under control.

Such control, is exercised by the judiciary in the form of judicial review .

Tools And Techniques Of Judicial Review Of Administrative Discretion

Apart from the Writs, filing for Appeal (Article 136 of The Constitution of India) , Reference , Injunction (Specific Relief Act ,1963), Declaration, suit for Tortious action of administration (under Law of Tort) are some of the statutory and constitutional tools used to bring individual complaint against administrative action within the purview of judicial review :-

• Civil Remedies that can be granted to control administrative discretion by judiciary are injunction, declaratory reliefs, damages.
• Sections 36 to 42 of the Specific Relief Act, 1963 provide for temporary, perpetual as well as mandatory injunctions. Judicial review of judicial, quasi-judicial, discretionary or ministerial and even purely administrative actions can also be done in the course of granting injunctions.
• Under the Civil Procedure Code, 1908, suit for damages may be filed in a civil court of first instance against administrative action.
• Supreme Court may allow a Special Leave Appeal under Article 136 against decisions of administrative authority provided, two conditions are fulfilled- proposed appeal is against judicial/quasi-judicial or purely administrative order and determination must be made by a court or tribunal.
• Article 300 of the Constitution of India and different caselaws such as Kasturilal v. State of U.P [5]; State of Rajasthan vs Vidyawati [6] etc. makes State vicariously liable for acts done by its servants. Article 12 brings within the scope of the word "State", administrative authorities other than the government. Article 131 provides for jurisdiction of Supreme Court in cases of disputes arising between Indian states or state and the Government of India or between states and said government.

However , since the commencement of the Constitution , Writs ( under Articles 32,226) have been the most used tool for redressal against administrative actions; even though the practice has been to exhaust all alternative remedies available before filing writ petitions.

Writs Are Of 5 Kinds:

1. Writ of Habeas Corpus can be issued by court for calling upon the person who, by exerting administrative authority is detaining a person so that he can let the court know the grounds of such detention. In case the court finds it to be illegal detention, on grounds of mala fides or non-application of mind etc, it can direct the authority to set him free.
    
2. Writ of Mandamus can be issued by superior court to any government, corporation or public authority to exercise jurisdiction that they may have declined wrongfully and enforce performance of their statutory duties and discretion lawfully. Its scope is however limited to enforcement of public duty.
    
3. Writ of Quo-Warranto may be issued to exert judicial control on the executive actions regarding statutory appointments to public offices, whereby courts inquire about the authority of a person holding said office. If the possession of office is found to be wrongful, the court can direct to oust the usurper.
    
4. Writ of Certiorari is issued by the court to require the lawful court-certification of records of administrative actions with the object to quash the action of the administrative authority if it has exercised its quasi-judicial power unlawfully or outside jurisdiction or, in violation of natural justice principles or fundamental rights, thereby causing grave injustice.
    
5. Writ of Prohibition can lie only in respect of judicial and quasi-judicial proceedings and can be issued on same grounds as that of certiorari and except the ground of error of law apparent on the face of record. The court prohibits arbitrary administrative actions against individuals by way of this preventive remedy.

Grounds Upon Which The Said Tools Of Judicial Review Of Administrative Actions Are Used

1. Ultra-vires: According to the doctrine of ultra-vires, if an authority acting under statutory powers, does acts forbidden or not permitted by the statutes, i.e., acts beyond the scope of authority given to it, the administrative decisions taken by that body in the course of exercise of public functions, will be struck down by the courts. In Ajay Kumar Banerjee v. Union of India [7]; Dwarka Nath v. Municipal Corporation [8] etc. Cases, it was held that the doctrine of ultra vires applies where the administrative legislate on was found ultra-vires the enabling Act. In Ram Prasad v. State[9], it has been stated that where the administrative rule conflicts with the enabling act provisions, the doctrine can be invoked.
2. Abuse of discretionary powers: When an administrative body does not exercise its power of discretion for the purpose intended by the Legislature, it is said to be abusing its discretionary power. Abuse of power involves:
   • Colourable exercise of power: When the administrative authority is exercised under the guise of an authorized purpose, actually effecting an improper purpose, it is judicially reviewable for colourable exercise of power.
   • Irrelevant consideration: Administrative discretionary decisions, taken on considerations irrelevant to the purpose for which the statute conferred the power of discretion upon the administrative authority or decisions taken wholly upon extraneous circumstances, are bound to be quashed by the court.
   • Improper purpose: If the administrative authority exercises discretionary power for a different, misconstrued or mistaken purpose than that intended by Legislature or for malafide purpose, then the actions taken by it may be quashed for exercising power for improper purposes.
   • Errors of law: The court may review an administrative decision where there's been an error in law, obvious and apparent on the face of records.
   • Jurisdictional error: The administrative authority cannot exceed or mis-assume the limits of its jurisdiction, if it does, judicial review of its actions or decisions can be made.
   • Unauthorized delegation: The general rule is that discretionary power can be exercised only by authority to which it has been delegated.
3. Proportionality: Lord Diplock suggested the doctrine of proportionality as a ground for judicial review. In S.K Satibhushan Bariyar v. State of Maharashtra [15], it was observed that the courts while applying this doctrine, may quash administrative exercise of discretionary power resulting in disproportion between object achieved and means used.
4. Legitimate expectation: This lays emphasis on fairness on public administration & right to fair hearing before a negative decision. It also imposes a duty on public authorities to act fairly by taking into consideration factors relevant to legitimate expectations. Expectations can be procedural and substantive. In the landmark cases - M/S Sethi Auto Service Station & Anr. V. Delhi Development Authority & Ors. that was decided on 17 October, 2008; National Buildings Construction v. S. Raghunathan & Ors., S. P. Singh & Anr. (1998), it was held that the government and its administrative departments are expected to honour their statement of policy and treat citizens with personal consideration devoid of abuse or discretion.
5. Unreasonable exercise of discretionary power: Lords Diplock, Greene recognize unreasonableness of action as a strong ground for judicial review. Supreme Court ruled in Khoday Distilleries Ltd. v. State of Karnataka[16] that the act of administrative authority can be struck down if its manifestly unreasonable and arbitrary. In Suman Gupta v. State of Jammu and Kashmir AIR 1983 SC 1235, it was held that exercise of all administrative powers must be structured within a system of controls informed by both relevance and reason.
6. Estoppels: The doctrine of estoppels is an equitable doctrine that provides that a party is estopped from going back on its promise or assurance after the other party to it has acted on it, except in exceptional circumstances. The principle of equity was laid down in Central London Property Trust Ltd. v. High Trees House Ltd. (1947) 1 KB 130, which was adopted in subsequent Supreme Court cases Union of India v. Anglo-Afghan Agencies (1968), Turner Morrison and Co. Ltd. v. Hungerford Investment Trust Ltd. (1972). The court has held government bound by its promise which may include contractual, administrative or statutory obligation, as was seen in the case - Moti Lal Padam Path Sugar Mills Co. Ltd v. State of U.P (1979).
7. Procedural impropriety: Justice has two aspects- substantive, procedural, in the administrative law. Procedural justice deals with structure, accuracy, quality of the decision-making process. Procedural fairness, derived from the natural justice principles is necessary in administrative actions and decisions, in the absence of which the action or decision becomes subject to judicial review. Public authorities must give either notice of their administrative consideration or decisions or actions taken or to be taken against individuals or an opportunity to the individuals to show cause why such step should not be taken as was held in Urban Housing Co. v. Oxford City Council. In Siemens Engineering v. Union of India AIR 1976 SC 1785, it was held that the non-compliance of recording reasons in support of orders passed in exercise of quasi-judicial authority by administrative authority is a substantial ground for judicial review.
8. Non-application of mind: When the administrative authority mechanically exercises discretion or does not comply with the statutory pre-condition for exercising discretionary power or acted under dictation of superiors or fettered its own discretion in any manner, the same can be considered a case of non-application of mind, a ground for judicial review:
   • Acting under dictation:  The exercise of discretion excludes, by principle, any scope for dictation and the necessity of the discretionary authority to act under dictation.
     
     In Indian Construction Comp. Ltd v. Ajay (2003) 4 SCC 579,Supreme Court struck down the order passed by administrative authority which had acted under dictation of superior authority as it had amounted to its surrender of independence and discretionary power.
      
   • Fettering of discretion: When an administrative authority having discretion imposes fetters on its discretion by rigid application of certain rules of policy without considering merits of each case , it amounts to non-application of mind, gives rise to reason for judicial review. Supreme Court observed in Somabhai v. State 1977 CrLJ 1523, that generalization on matters relying on discretion in the attempt to discover formulae of universal application when facts are bound to differ in each case frustrates the purpose of conferment of discretion.
      
   • Irrationality: The Supreme Court in a landmark case of Indian Railway Construction Comp. Ltd v. Ajay (2003) 4 SCC 579 at 591 , explained that a decision can be considered irrational and subject to judicial review if , it is so outrageous in its defiance to logic or accepted moral standards, that no sensible person who had applied his mind to the question in issue, could have arrived at the same conclusion.

Any of these can be considered a ground by judiciary in exercising control on administrative action. But there are certain limitations upon the scope of such judicial review and the power of judicial review by the court

Limitation On The Judicial Power Of Review Of Administrative Discretion

The judicial self-restraint principle that limits the scope of judicial review has obtained support from the likes of Benjamin Cardozo , Harlan F. Stone, Khanna J. , V.R Krishna Iyer J, etc.

Policy decisions of the government and cases involving political question, are two main areas that the judicial review kept out of. This implicit limitation originated in USA in Marbury v.Madison (1803)[21] case where C.J Marshall opined that some of the Secretary's actions for instance , advising the President on policy matters are unreviewable by a Court of law. Subsequently the Indian cases of R.K Garg v. Union of India(1981) 4 SCC 676; G.B Mahajan v. Jalgaon Municipal Council ( 1991) 3 SCC 91; Balco Employee's Union v.Union of India (2002) 2 SCC 333 etc.

- followed suit.

Balco case holding that the wisdom and advisability of economic policies are ordinarily not to undergo judicial review unless the policy is shown to be contrary to any statutory provision of the Constitution has to some extent, diluted the executive-elitism enabling the State actions to be outside the purview of judicial scrutiny .

In the case: Centre for Public Interest Litigation and Others v.Union of India (2011) 1 SCC 560 , the Supreme Court however , laid down boldly that if the state-policy and its implementation goes against the public interest or violates constitutional principles, it is the duty of the court to exercise its judicial power of review to protect larger public interests.

That the State is not above the People , is implicit in the Preamble to the Constitution of India . Therefore, the actions of the State , especially a democratic State, cannot be beyond the reach of judicial review. Though this notion has been affirmed by the previous precedents, as is evident from the judicial widening of the grounds of judicial review ; the judicial pronouncements of recent times[22] are seen to be noticeably departing from it.

Conclusion
Administrative discretion can be defined as such freedom exercised by the administrative authority to decide upon a certain matter or issue pertaining to executive functions . Administrative discretion is exercised in most administrative actions . There arises the need for judicial review, to ensure that such exercise is legal and can be regulated to prevent encroachment upon their interests and rights , in general to better serve the public. To summarise , Judicial review of Administrative action, therefore means the review by the courts of administrative action to ensure their legality.

It is safe to conclude that there has been widening of the grounds of judicial review of administrative discretion at the hands of the Judiciary over the course of time and the recent stagnation comes as a surprise. The Executive or the Government of India, has always been a very powerful administrative authority . However with the passage of time the political repercussions and considerations are seen to shrink the scope of judiciary ; alongside the judiciary's unwarranted self- imposed restraints in certain cases.

But the very philosophy behind the doctrine of separation of powers, ie. the checks and balances between the three powers was to maximize the well-being of the People of the country. The idea was never to give any primacy of one organ over the other. The erosion of such an essential feature[23] of the basic structure of the Constitution ie. judicial review, is thus happening gradually and subtly, which is , in its turn threatening the current balance between the organs of the State, pushing our democratic nation towards the brink of executive-oligarchy.

Table Of Cases:

• Golak Nath vs State of Punjab AIR 1967 SC 1693
• Bandhua Mukti Morcha v.Union of India AIR 1984 SC 802
• Ajay Kumar Banerjee v. Union of India AIR 1984 SC 1130; (2000) 5 SCC 45
• Dwarka Nath vs. Municipal Corporation, AIR 1971 SC 1844
• Ram Prasad vs State AIR 1952 All 843
• Supreme Court Employees Welfare Association v. Union of India AIR 1990 SC 334
• State of Mysore v P.K. Kulkarni AIR 1972 SC 2170
• Syed Yakoob v K.S. Radha Krishnan AIR 1964 SC 477
• S.K Satibhushan Bariyar v State of Maharashtra (2009) 6 SCC 498
• Ram Singh v State of Uttar Pradesh (2009) 1 SCC 755
• M/S Sethi Auto Service Station & Anr Services Station v DDA CIVIL APPEAL NO. 6143 OF 2008
• National Building Corp. v R. Raghunathan ( decided on 28 August 1998)
• Khoday Distilleries Ltd. v. State of Karnataka (1996) 10 SCC 304,
• In Suman Gupta v State of Jammu and Kashmir AIR 1983 SC 1235
• Central London Property Trust Ltd. v High Trees House Ltd. (1947) 1 KB 130
• Union of India v. Anglo-Afgan Agencies (1968) S.C.R (2) 366
• Turner Morrison and Co. Ltd. v Hungerford Investment Trust Ltd. 1972 AIR 1311.
• Moti Lal Padam Path Sugar Mills Co. Ltd v State of U.P (1979) 2 SCC 409.
• Urban Housing Co. V Oxford City Council (1940) CH 70.
• Siemens Engineering v Union of India AIR 1976 SC 1785
• Indian Construction Comp. Ltd v. Ajay (2003) 4 SCC 579
• Somabhai vs State 1977 CrLJ 1523
• Indian Railway Construction Comp. Ltd v. Ajay (2003) 4 SCC 579 at 591
• Marbury v Madison 5 U.S (1 Cranch) 137 (1803)
• RK Garg v Union of India (1981) 4 SCC 676
• G.B Mahajan v Jalgaon Municipal Council ( 1991) 3 SCC 9
• Balco Employee's Union v Union of India, .(2002) 2 SCC 333
• Centre for Public Interest Litigation and Others v Union of India (2011) 1 SCC 560
• State v. Safoora Zargar (2020)
• Manohar Lal Sharma v Narendra Damodardas Modi Writ Petition 298 OF 2018
• In Re: Problems And Miseries Of Migrant Labourers Suo moto Writ petition ( Civil) No.(s). 6/2020

Abbreviations:

AIR	All India Reporter
CH	Chancery Davison
Cri LJ	Criminal Law Journal
DDA	Delhi Development Authority
KB	King's Bench Divison
SC	Supreme Court
SCC	Supreme Court Cases
SCR	Supreme Court Reports

Bibliography

• Constitution of India (Updated)
  Available at: http://legislative.gov.in/sites/default/files/COI-updated.pdf (Last visited on 10 July, 2020)
• Committee On Ministers' Powers Report
  "1932 Report Of The Committee On British Parliament Ministers' Powers Cmd Paper No 4060"
  Available at : https://archive.org/stream/1936ReportOfTheCommitteeOnBritishParliamentMinistersPowersCmdPaperNo4060/1936 Report of the Committee on British Parliament Ministers' Powers - Cmd paper no 4060_djvu.txt (last visited July 10, 2020).
• Constituent Assembly Debates on December 9, 1948
  Available at : https://www.constitutionofindia.net/constitution_assembly_debates/volume/7/1948-12-09. (Last visited July 11,2020)
• Pdf Basic Features Of The Constitution - Supreme Court Cases
  Available at :- http://www.supremecourtcases.com/index2.php?option=com_content&itemid (Last visited July 10, 2020)
• Montesquieu, Charles Louis De Secondat De & Anne M. Cohler , The Spirit Of The Laws ( Cambridge Univ. Press , Cambridge ,U.K , 2009)
• Sreemanshu Kumar Dash, "A case study on writ of mandamus in matters of public interest litigation with special reference to continuous mandamus"
  Available at: https://shodhganga.inflibnet.ac.in/handle/10603/284820 (Last visited July 11,2020)
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• Sharma, Jai Narain, "Judicial Review of Administrative Actions through Writs: Recent Trends", Available at: https://shodhganga.inflibnet.ac.in/handle/10603/132460 (Last Visited July 11,2020)
• The concept of State action under article 12 of the IndianConstitution , Available at : https://www.amu.ac.in/emp/studym/99999698.pdf (Last visited July 11,2020)

End-Notes:

• Montesquieu, Charles Louis De Secondat De & Anne M. Cohler , The Spirit Of The Laws ( Cambridge Univ. Press , Cambridge ,U.K , 2009)
• Golak Nath vs State of Punjab AIR 1967 SC 1693;
  Bandhua Mukti Morcha v.Union of India AIR 1984 SC 802 etc.
• Committee On Ministers' Powers Report , "1932 Report Of The Committee On British Parliament Ministers' Powers Cmd Paper No 4060", Available at : https://archive.org/stream/1936ReportOfTheCommitteeOnBritishParliamentMinistersPowersCmdPaperNo4060/1936 Report of the Committee on British Parliament Ministers' Powers - Cmd paper no 4060_djvu.txt (last visited July 10, 2020).
• Constituent Assembly Debates on December 9, 1948 , Available at : https://www.constitutionofindia.net/constitution_assembly_debates/volume/7/1948-12-09.
• 1965 AIR 1039
• 1962 SCR Suppl. (2) 989
• AIR 1984 SC 1130; (2000) 5 SCC 452
• AIR 1971 SC 1844
• AIR 1952 All 843
• AIR 1990 SC 334
• AIR 1972 SC 2170
• AIR 1964 SC 477
• (2009) 6 SCC 498
• (2009) 1 SCC 755
• (2009) 6 SCC 498
• (1996) 10 SCC 304
• (1968) S.C.R (2) 366
• 1972 AIR 1311
• 2 SCC 409.
• (1940) CH 70.
• 5 U.S (1 Cranch) 137 (1803)
• Manohar Lal Sharma v. Narendra Damodardas Modi WRIT PETITION 298 OF 2018 ; State v. Safoora Zargar (2020), In Re: Problems And Miseries Of Migrant Labourers Suo moto Writ Petition ( Civil) No.(s). 6/2020 etc.
• Pdf Basic Features Of The Constitution - Supreme Court Cases, Available at: http://www.supremecourtcases.com/index2.php (last visited July 10, 2020)