Nature, Scope and Extent of Judicial Review of

Transcript:Nature, Scope and Extent of Judicial Review of:
Nature, Scope and Extent of Judicial Review of Exercise of Administrative Discretion Santosh K Upadhyay Santoshupadhyay.jnu@gmail.com Nature and Scope of Judicial Review of the Exercise of Administrative Discretion The pattern of judicial review of exercise of administrative discretion seems to balance the following two values. Since the discretion has been conferred upon the concerned public authority under the statute and not upon the Courts, Courts have no power to hear appeals against the decision of the Authority. This discretion must be of the authorities and not of the Courts. 2. It is normal presumption that Legislature is always intended that Authority would exercise the discretion for the purpose and in accordance with the policy prescribed in the statute. There is an inherent presumption that discretion should be exercised for the public purposes and in the public interest. From this point, courts get their jurisdiction to impose legal bounds even to the most general discretionary powers. Contd. Courts are not the appellate forum where correctness of the order can be challenged but they are only review forum to enquire whether the discretion has been exercised by giving proper consideration to relevant facts and in bonafide manner. That it must not be affected by extraneous considerations. Courts can compel the authority to exercise the discretion by applying his/her mind but it can not specify its own choice indicating the ultimate outcome of the discretion. Courts do not go into the merits of the exercise of the administrative discretion. Courts do not determine the subjective satisfaction of the Authority exercising discretion. It does not mean that exercise of the administrative discretion is completely beyond judicial scrutiny. The exercise of discretionary power is not uncontrolled and there is no concept of absolute or unfettered exercise of statutory discretion. Absolute power is anathema under our constitutional order and naked and arbitrary exercise of power is bad in law – Krishna Iyer J. The power to exercise discretion does not mean the power to exercise discretion arbitrarily or exercise it on extraneous or irrelevant considerations or not to exercise discretion. Discretion means to discern between right and wrong. Therefore the person having the discretionary power is bound by the rule of reason and law. Based on these general understandings, Courts have evolved many criteria and standards to check the proper legal exercise of the discretion. But the final point is well settled that Court does not