Necessity of Administrative Discretion

  • It is humanly impossible to lay down a rule for every conceivable eventuality in the complex art of modern government.

It is necessary for individualization of the administrative power.

Any intensive form of government cannot function without the exercise of some discretion by the officials.

  • But absolute discretion is a ruthless master. It is more destructive of freedom than any of man’s other inventions. S. v. Wunderlich (1951).
  • Therefore, there has been a constant conflict between the claims of the administration to an absolute discretion, and the claims of the subjects to a reasonable exercise of it.
  • Discretionary power by itself is not pure evil but gives much room for misuse.

Remedy lies in tightening the procedure and not in abolishing the power itself.

  • The need for judicial correction of unreasonable administrative discretion cannot be overemphasized.

Words used to confer discretion

  • Adequate, advisable, appropriate, beneficial, competent, convenient, detrimental, expedient, equitable, reputable, safe, sufficient, wholesome, deem fit, prejudicial to safety and security, satisfaction, belief, efficient, public purpose, etc.
  • Or their opposites.


Judicial control over administrative discretion refers to

Appeal vs. Judicial Review

Courts are concerned with whether the decision (of the administrative authority) is good on the merits.

The statute itself may confer a right of appeal on the individual affected by the decision made.

This right of appeal operates independently of the right of review, and must normally be exercised before the courts will consider exercising their powers of judicial review.

If the legislature has provided for a specific remedy then the intention of the parliament in providing that remedy must be fulfilled, before resort is had to the courts’ powers of review.

Ordinary jdx of the court.

An appeal may be made on both the law and the facts of the cases so that a full rehearing may take place.

The jurisdiction and powers of the appellate court depends on particular provision made in the relevant statute and appeal is concerned with the merits. The appellate court is usually empowered to substitute its own decision for that body appealed from.

Judicial Review
Judicial review is concerned not with the decision on its merits, but with the decision-making process.

Courts are concerned with the correctness of the decision in law, in other words, with the objective consideration of the legality of the decision-making. The principles of legality themselves provide the judges with enormous flexibility.

Extraordinary jdx of the court.


Constitution of Nepal 2015- Article 133 – This provision applies to all administrative actions. It falls under the extraordinary jdx of SC, and review is done by a different judge than judge who decided earlier. The principles of review contained in this Article are recognition of judge-made principles, and hence are not inconsistent with the court-accepted grounds of judicial review but rather supplement it.

  • Exercise of Fundamental Rights
  • Exercise of legal rights, if another remedy is absent, or if another remedy is present but is inadequate or ineffective
  • Resolution of constitutional or legal question involving an issue of pubic right or interest
  • Ultravires– partially or in entirety, void ab initio or from decision date

Any law w/ the constitution

Provincial statute w/ federal statute

Local (municipality or village) statute w/ federal or provincial statue

Grounds for judicial review of administrative discretion/action

(i) Illegality- The decision-maker must correctly understand the law that regulates his decision-making power and must give effect to it. Otherwise illegal.

Lack of jurisdiction
Authority exercised jdx which did not belong to it

Excess of jdx.
Authority initially had the jdx but exceeded it

Abuse of jdx.
Administrative powers must be exercised fairly, in good faith for correct purpose, not malafide.

Failure to exercise jdx.
Failure or denial to exercise jdx.

(ii) Irrationality- The decision is so outrageous in its defiance of logic or of accepted moral standards that no sensible person could have arrived at such a decision.

– taking into consideration irrelevant material

– ignoring relevant material

– using power for improper purpose

– exercising power in malafide manner

(iii) Procedural Impropriety- The procedure for taking administrative decision and action must be fair, reasonable and just.

Where statute is silent, admin authorities must follow principles of natural justice which provide fair minimum procedures which must be followed

Rule against bias- No one should be made judge in his own cause
Rule of fair hearing- No one should be condemned unheard.

(iv) Proportionality- In any administrative decision and action, the end and means relationship should be rational. Administrative action must not be more drastic than it needs to be for obtaining desired result.

Whether relative merits of different objectives or interests have been appropriately weighed and fairly balanced
Whether the action was, in the circumstances, excessively restrictive or inflicted an unnecessary burden
(v) Unreasonableness- Either the facts do not warrant the conclusion reached by the authority, or the decision is partial and unequal in its operation.

– Facts do not warrant the conclusion reached by the authority

– Decision is partial and unequal in its operation.

Modes of Judicial Review of Admin Action/Discretion

Public law remedy

133 of constitution.
Certiorari, prohibition, mandamus, habeas corpus, quo warranto

Principle of laches, standing, alternate remedy

Private law remedy

(i) Injunction- as per ordinary law, for protection of rights. Nagarik adhikar ain 2012 rights also. Hence tool against admin discretion.

(ii) Declaratory Relief- Judgments and orders are usually determinants of rights in the actual circumstances of which the court has cognizance, and given some particular relief capable of being enforced. It is however, sometimes convenient to obtain a judicial decision upon a state of facts which has not yet arisen, or a declaration of the rights of a party without any reference to their enforcement. Such merely declaratory judgments may now be given, and the court is authorized to make binding declarations of tight whether any consequence is or could be claimed or not.

Public Interest Litigation

Locus standi/standing-liberisation of standing, laches, alternate remedy, public concern, court intervention/activism

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