Grounds of Judicial Review: Failure to Exercise Discretion

A policy that says "applications from persons over sixty will not be entertained" is lawful as a guide and unlawful as an absolute bar, if the statute conferred a discretion to consider each application.

Related forms of the same vice:

• Fettering by contract. An authority which contracts not to exercise a statutory discretion, or to exercise it in a particular way, cannot bind itself in that way, because the power is held for the public and not for the authority's own benefit.
• Fettering by estoppel. An assurance cannot prevent a public authority from performing a statutory duty, though it may found a legitimate expectation of being heard: [The Doctrine of Legitimate Expectation] and [Estoppel and Waiver against the Government].

Ground 3: unlawful sub-delegation

The maxim is delegatus non potest delegare, a delegate cannot further delegate. Where the statute confers a discretion on a named authority, that authority must exercise it, and it may not pass it to another unless the statute permits.

Three refinements matter.

1. Express or necessarily implied authority to sub-delegate is enough.
2. Ministerial and preparatory work may be done by others. An officer may have the file examined, the inquiry conducted and a note prepared; what he may not delegate is the decision.
3. The larger the power, the less readily sub-delegation is implied. A power to impose a penalty is less readily sub-delegated than a power to prescribe a form.

The rule matters here in its decision making form. Its counterpart for rule making is in [Forms and Types of Delegated Legislation].

Ground 4: non-application of mind

The authority passes the order without considering the matter. The usual evidence is the order itself: a printed proforma with blanks filled in; an order that recites the wrong statutory provision; an order that recites grounds which cannot apply to this person; identical orders passed on the same day against many people with different cases; or an order that does not address the explanation the person gave.

This is where [Reasoned Decisions] does its work. Reasons are how an outsider can tell whether a mind was applied. An order in the formula "having considered the material on record, the application is rejected" recites application of mind without demonstrating it, and S.N. Mukherjee v. Union of India, AIR 1990 SC 1984, is the authority for requiring reasons clear and explicit enough to indicate that the authority gave due consideration to the points in controversy.

Ground 5: acting mechanically on another's report

Close to dictation but distinct. The authority receives an inspector's or committee's report and adopts its conclusion without examining it. Considering the report is proper; adopting it without more is not, because the statute made the authority and not the inspector the decider.

Ground 6: refusing to exercise the discretion at all

Where the authority wrongly believes it has no power, or declines to consider an application on a mistaken view that it is barred, it has failed to exercise a discretion it possesses. The remedy is a mandamus to consider and decide according to law, not a direction as to the outcome.

The remedy, and what it is not

For this family the appropriate order is usually a mandamus requiring the authority to exercise its own discretion, together with certiorari quashing whatever was passed.

The court will not direct the authority how to decide. Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899, holds that in exercising judicial review of administrative action the court is not an appellate authority, and that the Constitution does not permit it to direct or advise the executive in matters of policy or to sermonise on matters within the sphere of the legislature or the executive, provided those authorities do not transgress their constitutional or statutory limits. On the facts of that case the High Court's direction to constitute a statutory independent body was in substance a direction to legislate, and could not be given.

A worked example

The Collector has power under a statute to grant a permit "on such conditions as he thinks fit, having regard to the interests of the public". Vaishali Kadam applies. Consider six outcomes.

1. The Collector refuses because the Divisional Commissioner sent a note directing that no new permits be granted this year. Acting under dictation. The statute vested the discretion in the Collector.
2. The Collector has a standing policy of granting no more than fifty permits in the district, has already granted fifty, and refuses without looking at her application. Self imposed fetter. The policy is lawful as a guide; applied as an absolute bar without considering whether her case is exceptional, it is not.
3. The Collector directs the Tehsildar to decide the application. Unlawful sub-delegation, unless the Act permits it.
4. The Collector signs a cyclostyled order refusing the application, in which the applicant's name is written in by hand and the ground cited is one that applies to a different class of applicant. Non-application of mind.
5. The Collector receives an inspector's report recommending refusal and refuses the same day, in the words of the report, without any independent consideration. Acting mechanically on another's report.
6. The Collector returns the application saying he has no power to grant a permit to a woman, which the statute does not provide. Refusal to exercise a discretion he possesses, and discrimination under Article 14 besides.

In every one of the six the remedy is the same: quash the order and direct the Collector to consider and decide the application himself, according to law. In none of them will the court order that the permit be granted.

Distinctions worth having straight

What it does NOT mean

It does not mean an authority may not have a policy. It may, and consistency is desirable. It must simply remain willing to consider the exceptional case.

It does not mean an authority must do all the work itself. Investigation, inquiry and preparation may be done by others; the decision may not.

It does not mean the applicant wins. As with natural justice, success gives a fresh and lawful decision, not a favourable one.

It does not mean advice is dictation. An authority may seek and consider advice; it fails only if it treats the advice as binding.

Quick revision

1. The principle: the discretion must be exercised by the authority the statute names, on the facts of each case.
2. Grounds: acting under dictation; self imposed fetters, including fettering by contract or by an assurance; unlawful sub-delegation; non-application of mind; mechanically adopting another's report; and refusing to exercise a discretion that exists.
3. A policy is lawful; a policy applied as an absolute bar without considering the individual case is not. The authority must keep its mind ajar.
4. Delegatus non potest delegare: the decision may not be delegated, though preparatory work may be.
5. Non-application of mind is usually shown from the order itself, and the duty to give reasons in S.N. Mukherjee v. Union of India, AIR 1990 SC 1984, is what exposes it.
6. Remedy: certiorari to quash and mandamus to decide afresh. Not a direction as to the outcome: Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899.

Test yourself

1. What is meant by failure to exercise discretion? State the grounds. It is the family of grounds on which an administrative decision may be reviewed because the authority in which the discretion was vested did not bring its own independent judgment to bear on the case. The grounds are acting under the dictation of another, where the authority decides because a superior or a minister has told it to rather than on its own view; imposing a fetter on its own discretion, by adopting a policy or rule and applying it mechanically without considering whether the individual case is exceptional, or by binding itself by contract or assurance; unlawfully sub-delegating the decision, contrary to the maxim delegatus non potest delegare; non-application of mind, usually evident from the order itself; mechanically adopting the report or recommendation of another without independent consideration; and refusing to exercise a discretion which the authority in fact possesses.

2. May an administrative authority adopt a policy for the exercise of its discretion? Yes. A general policy promotes consistency, structures discretion and protects against arbitrariness, and adopting one is not in itself a fetter. What is unlawful is applying the policy as an absolute rule: the authority must keep its mind ajar, must be willing to hear that a particular case is exceptional, and must be prepared to depart from the policy where the case warrants it. A policy operating as an inflexible bar converts a discretion conferred by the legislature into a rule made by the administration.

3. Distinguish acting under dictation from taking advice. An authority may seek and receive advice, may consult others, and may take a departmental policy or circular into account as a relevant consideration. It acts under dictation when it treats the direction or advice as binding and decides because of it rather than on its own judgment. The test is whether the authority applied its own mind to the case or merely transmitted another's decision. The seniority of the person giving the direction is irrelevant, since the statute chose the deciding authority and a superior cannot exercise a power vested in a subordinate unless the statute permits it.

4. Can an authority delegate the exercise of its discretion? Not unless the statute permits it, expressly or by necessary implication, because a delegate cannot further delegate. The authority may have preparatory and ministerial work done by others, such as inspection, inquiry and the preparation of notes, but it must itself take the decision. The readiness of a court to imply a power to sub-delegate falls as the seriousness of the power rises, so a power to impose a penalty is less readily sub-delegated than a power to prescribe a form.

5. What relief does a court grant where discretion has not been exercised? It quashes the order by certiorari and issues a mandamus requiring the authority to consider the matter and decide it according to law, exercising its own judgment. It does not direct the authority how to decide, because that would be to substitute its own view on the merits, and Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899, holds that in judicial review the court is not an appellate authority and may not direct or advise the executive in matters of policy so long as it stays within its constitutional and statutory limits.