The Exercise of Discretionary Powers by State Officials
Chapter Fifty-Three
Syllabus topic 4, "Grounds of Review"
Pages 161 to 163 of 430
In one line
MU's 2018 question asks how far a court may go behind an official's choice, and the honest answer is that the court's reach has grown steadily since 1941.
In the wording a student can write in an exam: the exercise of discretionary powers by state officials is subject to judicial review to the extent that the court may examine whether the power existed, whether the conditions on which it depended were satisfied, whether the authority applied its own mind to relevant material, whether it acted for the purpose for which the power was given, and whether the result is one no reasonable authority could have reached.
MU's question
Set as a whole twenty-five mark question: critically analyse the extent to which the exercise of discretionary powers by state officials may be subject to judicial review in the light of the decisions in Liversidge v. Anderson, [1942] AC 206, and Padfield v. Minister of Agriculture, Fisheries and Food, [1968] AC 997. The University supplied both neutral citations. So the answer must work both cases and must draw the contrast between them, which is the whole point of the pairing.
The two poles
Liversidge is the low point of review. A regulation permitted detention where the Secretary of State had reasonable cause to believe certain things, and the majority read that as meaning his own honest belief, which the court could not examine. The extreme deference and the reasoning are worked in [Liversidge v Anderson and Subjective Satisfaction].
Padfield is the turning point. A Minister claimed an unfettered discretion whether to refer a complaint to a committee of investigation. The House of Lords held that Parliament must have conferred the discretion with the intention that it be used to promote the policy and objects of the Act, and that a Minister who thwarts them can be compelled to act according to law. It is worked in [Padfield: A Discretion Must Serve the Policy and Objects of the Act].
Between the two, everything changed: the burden, the language and the assumption. In 1941 the court asked whether the statute allowed it to look; in 1968 it asked what the statute was for.
What a court examines today
Was there a power at all? Ultra vires.
Were the conditions satisfied? Jurisdictional facts, and where the condition is a subjective satisfaction, whether there was material on which it could be reached: Barium Chemicals Ltd. v. Company Law Board, AIR 1967 SC 295.
Did the authority apply its own mind? Non-application of mind, acting under dictation, fettering by a self-imposed rule.
Was the power used for its purpose? Improper purpose, mala fides, colourable exercise.
Were the right things considered? Relevant and irrelevant considerations, and S.R. Venkataraman v. Union of India, AIR 1979 SC 49, where an order rested on nothing at all.
The Exercise of Discretionary Powers by State Officials
Is the result defensible? Wednesbury unreasonableness, arbitrariness under Article 14, and proportionality where a fundamental right or a punishment is in issue.
Were reasons given? S.N. Mukherjee v. Union of India, AIR 1990 SC 1984.
The critical analysis MU asks for
The case for a wide review. A discretion is a trust, not a gift. An official exercising public power spends public authority and affects private lives, and if his reasons cannot be examined the power is arbitrary in fact even if lawful in form. Liversidge is the standing demonstration of what happens when a court declines: the detention was unreviewable, and Lord Atkin's dissent is now regarded as the law.
The case for restraint. The official is accountable politically and has expertise the court lacks. A court that reviews too intensely substitutes its own choice, which is what Tata Cellular v. Union of India, AIR 1996 SC 11, and Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899, warn against.
Where the balance now sits. The court reviews the process fully and the merits hardly at all, except where a fundamental right is affected, when proportionality allows a closer look at the substance. That is the modern compromise, and it is defensible because it protects both the citizen's right to a lawful decision and the administration's right to make it.
A worked example
A District Magistrate, acting under a statute empowering him to prohibit an assembly if he is satisfied that it is likely to cause a disturbance of public order, prohibits a meeting of an association whose earlier meetings had passed without incident. The file contains a police report about a different association and a note from a local politician.
There was a power. The condition is a subjective satisfaction, so the court will not ask whether a disturbance was likely, but it will ask what material there was: a report about a different association is not material about this one, so the case is close to S.R. Venkataraman. The note from the politician raises non-application of mind and acting under dictation. And on the modern view the order engages Article 19(1)(b), so proportionality applies and a blanket prohibition where conditions could have been imposed is disproportionate.
What this does NOT mean
It does not mean Liversidge is bad law in India. It was never Indian law; Indian courts followed the dissent through Barium Chemicals and Rohtas Industries.
It does not mean the court decides how the discretion should be exercised. Except in the narrow class of Comptroller and Auditor General of India v. K.S. Jagannathan, AIR 1987 SC 537.
The Exercise of Discretionary Powers by State Officials
It does not mean subjective language is meaningless. It shifts the enquiry from correctness to the existence and relevance of material.
Quick revision
MU pairs Liversidge with Padfield because they are the two poles. Liversidge: reasonable cause to believe read as honest belief, no review, Lord Atkin dissenting. Padfield: no unfettered discretion, it must promote the policy and objects of the Act, mandamus to consider according to law. Today a court asks about power, conditions, application of mind, purpose, considerations, result and reasons. The critical balance is between the trust theory of discretion and the restraint required by expertise and political accountability, and the compromise is full process review with merits review only through proportionality.
Test yourself
1. Why did MU pair Liversidge with Padfield? Because they are the two extremes: the first treats a subjective formula as excluding review, the second holds that no statutory discretion is unfettered.
2. Name three things a court examines in a discretion case. Whether the power existed, whether there was relevant material for the satisfaction, and whether the power was used for the purpose for which it was given.
3. Where does the merits review still happen? Where a fundamental right or a punishment is in issue, through proportionality, and at the extreme through Wednesbury unreasonableness and Article 14 arbitrariness.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.