Constitutional Law In this case, the petitioner challenged his detention order by the government on the ground of mala fide exercise of discretion. Sometimes an order may be based partly on relevant and partly on irrelevant considerations. Looking for a flexible role? To conclude, in reality, Indian courts’ job is hard as they have to be very careful that the main idea behind the grant of this discretionary power is maintained and put to task on an account of any failure, with the same time it also has to be cautious that the fact that they don’t overwork their judicial discretion. You can view samples of our professional work here. ISBN 978 1 107 00347 7. Free resources to assist you with your legal studies! The facts presented in court showed that a fake report against the petitioner who was a wholesaler dealer in kerosene was made by the Deputy Superintendent of Police (Civil Supplies Cell). Ã8l=ã_ÿšœð"£×“Ó3z=£ß›Ï“Ó«õÅb=y;ç—)ʉÙäûÉËÉëÅùfªý¬ïÄK=Ž‰û´×c§f“³ÍúÓùæçùz±Ú`ȓ³OlÐîË՟©‡“ÕêjóøqÆÁÝZØcÃpL‡æ|ìú881ˆƒ¿6ŽY2Ù1‰=E„;8ÈAÔýpPnvrcð°Žcµ3N â ïNJ€é@Rt¼Ëq‡p/H,ÂRLØqØ!ƒDAߏьIDIkÇ$IlŒÍü ö~d –ÄT9†V»3á̍(—‰a¸Œ*r:¿^‰ *? Successive Governments are enfranchised through Parliamentary But what if there is no judicial control at all over this discretionary power? After due consideration, the Court comes to the conclusion that the purpose of the exercise was improper, it would be irrelevant that incidentally a genuine purpose is also served. There are numerous merits of administrative discretion. The court while examining their right use of discretion would have to be very careful as it is strictly prohibited to go into the merits of each case. 2 the law is relating to persons or activities in which they have a legal interest. Judicial review is the soul of our constitution. Cambridge: Cambridge University Press, 2011. xix + 284pp. CASE STUDIES: GOVERNANCE AND LEADERSHIP MODELS IN AFRICA -134- classify the political systems across the world, political scientists have used various criteria, such as the mode of decision-making (for In 1975 a bilateral treaty was signed between them that, this matter shall be The petitioner in this case was neither an hotelier nor tenderer. 6th Aug 2019 U.S. Supreme Court Pierce v. Society of Sisters, 268 U.S. 510 (1925) Pierce v. Society of Sisters Nos. He has held senior executive positions in international consulting firms, and owned an international import-export business. Discretionary powers bestowed on the administrative authorities are of a vast range. However, in all these cases the burden of prove lies on the petitioner and whereas the administrative authorities’ duty would be to show that discretionary power granted was exercised in advance for the purpose which the power was granted in the first place. Feel free to contact us if you need further information or have any suggestions at the following email: SAE@stf.jus.br. In Tavita v. Minister of Immigration [38] , the New Zealand Court of Appeal had to decide between the enforcement of a deportation order and human rights. Irrelevant Considerations: In Barium Chemicals v. Company Law Board [17] , the court was of opinion that if it is claimed that the conditions do not exist or that they are such that is not viable for anyone to form an opinion therefrom then such opinion is challengeable on the ground of non-application of mind or perversity or on the ground that it was formed on collateral grounds and was beyond the scope of the statute. From time immemorial, they have believed that executive and legislative powers which are immune from judicial scrutiny are in a way repudiation of rule of law. The commissioner excluded 99 villages from the area held in reserve by him in favour of the appellant-company previously. In short, the purpose of the discretion is to serve the country’s citizens’ in the best possible way. Indian courts have shown that they are pretty eager to examine the factual basis on which the administrative authorities have exercised their discretion. Reference this, The transformation of the philosophy of state in the twentieth century from lassie faire to welfare has augmented the state’s responsibility towards its subjects. Mixed motives /colourable exercise of discretion: In Jiwani Kunar v. First Land Acquisition Collector [20] , where the government could acquire property for a public purpose only temporarily, and the land was acquired permanently, the court held it to be a colourable exercise of power. Moreover, in India the jurisprudence follows that courts are not supposed to substitute their own decision with administrative discretion. You should not treat any information in this essay as being authoritative. Arbitrary exercise of discretion- In R.D. but here it conducted the enquiry on the basis of faulty management of the company which resulted in heavy downfall of the share prices. Court cannot substitute its choice; no matter a little play in the joints is certainly possible while dealing with the subjective satisfaction.’ [21] In Shalini Soni v. Union of India [22] the Supreme Court observed that it is an unwritten rule of the law, constitutional and administrative, that whenever a decision-making function is entrusted to the subjective satisfaction of a statutory functionary, there is an implicit obligation to apply his mind to pertinent and proximate matters only, eschewing the irrelevant and the remote.”. 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