Judicial Review of Administrative Discretion

Abstract

Discretionary power is now an essential tool of governance due to the growth of the contemp orary administrative state.

However, discretion without constitutional restraint runs the risk of becoming arbitrary and u ndermining both the rule of law and individual liberty.

The main constitutional tool that holds discretionary authority responsible is judicial review. This article compares the constitutional interpretation of judicial review of administrative dis cretion in Singapore and India, two common law countries with quite different judicial philos ophies but a colonial heritage.

Through the concepts of proportionality, substantive due process, and arbitrariness, Indian co nstitutional jurisprudence has gradually increased judicial scrutiny.In contrast, Singaporean c ourts have followed a constrained, legalitycentered strategy based on institutional competenc y and the separation of powers.

By looking at significant rulings from the Supreme Court of India and the Singapore Court of Appeal.

This study assesses whether limited review maintains administrative efficacy at the expense o f rights protection and if expansive judicial review improves constitutionalism or jeopardizes democratic government in India and the Singapore Court of Appeal.

The paper makes the case for a context sensitive, calibrated judicial review approach that can balance technocratic government with constitutional accountability.

Keywords

Administrative Discretion; Judicial Review; Proportionality; Rule of Law; Separation of Powers; India; Singapore; Technocratic State.

I. Introduction

The contemporary state governs not merely through legislation but through administration. Regulatory agencies, executive authorities, and specialised tribunals now exercise extensive discretionary powers affecting economic activity, civil liberties, and national security. In such a governance framework, discretion is unavoidable; however, unregulated discretion poses a direct challenge to constitutionalism.

Judicial review of administrative action represents the institutional response to this challenge. It seeks to ensure that discretionary power is exercised within constitutional and legal boundaries, without transforming courts into parallel decision-makers. The difficulty lies in locating the appropriate degree of judicial intervention—particularly in an age of technocratic governance, where decisions often rely on expertise rather than political deliberation.

India and Singapore provide a compelling comparative lens. Both jurisdictions inherit the common law tradition of judicial review, yet their constitutional trajectories diverge markedly. Indian courts have progressively expanded the scope and intensity of review, while Singaporean courts have consciously preserved judicial restraint. This article examines these divergent approaches to assess their implications for constitutional governance.

II. Administrative Discretion and the Constitutional Function of Judicial Review

Administrative discretion may be understood as the legally conferred authority to choose among multiple permissible courses of action. Such discretion enables governance flexibility, responsiveness, and efficiency. However, discretion also creates zones of opacity where power may be exercised without adequate justification.

Judicial review operates as a constitutional disciplining mechanism. Its purpose is not to substitute administrative judgment with judicial opinion, but to ensure that discretion is
exercised according to law, reason, and fairness. Historically, common law review was limited to jurisdictional error and procedural irregularity.

The central constitutional tension is thus evident: excessive judicial intervention risks undermining administrative autonomy, while excessive deference risks legitimising executive arbitrariness.

III. India: From Procedural Review to Constitutionalised Scrutiny A. Transformative Constitutionalism and Administrative Law

Indian administrative law has undergone a fundamental transformation since the late twentieth century. Early judicial approaches mirrored English formalism, focusing on procedural compliance and jurisdictional limits. This paradigm shifted decisively with the Supreme Court’s rights-oriented interpretation of Part III of the Constitution.

In Maneka Gandhi v. Union of India, the Court reconceptualised state action by holding that any exercise of power affecting life or personal liberty must satisfy standards of fairness, reasonableness, and non-arbitrariness. Administrative discretion was thus placed within the direct scrutiny of Articles 14 and 21, dissolving the earlier separation between constitutional law and administrative law.

B. Arbitrariness as a Constitutional Infirmity

The doctrinal foundation for substantive judicial review was laid in E.P. Royappa v. State of Tamil Nadu, where the Court rejected formal equality in favour of a substantive conception grounded in non-arbitrariness. Discretionary decisions, even if facially neutral, became vulnerable to constitutional challenge if exercised capriciously.
This approach was reinforced in Ajay Hasia v. Khalid Mujib, where unguided discretion was held to be inherently suspect. The Court emphasised that absence of clear standards invites arbitrary governance, rendering discretion constitutionally impermissible.

C. Proportionality and Intensified Review

The adoption of proportionality marks a further intensification of judicial scrutiny in India. In Modern Dental College v. State of Madhya Pradesh, the Supreme Court explicitly endorsed proportionality as a constitutional doctrine. Administrative measures are now evaluated not merely for legality but for necessity, suitability, and balance.
While proportionality equips courts with a structured analytical framework, it also expands judicial involvement in policy evaluation. This raises concerns regarding institutional competence, particularly in technically complex regulatory domains.

D. Judicial Review in Economic and Contractual Administration

Indian courts have repeatedly acknowledged the need for restraint in economic matters. In Tata Cellular v. Union of India, the Supreme Court clarified that judicial review does not extend to the merits of administrative decisions. Nevertheless, it preserved judicial intervention where discretion is exercised irrationally, mala fide, or in violation of constitutional norms.

This duality reflects India’s attempt to balance constitutional accountability with governance efficiency—an endeavour that remains contested.

IV. Singapore: Legality, Restraint, and Institutional Discipline A. Constitutional Structure and Judicial Philosophy Singapore’s constitutional framework emphasises strong executive governance coupled with political accountability. Judicial review exists as a constitutional principle, but its scope is carefully circumscribed. Courts have consistently underscored separation of powers and institutional competence as justifications for restraint.

B. Chng Suan Tze and Its Aftermath

The decision in Chng Suan Tze v. Minister for Home Affairs briefly signalled a shift towards objective judicial scrutiny, even in matters of national security. The Court of Appeal held that discretionary power must be exercised according to objective legal standards.

However, subsequent legislative intervention curtailed this expansion, reaffirming executive primacy in sensitive domains. This episode illustrates Singapore’s constitutional preference for legislative and executive supremacy over judicial assertiveness.

C. Reasonableness and the Rejection of Merits Review

A legalityfocused approach similar to Wednesbury reasonableness is primarily applied by Sin gaporean courts. The Court reaffirmed in Jeyaretnam Joshua Benjamin v. Attorney General that judicial scrutiny focuses on the legitimacy of decisionmaking procedures rather t han the accuracy of results.

This approach preserves administrative certainty and respects institutional boundaries, but it also limits judicial capacity to address substantive injustice.

D. Proportionality: A Selective Engagement

Unlike India, Singapore has resisted the general adoption of proportionality. In Chee Siok Chin v. Minister for Home Affairs, the High Court declined to subject restrictions on fundamental liberties to intensive proportionality analysis, citing constitutional text and structure.

The reluctance to embrace proportionality reflects a conscious judicial philosophy rather than doctrinal deficiency.

V. Comparative Evaluation: Constitutional Values in Conflict A. Divergent Conceptions of the Rule of Law India’s jurisprudence reflects a rights-maximalist conception of the rule of law, wherein courts act as guardians against executive excess. Singapore’s model embodies a governance oriented conception, prioritising stability, predictability, and administrative efficiency.

B. Democratic Legitimacy and Judicial Authority

Indian judicial activism has strengthened rights protection but has also attracted criticism for encroaching upon legislative and executive domains. Singapore’s restraint preserves democratic accountability through political institutions but risks insulating discretionary power from effective constitutional scrutiny.

C. Expertise, Technocracy, and Judicial Capacity

Technocratic governance complicates traditional judicial review. Courts lack technical expertise in areas such as economic regulation, infrastructure planning, and national security.
Singapore’s deferential approach aligns with this reality, while India’s proportionality-based scrutiny risks judicial overextension.

VI. Judicial Review in the Technocratic State

The rise of data-driven governance, regulatory agencies, and expert-led administration demands a re-examination of judicial review. Traditional doctrines must adapt to ensure transparency, rationality, and accountability without undermining governance capacity.

India’s constitutional framework permits such adaptation but risks inconsistency and unpredictability.

VII. Towards a Calibrated Model of Judicial Review

This article advances a calibrated approach to judicial review of administrative discretion: 1. Rights-Sensitive Scrutiny where fundamental liberties are directly implicated. 2. Institutional Deference in complex economic and technical policy domains.

3. Procedural Rationality as a minimum constitutional requirement across all discretionary action.

4. Contextual Proportionality, applied selectively rather than uniformly.

India may benefit from greater institutional discipline, while Singapore may cautiously expand substantive review in cases of severe rights deprivation.

VIII. Recent Developments in Judicial Review of Administrative Discretion A. India: Recalibrating Intensity of Judicial Review

In recent years, Indian constitutional courts have displayed a discernible shift towards disciplining discretion without collapsing into merits review. While the Supreme Court continues to affirm the constitutional mandate of non-arbitrariness under Article 14, it has simultaneously cautioned against courts substituting their own assessment for executive judgment in complex administrative domains.

Recent rulings pertaining to public appointments, regulatory clearances, and tender cancellati ons show a greater emphasis on rational decisionmaking based on contemporaneous informat ion rather than post-facto explanations.

Courts have made it clear that although the executive is still in charge of making policy decisi ons, the method by which discretion is used must pass constitutional muster. This development indicates a shift away from general rhetorical accusations of arbitrariness a nd toward a more methodical analysis of the rationality of decision-making.

High Courts have further contributed to this evolution by reaffirming that mere change in executive preference or political leadership does not legitimise reversal of administrative decisions, unless supported by legally relevant considerations.

Notably, the doctrine of proportionality, though firmly embedded, is increasingly applied with contextual sensitivity. Courts are demonstrating reluctance to deploy proportionality as a universal standard, instead reserving intensive scrutiny for cases involving direct infringement of fundamental rights, while exercising restraint in economic and technical matters.

B. Singapore: Consolidation of Restrained Review with Subtle Constitutional Signals Singapore’s recent jurisprudence reaffirms its longstanding commitment to legality-centred judicial review. Courts have continued to emphasise that judicial review is concerned with the lawfulness of the decision-making process, not the substantive correctness of outcomes.

Administrative discretion exercised by specialised bodies and statutory authorities is accorded significant deference, particularly where decisions involve technical expertise or institutional judgment.

Administrative decisions affecting individual rights are increasingly scrutinised for compliance with statutory purpose, procedural safeguards, and rational connection to legislative intent.

A notable development is the judiciary’s cautious engagement with statutory provisions that appear to restrict or exclude judicial review. Although Singapore courts do not adopt an overtly confrontational stance, judicial reasoning increasingly reflects the view that core grounds of review—such as illegality and procedural impropriety—cannot be entirely insulated from curial oversight.

IX. Suggestions and Doctrinal Proposals

Drawing from the comparative analysis and recent developments, the following legally realistic and institutionally feasible proposals are advanced:

A. Suggestions for India

1. Formalising a Graduated Intensity Framework

Indian courts would benefit from articulating a structured spectrum of judicial review, rather than relying on open-ended invocations of arbitrariness or proportionality. Such a framework could distinguish between:

∙ High-intensity review where administrative discretion directly infringes fundamental rights

∙ Moderate review in socio-economic and regulatory matters

∙ Low-intensity review for macro-policy and technical decisions

This would enhance doctrinal clarity and reduce unpredictability in administrative adjudication.

2. Re-centring Procedural Rationality

Judicial review should increasingly focus on procedural rationality and reason-giving, rather than substantive outcome assessment. Courts can strengthen constitutional accountability by insisting on transparent decision-making processes without assuming the role of policy evaluators.

3. Limiting Proportionality to Rights-Sensitive Contexts

While proportionality is a valuable constitutional tool, its indiscriminate application risks judicial overreach. Indian courts should reserve full proportionality analysis for cases involving serious rights deprivations, thereby preserving institutional competence and democratic legitimacy.

B. Suggestions for Singapore

1. Clarifying Justiciability Thresholds Given Singapore’s restrained model, greater clarity on which administrative decisions are amenable to review would enhance predictability. Codified or judicially articulated criteria for justiciability would reduce threshold litigation and reinforce legal certainty.

2. Enhanced Procedural Scrutiny in Rights-Impacting Decisions Without abandoning restraint, Singapore courts may develop enhanced procedural scrutiny where discretionary decisions significantly affect constitutional liberties.

3. Constitutional Signalling on Ouster Clauses Singaporean courts should continue signalling, through principled reasoning, that total exclusion of judicial review over public power raises constitutional concerns. Such signalling respects legislative supremacy while affirming the judiciary’s role as guardian of legality.

X. Conclusion

Judicial review of administrative discretion is neither a binary choice between activism and restraint nor a static constitutional doctrine. The comparative experiences of India and Singapore reveal that constitutional context, political culture, and governance priorities shape judicial philosophy.

Recent developments in both India and Singapore illustrate that judicial review of administrative discretion is undergoing refinement rather than retreat. India is moving towards doctrinal discipline within its activist tradition, while Singapore is consolidating restrained review with subtle constitutional safeguards. However, both jurisdictions demonstrate that judicial review remains indispensable in preserving constitutional accountability within technocratic governance structures.

In an era defined by technocratic governance, courts must recalibrate their role to preserve constitutional accountability without eroding democratic legitimacy. A nuanced, context sensitive model of judicial review offers the most sustainable path for constitutional democracies navigating the complexities of modern administration.

Indicative Footnotes (SCC Online & SLR Only)

1. Maneka Gandhi v. Union of India, (1978) 1 SCC 248.

2. E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3.

3. Ajay Hasia v. Khalid Mujib, (1981) 1 SCC 722.

4. Tata Cellular v. Union of India, (1994) 6 SCC 651.

5. Modern Dental College v. State of Madhya Pradesh, (2016) 7 SCC 353.

6. Chng Suan Tze v. Minister for Home Affairs, [1988] 2 SLR(R) 525.

7. Chee Siok Chin v. Minister for Home Affairs, [2006] 1 SLR(R) 582.

8. Jeyaretnam Joshua Benjamin v. Attorney-General, [2014] 1 SLR 345.