Project on

“Administrative Discretion – Definition,

Scope and Constitutional Aspect”

Administrative Law

SUBMITTED BY- Humanyu Kabeer

B.A. L.LB. (Self-Finance)
SEMESTER VI
BATCH 2017-22

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Contents

“ Administrative Discretion – Definition, Scope and Constitutional Control”……1

Abstract……………….………………………………………………………………………….….3

Introduction………………………………………………………………………………………….4

Meaning and Definition of Administrative Discretion………………..…………………………….4

Historical Background…………..………………………………………………………………….5

Reasons behind the Development of Discretionary Powers..………………………………………6

Administrative Discretion in Indian System………..…………………...………………………….7

Administrative Discretion and Indian Constitution……………..……………………………….....8

Administrative Discretion and Fundamental Rights…………….……………………………….....9

Controls over the Administrative Discretion …………………………………………………..…10

Administrative Discretion and Role of Judiciary………………………………………………....11

Suggestions and Conclusion…..……………………………………………………………….….13

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 Abstract

Administrative Discretion is a science or understanding to discern between falsity and truth,

between right and wrong, between shadows and substance, between equity and colourable
glosses and pretences, and not to do according to their whims and private caprices. It must be
the slogan and aim of every country. Administrative discretion can become curse for the
country if it transforms into arbitrariness. Administrative discretion is useless if it is
unsuccessful to achieve welfare as its objective. Mostly countries had adopted the concept of
welfare state. To fulfil this purpose administration requires some discretion. Administrative
discretion is a means to get the aim of welfare state. India also had adopted the welfare
concept. So, the power of administrative discretion is conferred on administrative officers.
Administrative discretion is often used to attain inclusive growth. I want to say through my
paper that administrative discretion is a leverage of administration which can be used for
objective or malicious purposes. There are many problems in its way i.e. corruption,
misbehaviour, negligence and arbitrariness. Professor Dicey thought that administrative
discretion is against Equality, and it becomes the cause of arbitrariness, discrimination and
injustice.
Key Words- Arbitrariness, Discretion, Welfare, Ministerial Action, Rule of Law.

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Introduction

Most of countries in the world have adopted social welfare concept after removing the
concept of laissez faire concept. With this effect lot of discretion conferred for the
administration. State made lots of laws to achieve the aim of the social welfare, under those
laws a lot of discretionary powers were given to administrative authorities. And provide most
of opportunities to perform their duties. Many time administrations feel specific knowledge
and instant decision power to perform their duty. So, it is necessary that the right to take
instant decision must be conferred to administrative authorities. After this, they can do their
work according to circumstances and they can take decisions also. It implies, all discretionary
powers are given with this intention, no law can be absolute. Nature is dynamic so
circumstances are also changeable. Law cannot change easily as circumstances. Therefore,
law cannot control this dynamic society. Whenever these administrative problems will rise,
Legislative said that they do not know when and how it will rise. Legislature is unable to
provide any help against this critical situation, but administration can solve this problem for
this purpose legislature conferred the power of discretion. We cannot fulfil the aim of social
welfare state without discretionary powers of administrative authorities. Inclusive growth and
discretion both are mandatory for every country. India is also following this concept. Law has
provided maximum discretion power to administrative authorities for they perform their duty
in respect of inclusive growth. Discretion can convert into arbitrariness so the law has
imposed a lot of restriction on it. Whenever administration uses these powers it will be
bracketed by the sanctions. Administration performs its duty within the limits which is
imposed by the legislative body. When legislature confers discretionary powers to
administrative authorities it has to maintain the provision to control it. There are two types of
control (Judicial and None Judicial) over the administrative authorities. All acts of
administrative authorities come under the power of judicial review. Court can check all
administrative works on the certain grounds. Court has also a limited power to control
administrative actions. When a matter arises, which cannot be checked by the court it can be
checked by the administrative authorities.

Meaning and Definition of Administrative Discretion

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The word administrative discretion denotes two words administrative and discretion. It means
discretion which is used by administration in their functions. Discretion means decision
making power. In other words, the power to do something according an individual’s own
rationale and wisdom. For instance, every person has discretion regarding their property he
can donate, transfer and sale. It is his discretion in order to decide the mode of disposal of
property. Individual discretion is different with administrative discretion. In case of
individual discretion there is no restriction. But administrative discretion means they have
discretion within the given options. They are not free to take the decision as an individual;
they can take decision only within the limits which is provided by the legislature. Even
courts exercise the power of discretion, when they punish someone. Discretion means choose
an option from the given options on the basis of reason and argument it must not be based on
individual will. Lord Cock defined discretion as, discretion is a science to understand the
difference between truth - untruth, right – wrong and reasonable & unreasonable.
Administration must not do its work under the influence of personal interest and to fulfill
own will. Justice Frankfurter states, ―Discretion without a criterion of its exercise is
authorization of arbitrariness. It means discretion is choosing one option from amongst
alternatives. These alternatives must be based on reasons and justice not according to
personal will. This exercise must not be capricious, blurred and bizarre; it must be legal and
reasonable.

Historical Background

Administrative discretion is a big problem from the beginning time. It has proved that any
welfare government cannot do its work without discretionary powers of administrative
authorities. But it is also truth that an absolute discretion may become a cruel owner. Lord
Aitkin, ―according to English jurisprudence any member of executive may not interfere with
the property and liberty without this condition that he will also express the legality of his act
before the court. Administrative actions are either ministerial or discretionary. A ministerial
action is one where the authorities have a duty to do a thing in a particular way. Such actions,
however, are exceptional. In most administrative actions, the administrative authorities have
the power either to act or not to act or to act in one way or the other. This power- to act or not
to act or to act in one way or the other – is called discretionary power. Discretion is the power

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to decide or act according to one’s judgment1. Whenever the word ―may is used by
legislation, it signifies the administrative powers. The word may indicate discretionary
powers. In other words, we can say freedom of authority. Professor Dicey criticized it as, he
thought that discretion is the source of inequality, discrimination and arbitrary action. It is a
clear-cut violation of rule of law. With the effect of socio-economic typical problems which
arise suddenly, it is faced by administration. So, the scope of ministerial powers is shrinking
and the scope of discretionary powers is increased. It has been experienced that a
government which has only ministerial powers are rigid and dormant. So administrative
officers have required the power to choose, which powers, how and when they will exercise
their powers. Main reason behind these problems; administrative authorities have faced such
difficult problems i.e. investigation of facts and choose the facts. Therefore, the modern
concept has thus conferred lots of discretionary powers on administration. It is mentioned in a
statute that government may form rules to fulfill the object of respective act, when they have
need. With the effect of this the discretionary power to make rules and choose the time and
place to enforce those rules is conferred to government by the legislative.

Reasons behind the Development of Discretionary Powers

There are many reasons behind the development of the power of administrative discretion.
Some reasons are given below:
1. In present time administration faces difficult and different problems which cannot be
solved by a single rule.
2. Most of those problems are new and rise first time, so a general rule cannot apply
against those problems because they don’t have sufficient experience.
3. It is not possible to anticipate all problems, but when these problems rise and cannot
be solved according to circumstances than administrative authorities must solve it.
4. Every problem is based on a different circumstance, if we will apply a rule to all it can
be cause of injustice.
Administrative authorities can exercise their powers according to their wisdom and
circumstances. They can make and exercise various rules to solve the problem which are
rise suddenly. But when administration will solve every problem and exercise different

1
S. P. Sathe, Administrative Law, p, 385, (Wadhwa Book Company, Seventh Edition).

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rules in those problems. It may become the reason of many difficulties; some are given
below:
1. No one may know which rule will be exercised in a particular matter.
2. It will be the clear-cut violation of article- 14, Right to Equality, because in every
matter of same nature will be deal with different rules.
3. It may be possible that administrative discretion can be misused by administrative
authorities.
On the basis of above discussion administrative authorities must prefer a general rule so
that it becomes possible for the administrative authorities to exercised equality in their
works. If it will not maintain it may not only become cause of administrative arbitrariness
but also it will be failing to maintain public trust. When Administration exercises
administrative discretion it must remember, to apply similar discretion in similar
circumstances otherwise it will be discrimination.

Administrative Discretion in Indian System

India has also adopted the concept of welfare state so it necessarily confers the
discretionary powers to administration because it is the only body which performs all the
administrative functions to achieve the aim of welfare. After adopting this concept
government participated and interfered in all work which was done by public. Now state
thinks about the development of both public and state. It did not have any interest in
public matters. Now the state starts to think about public and their facilities, so state
imposed the burden of all responsibilities on the administration. But without discretionary
power it was not possible. Administrative officers felt the need the power to take instant
decision. Without it, the administration is unable to perform its function. So, state
conferred discretionary powers to them. No modern government, however, can function
without the grant of discretionary power to administrative authorities. Whether or not an
action is required depends upon the happening of certain events or the arising of certain
situations that cannot be anticipated. They have to be determined from time to time and
the administrator has to respond by using the power given to it. Some actions depend
upon an assessment of the situation by administrative authorities. Expressions such as if
he is of the opinion or if he is satisfied or if he has reasonable grounds to believe vest
power in the authority to act on framing an opinion or being satisfied that the action is

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 necessary. All such actions are discretionary. 2 Supreme Court had held that in the respect
of discretionary power given under statute to administration. It is expected that the use of
discretionary powers would be based on fair, Just and reasonableness, it must not be
based on individual interest or will. It must not be doubtful, arbitrary and imaginary. It
must be under within the limits, which is expected with a genuine person.3

Administrative Discretion and Indian Constitution

Any statute cannot be challenged on the ground of alleged mala fide intentions or
mysterious motive, if it is enacted by competent legislature. If any statute confers
discretion to the executive, it must impose some limitations for the exercise their
discretion. There are so provisions in our constitution which refer discretion.
President of India is the supreme of Executive. He exercised much discretionary power.
He can impose national emergency if he is satisfied that any condition has been rise under
article 352. He has power to enact and enforce ordinance. He can dissolve to Lok Sabha,
when not any party is in majority. He has discretion whose will call to form the
government. He has also the power to grant pardon or remission of sentence to person
convicted of offences by court of law under article 72 and 161 of the Constitution of
India. He can also impose presidential rule on a state under article 356. But all these
powers are under some restrictions. These are not arbitrary in nature. Even judiciary has
some discretionary power, when judges punish guilty persons, they have discretion
whether to impose imprisonment or fine or both.

Administrative Discretion and Fundamental Rights

Fundamental rights control the executive and legislative powers of the government. And
it has control over the administrative discretion. No Law may provide administrative
finality, because court has jurisdiction to check the administrative discretion. If discretion
is against fundamental rights it must be void and declared unconstitutional by the court.
Court will focus on some protective principles when it may be necessary during
exercising discretionary power in respect of fundamental rights. Discretion can be
2
S. P. Sathe, Administrative Law, p, 386, (Wadhwa Book Company, Seventh Edition).

3
U. P. S. R. T. C. v. Mohd. Ismail, SCC 1991.

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 controlled in a limited jurisdiction with the effect of Fundamental rights. Court has also
time to time discus on the legality of such laws, which provide discretionary power. To
fulfill this object court see the summary and making procedure of such law. If court finds
these laws against constitution, it will be declared unconstitutional. Administration cannot
violate article 14 & 19 of the Indian Constitution while exercising discretionary powers.

Controls over the Administrative Discretion

It has universally admitted that discretionary powers have become the need of the day.
Now a question is raised that how it can be controlled. Because it can be violation of
fundamental rights of public. It can be control with two types first judicial and other one
is none judicial. Two procedure can be made against administration departmental
(administrative) and judicial if they violated fundamental rights and misused their
discretion.
There are so many ways to control it. We must incorporate such rules which will be
mandatory to that authority who will exercise discretion. Discretion must be limited and
systematic. If legislature is failed to maintain such norms in that statute to control
discretion, those norms must be incorporated by administration with the help of delegated
legislation. It must be controlled in proper way. It can be controlled with judicial and
other authorities, i.e. C.B.I., C.V.C. and Lokpal. 4 Judicial control is more effective.
Judicial control can protect to citizens from arbitrariness and exploitation. Now lots of
principles have been developed to control discretion by the court. Judiciary must
concentrate on two points first it should direct the legislature that they do not confer wide
and unlimited discretion to executive. And other is that every discretionary act must come
under the power of judicial review. It can be determined that every administrative
authority did their work according to law and within the limits of their jurisdiction.
Judiciary plays a good role to control it.
Court may control it on certain grounds. No discretion can be absolute. There are some
restrictions on it, and some of those are given below.
1. Discretion must be used by respective authority which was authorized for it, and with
similar motive.

4
C. K. Takwani: Lectures on Administrative Law, (Eastern Book Company, Lucknow.)

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 2. Delegates cannot delegate its powers to another person, it means sub-delegation is
unconstitutional if it is not mentioned in parent act. Unless it is mentioned in that act,
under which these powers are provided.
3. Any authorized person cannot be made incompetent himself with the use of
permanent rules. It means no one can be waived of their liabilities.
4. It must be used for the public welfare. It must not be ultra-vires. If any procedure is
given, it must be followed. If procedure is not mentioned then a reasonable process
must be followed. If administrative authorities are failing, court can declare its work
as unconstitutional.
5. When an officer acts under discretion, he should not behave like a machine.
6. Discretion must be used in the respect of relevant considerations.
7. Discretion must be revoked on the ground of mala-fide intention.
Court may check administrative authorities on above grounds. It means discretion has no
absoluteness. It can be altered by court.

Administrative Discretion and Role of Judiciary

Now these days court has developed lot of new principles to control the discretion. These
grounds are successful in controlling discretion. These principles are Doctrine of ultra-
vires, abuse of administrative discretion, improper purpose, irrelevant consideration,
malice, unreasonableness, violation of procedure, arbitrary use of discretion and
administrative discretion. In the case of Ram Manohar Lohia v. State of Bihar,5 under the
defence of India rules, the authority was empowered to detain a person to prevent sub
version of Public order. The petitioner was detained with the view to prevent him from
acting in a manner prejudicial to the maintenance of Law and order. The court set aside
order of detention. In the opinion of the court, the concept of law and order was wider
than the concept of public order. Supreme Court in the case Nalini v. District Magistrate6
has held that under the relevant statute power was conferred on the authority to
rehabilitate persons displaced from Pakistan as a result of communal violence but it was
exercised to accommodate a person who had come from Pakistan on a medical leave. The
order was set aside. Maneka Gandhi v. Union of India,7 the supreme court held that an

5
AIR 1966, SC 740.
6
AIR 1951, Cal. 346.
7
AIR 1978, SC 597.

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 order passed under section 10 (3) c of the passport act, 1967, empowering for impounding
a passport, could be declared bad under article, 19 (1) (a) & (g) if it imposes unreasonable
restrictions on the freedoms covered by the two clauses. The court has held in Ajay Hasia
v. Khalid Majid8, that allocation of 33.3% of the total marks to oral interview is arbitrary
as there are many deficiencies in such a test and it leads to deterioration in moral values.
In the opinion of the court, not more than 15% will be allotted to viva voce and that the
test should be properly conducted. Justice P. N. Bhagwati stated that, ―it is well steeled
rule of administrative law that an executive authority must be rigorously held to the
standards by which it professes its action to be judged and it must scrupulously observe
those standards on pain of invalidation of an act in violation of them. 9 In Air India v.
Nargesh Meerza10, the question was on the validity of service regulation framed by air
India providing for the termination of services of an air-hostess on her first pregnancy.
Supreme Court held that the regulation to be extremely arbitrary, unreasonable, abhorrent
to the notions of a civilized society and interfering with the ordinary course of human
nature. It is not a disability, but one of the natural consequences of marriage and
immutable characteristic of married life. So, it has proved that administrative discretion is
need of the day and its control is the necessity. Judicial review is a good weapon to
control it. So, it is another dimension of judicial review of administrative discretion.
Under article 14 of the Indian Constitution, no one shall face discrimination. Article 14 of
the Indian Constitution refutes any discrimination or arbitrary action in the actual exercise
of any discretionary power.11

Suggestions and Conclusion

Administrative discretion must be conferred but it must be limited. And some restriction
must be imposed. It means a procedure should be established for the administration. So,
attention should be drawn towards some issues, which are given below:
1. Without discretion administrative officers cannot succeed in their aim. They cannot
achieve welfare, so, it is a necessity that state should confer discretion, but it must not
access.

8
AIR 1981, SC 487.
9
R. D. Shetty v. International Airport Authority, AIR 1979 SC 1628.
10
AIR 1981, SC 1829.
11
Dr. U. P. D. Kesari: Administrative Law, (Central Law Publication¸ Allahabad.)

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2. When state provide discretion some rules (restrictions) should be imposed at that
time. These restrictions must be followed during excising the discretion.
3. The wordings of the act must be doubtless and clear, under which discretion is
conferred.
4. Legislative should establish a procedure to administrative officers, they must follow it
during exercising their discretion. If they are failed to follow it. They must be
punished.
5. If any person is injured with discretion, remedy must be provided to him.
6. Discretion must come under the jurisdiction of judicial review not only certain
grounds i.e. mala-fide intention, arbitrariness, discrimination and irrelevant
consideration, but on reasonable grounds also. Because day by day new problems are
rising.
After above discussion we must say that discretion must be conferred with some limits.
Without discretion administration cannot run smoothly in a welfare state. It is a necessary
element in exercise of powers. But limits and standard are also required to be established.
Without limits and restrictions administrative discretion becomes absolute. Aristotle has
rightly stated that power corrupts and absolute power corrupts absolutely. Discretion
develop creativeness in government. Discretion must be in all administrative actions but
at the same time it is necessary to impound arrangement and check discretion to uphold
the principle of rule of law in administration least cases of injustice go unheeded and
scot-free. Although it is true that discretion is necessary to running the administration but
absolute discretion cannot be granted. If discretion is without restrictions then there will
be dictatorial rule and rule of will vanish from the country. Without discretion no policy
can be carried out in the country. If absolute discretion is conferred, democratic norms
will not realize.

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 References

Books Referred

 S. P. Sathe, Administrative Law.

 C. K. Takwani: Lectures on Administrative Law, Eastern Book Company, Lucknow.

Cases Referred

 U. P. S. R. T. C. v. Mohd. Ismail.

 Ram Manohar Lohia v. State of Bihar.

 Nalini v. District Magistrate.

 Maneka Gandhi v. Union of India.

 Ajay Hasia v. Khalid Majid.

 R. D. Shetty v. International Airport Authority.

 Air India v. Nargesh Meerza.

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