ADMINISTRATIVE
DISCRETION
MEANING
In black law’s dictionary , administrative discretion would be
a public official’s or agency’s power to exercise judgment in
the discharge of its duties
The definition of Administrative discretion is offered by
many but there only few which are worth mentioning. Prof.
Freund said that:
“When we speak of administrative discretion, we mean that
a determination must be reached, in part at least, upon the
basis of consideration not entirely susceptible of proof or
disproof… It may be practically convenient to say that
discretion includes the case in which the ascertainment of
fact is legitimately left to administrative determination."
In Oxford Dictionary of law, administrative powers have
been defined as “the discretionary powers of an
executive nature that are conferred by the legislature on
government, ministers, public and local authorities and
other bodies and persons for the purpose of giving
detailed effect to the policy intended by the legislature
itself.“
Thus, in short, here the decision is taken by the authority
not only on the basis of evidence but also in accordance
with policy or expediency and in exercise of
discretionary powers conferred on that authority
Discretionary powers bestowed on the administrative
authorities are of a vast range. Their power serve the purpose
of simple ministerial tasks like maintenance of birth and
death register as well as those which seriously affect the
rights of an individual, e.g. acquisition of property, regulation
of trade, industry or business, inquiry, seizer, confiscation
and destruction of property, detention of a person on
subjective satisfaction of an executive authority and many
more. The list of their functions is exhaustive in nature.
Basically, administrative discretion is provided to the
executive using which they drive the process of
governance smoothly in the country. In short, the
purpose of the discretion is to serve the country’s
citizens’ in the best possible way.
JUDICIAL REVIEW
Basic feature of Constitution
JR may be defined as a ‘court’s power to review the
actions of other branches of govt especially the court’s
power to invalidate legislative and executive actions as
being unconstitutional
Judicial review is the soul of our constitution. It is the
exercise of the court’s inherent power to resolve whether
an action is lawful or not. ‘It holds the balance of power
between individuals and the government. It legitimizes
the application of administrative sanctions.’
In India, judicial review has a firm base. The framers of
our constitution had not only believed in limited
government was necessary for democracy but also
enshrined the philosophy in the constitution. It is a
modus operandi for public accountability of the
administrative process. In this process, it principally
maneuvers as a check upon the administrative branch of
the government and the agencies operating, there under.
Object of JR is to ensure that the authority does not
abuse its power and the individual receives just and fair
treatment and not to ensure that the authority reaches a
conclusion which is correct in the eye of law
Minerva Mills Ltd. v. UOI
SC and HC are ultimate interpreters of the Constitution.
It is, therefore their duty to find out the extent and limits
of the power of coordinate branches,( executive and
legislature) and to see that they do not transgress their
limit
In JR, the court is not concerned with the merits or
correctness of the decision, but with the manner in which
the decision is taken or order is made
JR is a weapon not a weapon
Under JR, it has to consider whether a decision-making
authority exceeded its powers, committed an error of
law, violated rules of natural justice, reached a decision
which no reasonable man would have reached or
otherwise abused its power
Though the court is not expected to act as a court of
appeal, nevertheless it can examine whether the
“decision making process” was reasonable , rational, not
arbitrary or not violative of art 14 of the Constitution
Parameters of JR must be clearly defined and never
exceeded
Unless the order passed by an Administrative authority is
unlawful or unconstitutional, power of Judicial Review
cannot be exercised
Order of administration may be right or wrong-so long
as it is bona fide and within the limits of the authority, no
interference is called for
Power of JR is supervisory in nature
Two principles on which the existence of discretionary
powers can be controlled , have now been judicially
settled. They are:
1. where there is abuse of discretion or improper exercise
of the discretion
2. where the exercise of the discretion is in excess of the
authority i.e. ultra vires
WHERE THERE IS ABUSE OF DISCRETION OR
IMPROPER EXERCISE OF THE DISCRETION.
1 . with mala fide intention
2. for improper purpose
3. colorable exercise of power
4. For irrelevant consideration
5. leaving out relevant consideration
6. unreasonably
7. without the application of mind
8. Mechanically
9. Inconsistent with the spirit and purpose of the powers.
10. Exceeding jurisdiction the discretion is abusive
discretion.
where the exercise of the discretion is in excess of the
authority i.e. ultra vires.
1. Non-exercise of Discretion by himself(Sub-delegation
2. Non-compliance of procedure ( Imposing fetters on the
exercise of discretionary power)
3. Non-application of mind(Acting mechanically)
FAILURE TO EXERCISE DISCRETION
SUB-DELEGATION
Well known principle that when a power has been
confided to a person in circumstances indicating that
trust is being placed in his individual judgment and
discretion, he must exercise that power personally unless
he has been expressly empowered to delegate it to
another
IMPOSING FETTER ON DISCRETION
An authority entrusted with discretion power must
exercise the same after considering individual cases.
Instead of doing that if the authority imposes fetters on its
discretion by adopting fixed rules of policy to be applied
in all cases coming before it, there is failure to exercise
discretion on the part of that authority
No facts of an individual case be considered if a general
rule be pronounced
example
ACTING UNDER DICTATION
Sometimes, an authority entrusted with a power does not
exercise that power but acts under the dictation of a
superior authority
Here, the authority invested with the power purports to
act on its own but ‘in substance’ the power is exercised
by someone else
The authority concerned does not apply its mind and take
action on its own judgment, even though it was not so
intended by the statute. In law, this amounts to non-
exercise of power by the authority and the action is bad
Commr. Of police v. Gordhandas Bhanji
NON-APPLICATION OF MIND
When a discretionary power is conferred on an authority,
the said authority must exercise that power after
applying its mind to the facts and circumstances of the
case in hand.
If the condition is not satisfied, there is clear non-
application of mind on the part of the authority
concerned.
The authority might be acting mechanically, without due
case and caution or without a sense of responsibility in
the exercise of its discretion. Here also, there is failure to
exercise discretion and the action is bad
POWER COUPLED WITH DUTY
Several statutes confer powers on administrative
authorities and officers to be exercised by them in their
discretion
It was held that the licensing authorities were bound to
renew licenses of cab drivers if the prescribed procedural
requirements had been complied with
Similarly, local authorities were bound to approve
building plans if they were in conformity with the laws
L. Hirday Narain v. ITO:
If a statute invests a public officer with authority to do an
act in a specified set of circumstances, it is imperative
upon him to exercise his authority in a manner
appropriate to the case when a party interested and
having a right to apply moves in that behalf and
circumstances for exercise of authority are shown to
exist
Even if the words used in the statute are prima facie
enabling the courts will readily infer a duty to exercise
power which is invested in aid of enforcement of a right-
public or private- of a citizen
