Date : 31st March, 2020

Lecture No. 01

Administrative Discretion.

Discretion in layman’s language means choosing from amongst the various available
alternatives without reference to any predetermined criterion, no matter how fanciful that
choice may be. A person writing his will has such discretion to dispose of his property in any
manner, no matter how arbitrary or fanciful it may be.

But the term “discretion” when qualified by the word "administrative” has somewhat
different overtones. ‘Discretion’ in this sense means choosing from amongst the various
available alternatives, but with reference to the rules of reason and justice and not according
to personal whims. Such exercise is not to be arbitrary, vague and fanciful but legal and
regular.

Lords Halsbury in sharp v. Wakefield rightly observed :

“Discretion means when it is said that something is to be done within the discretion of the
authorities that something is to be done according to the rules of reason and justice, not
according to private opinion ...according to law and not humour. It is to be, not arbitrary,
vague and fanciful, but legal and regular. And it must be exercised within the limit, to which
an honest man competent to the discharge of his office ought to confine himself’.... Professor
Freund has defined “administrative discretion” in the

following words:

. Administrative Powers over Persons and Property,

“When we speak of administrative discretions we mean that a determination may 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.” Thus, in short, here
the decision is taken by the authority not only on the basis of the evidence but in accordance
with policy or expediency and in exercise of discretionary powers conferred on that authority.
For Coke once said that discretion is a science or understanding to discern between falsity
and truth, between right and wrong, and not to do according to will and private affection.

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The legal'concept of discretion implies power to make a choice between alternative courses
of action. If only one course can lawfully be adopted, the decision taken is not the exercise of
a discretion but the performance of a duty.

(i) Conferment of discretion

Discretion is conferred in the area of rule-making or delegated legislation, e.g. when the
statutory formula says that the government may makes rules which it thinks expedient to
carry out the purposes of the Act. In effect, a broad discretion and choice are being conferred
on the government to make rules. Similarly, discretion is conferred on adjudicatory and
administrative authorities on a liberal basis, that is, the power is given to apply a vague
statutory standards from case to case.

Rarely does the legislature enact a comprehensive legislation complete in all details. More
often the legislation is sketchy or skelton, leaving many gaps and conferring powers on the
administration to act in a way it deems "necessary" or “reasonable"or if it “is satisfied” or “is
of opinion”. Rarely does the legislature clearly enunciate a policy or a principle subject to
which the executive may have to exercise its discretionary powers. Quite often, the
legislature bestows more or less an unqualified or uncontrolled discretion on the executive.
Administrative discretion may be denoted by such words or phrases as “public interest”,
“public purpose”, “prejudicial to public safety or security”, “satisfaction," “belief, “efficient”,
“reasonable” etc.

Thus, there is no set pattern of conferring discretion on an administrative officers. Freund an

American Scholar says in this regard'.A statute confers discretion when it refers an official
for the use of his power to beliefs, expectations or tendencies instead of facts, or to such
terms as ‘adequate’, ‘advisable,’ ‘appropriate’, ‘beneficial’, ‘competent’, ‘conversant’,
'detrimental', ‘expedient’, ‘equitable’, ‘fair’, ‘fit’, ‘necessary’, ‘practicable’, ‘proper’,
‘reasonable’, ‘reputable’, ‘safe’, ‘sufficient’, ‘wholesome’, or their opposite. These lack the
degree of certainty... They involve matter of degree or an appeal to judgment. The discretion
enlarges as the element of -future probability preponderates over that of present conditions; it
contracts where in certain types of case quality trends to became standardized, as in matters
of safety; on the other hand, certain applications of the concepts of immorality, fraud,

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restraint of trade, discrimination or monopoly are so controversial as to operate practically
like matter of discretion.

It is true that with the exercise of discretion on a case to case basis, these vague
generalizations are reduced into more specific moulds, yet the margin of oscillation is never
eliminated. Therefore, the need for judicial correction of unreasonable exercise of
administrative discretion cannot be over emphasised.

(ii) Need of discretion

Because of the complexity of socio-economic conditions which the administration in modern

times has to contend with, it is realised that a government having only ministerial duties with
no discretionary functions will be extremely rigid and unworkable and that, too some extent,
officials must be allowed a choice as to when, how, and whether they will act. The reason for
this attitude is that, more often than not, the administration is required to handle intricate
problems which involve investigation of facts, making of choices and exercise of discretion
before deciding upon what action to take.

Thus, the modern tendency is to leave a large amount of discretion with various authorities.
Statute book is now full of provisions giving discretion of one kind or the other to the
government or officials for various purposes.

The need for ‘discretion’ arises because of the necessity to individualize the exercise of
power by the administration, i.e. the administration has to apply a vague or indefinite
statutory provision from case to case. There are following good reasons for conferring
discretion on administrative authorities :

(a) The present day problems which the administration is called upon to deal with are of
complex and varying nature and it is difficult to comprehend them all within the scope of
general rules;

(b) Most of the problems are new, practically of the first impression. Lack of any previous
experience to deal with them does not warrant the adoption of general rules’

(c) It is not always possible to foresee each and every problem but when a problem arises it
must in any case be solved by the administration in spite of the absence of specific rules
applicable to the situation’,

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(d) Circumstances differ from case to case so that applying one rule mechanically to all cases
may itself result in injustice.However, from the point of view of the individual, there are
several disadvantages in the administration following the case to case approach as compared
to with the adoption of a general rule applicable to all similar cases. First, whereas case to
case decisions operate on the past facts, a general rule usually avoids retroactivity and
operates in future so that one has prior notice of the rules and thus may regulate his conduct
accordingly. In case to case approach, the individual may be caught by surprise and may not
be able to adjust his affairs in the absence of his ability to foresee future administrative
action. Second, the case to case approach involves the danger of discrimination amongst
various individuals; there arises a possibility of not getting like treatment under like
circumstances. Third, the process is time consuming and involves decision in a multiplicity of
cases. Also, there is a danger of abuse of discretion by administrative officials.In view of
these manifold disadvantages, a general rule is to be preferred to the case to case approach
and ought to be adopted wherever possible. It is desirable to have administrative uniformity
to the extent possible, because, as a matter of general principle, substantial lack of uniformity
would lead not only to administrative chaos but also to collapse of public confidence in
administrative fairness. In any individual case, it is highly relevant to take into account what
has been done in other cases of a similar nature, otherwise a decision may result which could
be regarded as beingimproper or discriminatory. This objective can be advised by several
ways viz.

First, law conferring discretion may itself seek to lay down the elements and standards which
the authority has to apply in exercising its discretion and selecting a course of action. This
means that the degree of discretion should be restricted by law itself as far as possible, or, in
other words discretion should be properly “confined and structured”.

Two, if a statute leaves a large amount of discretion in the hands of administration, the
administration itself lay down criteria with respect to which the discretion is to be exercised. !
t would help in predicting administrative decision in individual cases, thus, making
individual’s rights somewhat certain and reducing chances of abuse of administrative
discretion. It would also help in uniform application of the law in a large number of cases
which may have to be handled, especially when a number of parallel and co-equal
administrative authorities have to cope with cases arising under a particular scheme.

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Three, on a lower plane, to some extent administrative discretions and norms of practice can
be used, instead of the rules, for the purpose of achieving uniformity in discretionary
decisions, but these should be resorted to only when the scheme is too much in an
experimental stage and constant adjustment may have to be made for sometime to come
otherwise rules are preferable to directions as they can be enforced judicially.20 But it needs
to be emphasized that while laying down standards make the discretion somewhat less than
absolute, no amount of rules or directions can really eliminate the need for discretion because
administration functions in a verybroad area and individual cases and situations are bound to
arise which may fall outside the guiding norms and the administration will have to take some
decision therein. Not all acts of the administration can be bound by fixed rules. Many a time,
it may not be possible to prescribe it intelligible standards for the administration to follow.
All these considerations makes it inevitable that discretion be vested in the administration to
take care of individual cases. But it also brings in the question of judicial and other control
over discretionary powers.

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