Administrative Discretion

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The concept of Administrative Discretion has assumed great
importance with the rapid growth of Administrative Law.
The emergence of welfare state has led the government to
perform multitudinous functions to address myriad socio-
economic grievances of the people.

Wade, in his famous work[1] says, "Traditionally, delegating

legislative power to the executive was looked down upon as
a necessary evil". Gradually, states transitioned from being a
police state to a welfare state and gave up the theory of
"laissez faire" thereby becoming more open to the idea of
delegated legislation.

In a modern democracy, it is practically impossible to

legislate directly on every matter relating to public
importance and implement policies without the backing of a
well-oiled administrative machinery. The exercise of
administrative discretion is of paramount importance to
facilitate good governance based on the principles of
natural justice. In other words, it can be said that
administrative action is guided by administrative discretion.

In 1941, Sir Cecil Carr in his lectures on bureaucracy pointed

out that "any statute book will be incomplete and
misleading if not read along with the delegated legislation".
[2] Administrative action adds flesh and blood to the policy
framework created by the legislature. The infringement of
citizens rights looms large in the presence of arbitrariness in
administrative action.

Lord Denning has rightly said:

"Properly exercised, the new powers of the executive lead to
the welfare state; but abused they lead to the totalitarian
state".[3] Therefore, it can be inferred that administrative
discretion cannot be unfettered and that it's purpose should
be to complement the law-making function of the legislature
and not to overpower it.

Administrative Law aims to establish a proper conduct for

the administrative authorities to limit their discretionary
powers from turning arbitrary. The discretionary power
bestowed upon the executive by law is open to judicial
review so that it works within the permissible limits. Various
countries have interpreted the scope of judicial review in
administrative action from time to time. which has led to
remarkable advances in the field of administration. As a
result, the scope of administrative discretion has enlarged
over time.

Meaning of Administrative Discretion

In layman's language, discretion means an ability to make
informed choices. It is an inherent quality to discern right
from wrong and arrive at decisions based on reason and not
according to personal whims and fancies.

In Rooke's Case, Lord Edward Coke laid down the definition

of discretion as, "a science or undertaking to discern
between falsity and truth, between right and wrong,
between shadows and substance, between equity and
colourable glosses and pretences, not according to the will
and private affections".[4]

Administrative discretion implies the authority vested in the

executive i.e. the public officials to undertake administrative
action based on their judgment. It is noteworthy here that
administrative discretion can include the power to act or not
to act. It encapsulates various administrative activities like
regulation of private enterprise, production, manufacture
and distribution of essential commodities etc for securing
social security of the people. Other ministerial functions
include investigation, detention, seizure, confiscation, and
destruction ot property etc. The ambit of administrative
function is wide and undefined.

The Supreme Court in Ram Jawaya Kapoor case[5] had

referred to the administrative function as 'residuary
functions' due to the quantum of functions undertaken by
the executive other than the law-making functions and the
judicial functions. A statute uses the word 'may' and phrases
such as if he is satisfied or if he is of the opinion or if he
reason to believe to confer discretionary power to the
executive.

In State of Punjab v. Khan Chand, the Supreme Court was

of the view that:
Considering the complex nature or problems which have to
be faced by a modern state, it is but inevitable that the
matter of details should be left to the authorities acting
under an enactment. Discretion has, therefore, to be given
to the authorities concerned for the exercise of the powers
vested in them under an enactment.[6]

Administrative discretion is the principal source of

creativeness in government and in law. Wide discretion
must be in all administrative activity.[7] However, it should
not be unfettered so as to turn arbitrary and affect the
principles of the rule of law.

History of Administrative Discretion

The concept of Administrative Discretion dates back to the
time when the well-known Greek philosopher Socrates laid
the foundation for philosophical ethics. He devised a certain
criterion that could determine the course of action to be
taken in any immediate situation. In laying down such
morals, he enumerated the concept ot Administrative
Discretion.

Andrew Jackson and the US Postal Service

"Nobody knows what he will do when he does come...My
opinion is, that when he comes he will bring a breeze with
him".[8]

These were the words of Daniel Webster, written by him on

the eve of Jackson's inauguration. He described him as not
just a man or an administration but an era. Leonard White
has called the Jacksonian era as "years of almost
uninterrupted excitement, tension, crisis and apprehension.
[9] When Jackson presided over the office in 1829, America
was undergoing rapid social, economic, technological and
political changes. Considering the need for increase in
administrative activities, he bureaucratized the
administration. He was quite suspicious of his political
opponents which is why he started making appointments of
his close friends in the administration.

He came up with a program to remove people from the

federal job posts and replace them with loyal employees.
This was known as the "spoils system" under which the
presidential administrators had the authority to hire or fire
federal workers. It was also known as the patronage system
and it had overwhelming backing of the Jackson supporters
as they believed it to be necessary for reforming the federal
government. Jackson received scathing attack from his
opponents for his policy. Subsequently, he brought in the
Patent Reform Act of 1836 which led to the creation of new
offices and adjudicatory administrative boards. This was
widely seen as a new era in administrative discretion.

Various presidents succeeding Jackson followed his example

of appointing members to the administration. On many
accounts, administrative officials were seen abusing their
powers. Throughout the 19th century, there were concerted
attempts to exercise control over administrative discretion
but to no avail. Substantial changes took place in the 20th
century and the concept of administrative discretion found a
new direction.

Franklin Roosevelt's New Deal brought much needed respite

to the public as it introduced and implemented various
welfare schemes at a time of crisis. This led to the creation
of innumerable agencies and boards which were of great
help to the public. The New Deal stressed the importance of
administrative discretion and answered an important
question as to who would be governing the future welfare
programs.

Another remarkable development was the Administrative

Procedure Act, 1946 which was created to govern the
procedure of the administrative agencies. It provided
opportunities to the public to comment on proposed rule
making. It provided for the issuance of licenses, policy
statements, permits etc. It also lays down the standards for
judicial review if a person has been aggrieved by an agency
action.

Need of Administrative Discretion

The doctrine of laissez faire was prevalent when Dicey
formulated the rule of law. The role of the then police state
was limited confined to the maintenance of law and order.
With the sharp decline of the doctrine of laissez faire over
the years, more and more countries adopted the concept ot
a welfare state and an urgent need was felt for economic
development and social change. Today, whether in
socialistic countries or in capitalist societies, it is impossible
to find a government that can function without conferring
discretionary power to the executive.

The Supreme Court has observed in the case of Paschim

Banga Khet Mazdoor Samity v. State of West Bengal,
"The Constitution envisages the establishment of a welfare
state at the federal level as well as the state level. In a
welfare state the primary duty of the government is to
secure the welfare of the people".[10]
Whether an action is required on ground can only be
determined by the officials posted in grassroot levels.
Administrative discretion comes to the rescue in problems
where direct legislation is not possible. Optimum utilisation
of resources is a pre-requisite to create a welfare state. The
modern state performs multitude of tasks like alleviating
poverty and unemployment, formulating policies for
nutrition, health and family welfare.

It also seeks to regulate enterprise and the supply of goods

and services. The implementation of the aforementioned
welfare schemes is possible only through proper
administration. Amid social and economic development,
various offences also take place like economic smuggling,
adulteration, tax evasion etc that need to he curbed.

Prof Wade in his work has stated:

If the state is to care for its citizens from the cradle to the
grave, to protect their environment, to educate them at all
stages, to provide them with employment, training, houses,
medical services, pensions and in the last resort food,
clothing and shelter, it needs a huge administrative
apparatus. Relatively little can be done by merely passing
Acts of Parliament and leaving it to the courts to enforce
them. There are far too many problems of detail and far too
many matters which cannot be decided in advance. No one
may erect a building without planning permission, but no
system of general rules can prescribe for every case. There
must be discretionary power".[11]
Control of Administrative Discretion
"Power tends to corrupt and absolute power corrupts
absolutely". -Lord Acton

Granting discretionary power to the executive is as

important as keeping it under check in a welfare state so
that the power is not misused. In this rule of law
proposition, Dicey was of the view that there should not be
any discretionary power in the hands of the executive as
personal discretion would result in arbitrariness and
discrimination. Modern day scholars like Prof. Goodhart
believe that reasonable limits must be imposed upon the
discretionary power of the administrative officers instead of
negating the idea of administrative discretion.

The judiciary has played a key role in imposing restrictions

on administrative discretion and has from time to time
directed the legislature to formulate necessary guidelines
and rules to maintain the conduct of the administrative
officers. The system of checks and balances is an essential
feature of the Indian Constitution. Although the Indian
Constitution doesn't specifically talk about the rigid
separation of powers like the one in America, it is generally
accepted that such a separation of powers does exist.[12]

Referring to administrative discretion, Wade says, "If

discretionary power is to be tolerable it must be kept under
two kinds of control: political control through Parliament
and legal control through judiciary".[13]
Parliamentary Control
The Parliamentary control of administrative discretion has
its own limitations because the legislature can hardly spare
time to examine individual cases involving administrative
discretion. Also, if the lawmakers take up the role of
administrators of law, then the general public would be left
with no remedy in cases of injustice.[14] In India, the
Parliamentary control over administrative action is more of
a constitutional obligation because the Executive is
accountable to the Parliament.

In India and England, there exists a democratic

Parliamentary form of government. The Parliament
exercises effective control over the Executive. The natural
remedy available to those aggrieved by any administrative
action is to write to his/her Member of Parliament to seek
redressal. The member may, in turn raise the issue
informally with the Minister concerned or formally in the
Lower House i.e. the Lok Sabha in the course of the debate.

Judicial Control
The entire law of judicial control of administrative discretion
is based on the assumption that the real kernel of
democracy lies in the courts which enjoy ultimate authority
to control the discretionary powers bestowed on the
executive.[15] The absence of judicial control over
administrative action may lead the executive to commit
excesses. Such a situation would be contrary to the ideals of
democracy and the concept of rule of law.
It was held in the case or Kesavananda Bharti v. State of
Kerala[16], that judicial control is not just an integral part of
the Indian Constitution but also a part of the basic structure
which cannot be whittled down even through an
amendment of the Constitution. Judicial control of
administrative action is based on the principle that all
powers must be exercised within the ambit of law. Unless
the administrative action is violative of the Constitution, or is
arbitrary in nature, the courts do not interfere with
administrative decisions. While determining the validity of
any administrative action, the courts exercise supervisory as
well as appellate jurisdiction.

Grounds of judicial review

Generally, judicial review of an administrative action
can be exercised on the following grounds:

1. Illegality
This ground of judicial review is based on the principle
that administrative authorities should exercise their
powers within the ambit of law. If they lack jurisdiction,
fail to exercise jurisdiction or exceed their jurisdiction, it
shall be deemed that they have acted "illegally". Any
action undertaken by them can be quashed by the
court on the ground of illegality.
 
2. Irrationality
Irrationality as a ground of judicial review was
developed by the court in the case of Associated
Provincial Picture House Ltd. V. Wednesday Corpn.[17].
It came to be known as "Wednesday test". A decision of
 the administrative authority is considered irrational if:

o It is without the authority of law.

o It is based on no evidence.

o It is based on irrelevant consideration.

o It is outrageous in its defiance to logic.

 
3. Procedural impropriety
If any administrative action lacks "fair procedure", then
it is one of the grounds for the quashing of the action.
The need for fair procedure may arise in following
ways:

o As a constitutional mandate when fundamental

rights are violated.
o As a statutory mandate when any statutory
requirement or procedure is not followed.
o As an implied requirement when statute is silent
about procedure.

4. Proportionality
Proportionality implies that the administrative action
must not be more drastic than it ought to be. The
saying that goes well with this doctrine is "canon should
not be used to shoot a sparrow". Proportionality has to
do with reasonableness of administrative action. The
Doctrine of Proportionality is applied when:

o An administrative action curtails fundamental

rights.
 o A question relating to the quantum of punishment
imposed is involved.

The mechanism of judicial control of administrative

action falls into three categories:

a. Special Leave Petition

Article 136 of the Indian Constitution lays down that the

Supreme Court may, as per its discretion grant special
leave to appeal from any judgment, decree, order or
sentence in any matter passed by any court or tribunal
except those constituted under any law related to the
Armed Forces.

Since the Supreme Court is empowered with a plenary

jurisdiction to hear appeals against decisions of
Administrative Tribunals, it is considered to be an
important mode of judicial review of administrative
actions. It was held in the case of Durga Shanker
Mehta v. Raghuraj Singh[18] that the court would
entertain special leave only where the need of justice
demands its interference. The court would interfere
only after examining whether the decision is arbitrary
in nature.

In the case of Sanwat Singh v. State of Rajasthan[19],

it was observed by the court that Article 136 bestows
upon the Supreme Court wide discretionary powers to
grant special leave to appeal. The court would usually
grant special leave to appeal in exceptional cases in
which grave injustice has been committed by
disregarding the legal process or going against the
 principles of natural justice.
 

b. Supervisory jurisdiction of High Court under Article 227

The power of judicial review has been conferred on all

High Courts under Article 227 of the Indian
Constitution. It provides that every High Court shall
have superintendence over all courts and tribunals
under its jurisdiction. It was held in the case of Ram
Roop v. Bishwa Nath thay this supervisory power is
judicial as well as administrative in nature. The
supervisory jurisdiction keeps the subordinate
tribunals within limits.

The principle grounds on which the supervisory

power can be exercised are as follows:

o Excess of jurisdiction.[20]
o Failure to exercise jurisdiction.[21]

o Violation of principles of natural justice.[22]

o Error of law apparent on the face of record.

 
c. Extraordinary and Ordinary Remedies.

Administrative action is also controlled through the

extraordinary and statutory ordinary remedies
provided under the Constitution. Provisions for
extraordinary remedies are enshrined under Articles 32
and 226 of the Constitution. The Supreme Court and
High Courts can issue writs of Habeas Corpus,
Certiorari, Mandamus, Prohibition, Quo-warranto to
control administrative actions. The ordinary remedies
 are included under various statutes e.g., declaration,
damages, injunction etc.

Conclusion
Administrative Discretion is an vital component in the field
of Administrative Law that regulates day-to-day
administrative actions. It revolves around the principle of
rule of law. Administrative discretion has to be in sync with
the principles of rule of law inorder to be constitutionally
valid.

Administrative Discretion is not unfettered and is subjected

to judicial review so that administrative actions do not turn
arbitrary. Judiciary plays a vital role in examining
administrative actions. The parameters of judicial control of
administrative discretion are well-settled and are still
evolving with various judicial pronouncements.