Module V: Administrative Discretion

Meaning of Discretion
In simple terms, discretion means the ability to choose an option from the various, or at least
two alternatives available. In the administrative law sense, it can be simply said to be the ability
of the administrative authority to pick and choose from the alternatives available before it.
 Sir Edward Coke defined discretion as the knowledge to distinguish between falsity and
truth, or right and wrong, without resorting to any personal reasons.
 In the case of Susannah Sharp v. Wakefield, Lord Halsbury opined that when something is
left to administrative discretion, it means that it has to be done in accordance with the
principles of justice and reason and not on the basis of the private opinion of the authority
concerned.
 It can be said that in pursuance of administrative discretion, the authority in question has to
take decisions not only on the basis of the evidence and is also bound to consider the policy
and expediency.

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 of 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".
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 be 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".

Need for conferring discretionary powers on administrative authorities:

The conferring of discretionary powers on administrative authorities is necessary for several
reasons:
1) Case-by-case Decision Making: Administrative authorities often encounter situations that are
not explicitly addressed by laws or regulations. By conferring discretionary powers,
authorities can make decisions on a case-by-case basis, taking into account the specific
circumstances and context of each situation.

2) Complexity of Issues: Many administrative matters involve complex and multifaceted issues
that cannot be addressed through rigid rules or procedures alone. Discretionary powers
enable authorities to exercise judgment and expertise in navigating these complexities and
arriving at informed decisions that best serve the public interest.

3) Flexibility: Discretionary powers provide flexibility in the administration of laws and

regulations, allowing authorities to tailor their actions to meet the needs of particular cases
or to respond to changing circumstances. This flexibility is particularly important in dynamic
environments where regulatory requirements may need to adapt to evolving social,
economic, or technological conditions.

4) Efficiency: In situations where strict adherence to rules would result in delays or

inefficiencies, discretionary powers empower administrative authorities to act promptly and
decisively. This can help expedite processes, facilitate the delivery of public services, and
address urgent matters in a timely manner.

5) Promotion of Fairness and Equity: Discretionary powers allow authorities to consider

individual circumstances and mitigating factors when making decisions. This promotes
fairness and equity by ensuring that outcomes are tailored to the specific needs and
circumstances of each case, rather than applying a one-size-fits-all approach.
6) Expertise and Accountability: Administrative authorities often possess specialized
knowledge and expertise in their respective areas of responsibility. Conferring discretionary
powers enables them to apply this expertise in decision-making, ensuring that judgments are
informed by professional judgment and experience. At the same time, authorities remain
accountable for their actions and decisions, subject to oversight and review mechanisms to
ensure that discretionary powers are exercised lawfully and in the public interest.

Statutory Control
Control Over Its Mis-Exercise at the Stage of Conferment and Exercise
There are three main heads under which the control over administrative discretion exercised.
1. Parliamentary Control over administrative discretion
2. Judicial Control over administrative discretion
3. Procedural and Executive Control

 There is Control over the potential mis-exercise of administrative discretion at both the stage
of- conferment and exercise under the above heads.

Control Over Conferment of Discretionary Powers:

o Legislative Oversight: The legislative branch can control the conferment of discretionary
powers by enacting laws that clearly define the scope, limits, and purposes for which such
powers may be exercised. This includes specifying the conditions, procedures, and standards
that must be met before discretion can be exercised.

o Delegation Limits: Legislatures can impose limits on the delegation of discretionary powers,
ensuring that only necessary and appropriate powers are delegated to administrative
authorities. This helps prevent the overreach of executive authority and maintains the
separation of powers.

o Judicial Review: Courts can review the constitutionality and legality of laws delegating
discretionary powers to administrative authorities. Judicial review ensures that laws are
consistent with constitutional principles, including fundamental rights and the rule of law,
and that they do not confer excessive or arbitrary discretion.
In P.B. Samant v. State of Maharashtra, the court held the distribution of cement against the law and the
circulars or guidelines issued by the Government on that behalf as bad. The distribution of cement was in favour
of certain builders in return for the donations given by them to certain foundations of which the Chief Minister
was a trustee. It was a clear case of mala fide exercise of power. The power to control the distribution of an
essential commodity like cement is given to the Government with a view to ensuring its equitable distribution.
When this power is used for obtaining donations for a trust, it is a clear case of abuse of power.

o Administrative Guidelines: Legislatures may provide administrative authorities with

guidelines, frameworks, or policies to govern the exercise of discretionary powers. These
guidelines clarify the objectives, criteria, and procedures to be followed, helping to ensure
consistency and fairness in decision-making.

Control Over Exercise of Discretionary Powers:

o Procedural Safeguards: Administrative procedures can include safeguards such as notice,
hearing, transparency, and the opportunity for affected parties to present evidence or
arguments before a decision is made. These procedural safeguards help ensure that decisions
are made fairly and impartially.

o Internal Review Mechanisms: Administrative agencies can establish internal review

mechanisms to scrutinize and monitor the exercise of discretionary powers by their officials.
This may include peer review, supervisory oversight, or administrative tribunals tasked with
reviewing decisions for compliance with legal requirements and administrative policies.

o Ombudsman Institutions: Ombudsman institutions can provide independent oversight of

administrative actions, including the exercise of discretionary powers. Ombudsmen
investigate complaints of maladministration, including allegations of abuse of discretion, and
can recommend corrective actions or remedies to address shortcomings in decision-making
processes.

o Judicial Review: Courts play a crucial role in reviewing the exercise of discretionary powers
by administrative authorities. Judicial review ensures that decisions are made within the
scope of authority conferred by law, are consistent with legal standards and principles, and
do not violate fundamental rights or principles of fairness and reasonableness.

o Public Accountability: Administrative authorities are ultimately accountable to the public for
the exercise of discretionary powers. Transparency, public consultation, and reporting
requirements can help promote accountability and public confidence in the integrity and
fairness of administrative decision-making processes.
By implementing these control mechanisms, governments can mitigate the risk of mis-exercise
of administrative discretion, uphold the rule of law, and safeguard the rights and interests of
citizens.
[For more information regarding this topic- https://lawbhoomi.com/grounds-of-control-on-administrative-discretion/ ]
 Judicial Review of Administrative Discretion
Though the courts won’t ordinarily interfere with the decisions of administrative authority taken
in the exercise of its discretion, yet, the legislature must refrain from giving unfettered
discretionary powers to administrative authorities, in which case the courts will have to
intervene.
In India, courts interfere with the discretionary powers of administrative authority in following
two situations-
- Firstly, failure of the authority to exercise the discretion given to it and
- Secondly, abuse of discretion by the authority.

o Failure of the Authority to Exercise the Discretion-

Failure of the authority to exercise the discretion available to it deals with situations in which
the authority has sub-delegated its authority to someone else though there is no such express
provision which directs it to do so, non-application of mind by the authority, cases of power
coupled with duty, imposing fixed rules in each case instead of judging each case on its merit,
etc.
o Abuse of Administrative Discretion-
Wherever discretion has been conferred upon an administrative authority, it must act within the
confines of the law and exercise its discretion in accordance with the law. The expression abuse
of administrative discretion, simply put, refers to situations whereby the administrative
authority has exercised the discretion available to it in an unreasonable or improper manner. In
such cases, the court may intervene and issue the requisite direction in the case.
The grounds on which judicial review can be sought for alleged abuse of administrative
discretion are as follows:
 Administrative authority acts in a domain in which it does not have jurisdiction.
 The authority acts in excess of the jurisdiction given to it by the legislature.\
 The authority has attempted to do indirectly what it is not allowed to do directly i.e., the
colorable exercise of power.
 Irrelevant considerations have been taken into account by the authority while arriving at a
conclusion.
 Relevant considerations have not been taken into account by the authority while arriving
at a conclusion.
 The action of the authority is arbitrary.
 The authority has acted in a mala fide manner.
 Non-adherence to the principles of natural justice.
 Unreasonableness.
  The law from which the authority derives its discretion is colorable legislation.

Case Laws:
 In the case of Darshan Lal Mehra v. Union of India, the Supreme Court upheld the
constitutionality of ‘theatre tax’ which was imposed by Lucknow Mahanagar Palika, at the
rate of Rs. 5 per cinema show held in a building which had a rental value of Rs. 10,000 or
more and Rs. 3 per show in other cases, under the U.P. Nagar Mahapalika Adhiniyam, 1959
which allowed the Mahapalikas to impose a tax “for the purposes of this Act” and rejected
the contention that the use of this expression was a case of excessive delegation, holding that
the obligations and functions of Mahapalikas are well defined and tax can be imposed only
in accordance with the provisions of the Act. Further, the classification of cinema houses on
the basis of rental value was also upheld as, the Court observed, the rental value reflected the
seating capacity, quality, and locality of cinema houses, all factors which affect the
entertainment value and the tax is imposed on entertainment, meaning that the classification
is based on intelligible differentia (difference in rental value) and has a rational nexus with
the object (tax on entertainment).

 In the case of Express Newspaper (P) Ltd. v. Union of India, a notice of re-entry upon
forfeiture was issued by the Government to the Indian Express newspaper. The newspaper
alleged that the notice was mala fide and was based on extraneous consideration – critical
commentary on the Congress government by the Indian Express. The government did not
deny the allegations but dubbed them irrelevant. The Court quashed the notice for being
mala fide and also opined that it is for the Court to decide what is relevant or not. The parties
are not supposed to tell it.

 In the case of J.K. Aggarwal v. Haryana Seeds Development Corporation, a Company

Secretary challenged the validity of an inquiry conducted against him, which led to his
dismissal, on the ground that there was a violation of natural justice as he was not allowed
legal representation even though the presenting officer of the company was a legally
qualified person. The Supreme Court of India accepted the arguments and held that the
inquiry was conducted in violation of natural justice principles as the appellant was not
allowed legal representation, which led to the denial of a fair chance to him to represent his
case in the best way possible against a trained prosecutor.

 In the case of Pratap Singh v. The State of Punjab, a surgeon’s preparatory leave to
retirement was canceled after being granted and then he was suspended. Finally, he was
dismissed. The dismissal was set aside as his allegation that the actions were mala fide as he
did not yield to illegal demands of the CM were accepted by the Court. In the case of the
State of Bihar v. Ganguly, it was held that the High Court can issue a writ of certiorari filed
mandamus in relation to an order of reference issued by the appropriate government under
 Section 10 of the Industrial Disputes Act, 1947. By certiorari, the order of the appropriate
government can be corrected and by mandamus, the appropriate government can be directed
to consider the matter afresh.
Non-Statutory Control
Wednesbury Principle:
The Wednesbury principle, derived from the famous case Associated Provincial Picture Houses
Ltd v Wednesbury Corporation (1948), is a cornerstone of administrative law that sets a
standard for judicial review of administrative decisions. Though originating from a UK case, the
principle has influenced administrative law doctrines in various common law jurisdictions,
including India.
The essence of the Wednesbury principle lies in assessing the legality of administrative
decisions by scrutinizing whether they are so unreasonable that no reasonable authority could
ever have arrived at them. In simpler terms, it establishes a high threshold for courts to interfere
with administrative decisions, intervening only if a decision is found to be irrational or
unreasonable in the extreme.
The action of the administrative authorities would be declared unconstitutional if it meets the
following circumstances:
 If the action has no backing of the law;
 There is no evidence to back the action of the authority;
 The action is based on irrelevant and extraneous consideration;
 The action is so outrageous and is so unreasonable that no reasonable person in their
wildest of dreams would reach that particular conclusion.
For example, a ration distribution authority comes up with criteria that only people with black hair will receive
their rations, it would be considered highly outrageous and unreasonable. Such an order would be struck down
using the Wednesbury principles.

Key features of the Wednesbury principle include:

o Unreasonableness Standard: The principle focuses on identifying decisions that are patently
unreasonable or absurd, rather than merely mistaken or incorrect. It aims to prevent courts
from substituting their own judgment for that of administrative bodies unless the decision is
fundamentally flawed.

o Discretionary Decision Making: It is often applied in cases involving discretionary powers

wielded by administrative authorities. Recognizing the need for administrative bodies to
exercise judgment and discretion within the bounds of their legal authority, the principle
 ensures that courts do not unduly interfere with these decisions unless they are demonstrably
unreasonable.

o Objective Assessment: The Wednesbury principle requires courts to adopt an objective

standard when reviewing administrative decisions. This means evaluating whether a
reasonable decision-maker, given the same evidence and circumstances, could have arrived
at the same conclusion. It does not hinge on whether the court agrees with the decision but
rather on whether it falls within a reasonable range of outcomes.

o Judicial Restraint: Embodying a doctrine of judicial restraint, the principle acknowledges the
expertise and authority vested in administrative bodies. Courts are cautious about overruling
administrative decisions and generally defer to the specialized knowledge and judgment of
these bodies, intervening only in cases of egregious unreasonableness.
In the Indian legal context, the Wednesbury principle has been widely adopted and applied in
cases involving judicial review of administrative actions. Courts in India rely on this principle
to assess the reasonableness of administrative decisions, particularly those involving exercises
of discretionary powers or the interpretation of laws. By maintaining a balance between
administrative autonomy and judicial oversight, the Wednesbury principle ensures that
administrative decisions are subject to scrutiny while safeguarding the legitimate authority of
administrative bodies.

Doctrine of Proportionality:
 Doctrine of proportionality is a principle that is used as a ground for judicial review in cases
of administrative action.
 While exercising administrative action, the body should keep in mind the purpose it seeks to
obtain and the means it is using to achieve it, and if its actions deviate from the object or are
discriminatory or disproportionate then they would be quashed by the court by using the
doctrine of proportionality.
 The doctrine of proportionality requires a body to maintain balance between its action and
purpose for which the powers have been conferred.

 The Doctrine of Proportionality is a fundamental principle in administrative law that governs

the exercise of governmental powers, particularly in matters where the rights or interests of
individuals are affected. It requires that any action taken by a public authority must be
proportionate to the legitimate aim it seeks to achieve. The doctrine originated in European
legal systems but has gained widespread recognition and application in various jurisdictions
worldwide, including India.
Key aspects of the Doctrine of Proportionality include:
o Legitimate Aim: The action taken by a public authority must serve a legitimate aim
recognized by law. This could include objectives such as public safety, national security,
public health, environmental protection, or the promotion of the public interest. The aim
must be lawful and compatible with constitutional principles and fundamental rights.

o Rational Connection: There must be a rational connection between the action taken by the
public authority and the legitimate aim it seeks to achieve. In other words, the means
employed must be suitable and conducive to achieving the intended objective. The action
should not be arbitrary or irrational but must be based on logical reasoning and evidence.

o Necessity: The action taken must be necessary to achieve the legitimate aim, meaning that
no less intrusive or restrictive measures are available to attain the same objective. The
authority must demonstrate that the action is proportionate to the gravity of the issue at hand
and that less restrictive alternatives have been considered and found inadequate.

o Proportionality in Strict Sense: This aspect of proportionality requires that the benefits of the
action outweigh its potential negative impact or infringement on the rights or interests of
individuals. The authority must carefully balance the competing interests involved and
ensure that the action is not disproportionate or excessive in relation to the intended
objective.

o Balancing of Interests: The Doctrine of Proportionality involves a delicate balancing of

competing interests, including the public interest, individual rights, and the broader societal
implications of the action taken. Courts play a crucial role in scrutinizing the proportionality
of administrative actions, weighing the benefits against the burdens and ensuring that the
rights of individuals are adequately safeguarded.

o Applicability in Judicial Review: The Doctrine of Proportionality is often invoked in cases

involving judicial review of administrative decisions. Courts assess the proportionality of
governmental actions, particularly those affecting fundamental rights or liberties, to
determine whether they meet the standards of reasonableness, fairness, and proportionality.
Example- A worker has not been regular at work in the factory, the punishment should be
proportional. To dismiss the worker permanently is not considered to be balanced. The
proportional approach would be to give a warning and treat absenteeism as unpaid leaves.

Doctrine of Estoppel:
The Doctrine of Estoppel is a legal principle that prevents a person from asserting a claim or
right that contradicts what they have previously stated or agreed upon, especially when such
assertion would be unfair or unjust. It is based on the principle of equity and fairness and aims
to prevent individuals from acting in a manner that is contrary to their prior representations or
conduct.
In administrative law, the Doctrine of Estoppel plays a significant role in ensuring fairness,
consistency, and the rule of law in the actions of government agencies and officials.

Key aspects of the Doctrine of Estoppel include:

o Representation by Government Officials: In administrative proceedings, government
officials may make representations, promises, or assurances to individuals or entities. These
representations can relate to matters such as eligibility for benefits, regulatory compliance,
licensing requirements, or procedural rights.

o Reliance by Individuals or Entities: Individuals or entities may reasonably rely on the

representations made by government officials to their detriment. For example, a business
might invest resources or change its operations based on assurances given by a regulatory
agency regarding compliance requirements.

o Change of Position: If individuals or entities change their position or suffer a detriment in

reliance on the representations made by government officials, it may be unfair or unjust to
allow the government to backtrack or act inconsistently with those representations.

o Estoppel as a Shield and Sword: In administrative law, estoppel can operate both as a shield
and a sword. As a shield, it prevents the government from enforcing its strict legal rights
against individuals or entities who have reasonably relied on its representations. As a sword,
it allows individuals or entities to enforce the representations made by the government
against it.

o Equitable and Promissory Estoppel: Administrative estoppel may take the form of equitable
estoppel, where preventing the government from acting inconsistently with its
representations would prevent unconscionable conduct or injustice. It may also manifest as
promissory estoppel when individuals or entities have relied on clear and unequivocal
promises made by government officials.

o Limits and Exceptions: While estoppel is a powerful equitable doctrine, its application in
administrative law is subject to certain limits and exceptions. For instance, estoppel cannot
override statutory provisions, public policy considerations, or legitimate administrative
discretion exercised in the public interest.
o Judicial Review: Courts may review administrative actions involving estoppel to ensure that
they are consistent with principles of fairness, reasonableness, and the rule of law. Judicial
review provides a mechanism for holding government agencies and officials accountable for
their representations and actions.
Overall, the Doctrine of Estoppel in administrative law serves to promote fairness, consistency, and
accountability in the actions of government agencies and officials. It ensures that individuals and entities are not
unfairly prejudiced by relying on representations made by the government and helps maintain public trust and
confidence in the administrative process.

 One notable example of the Doctrine of Estoppel in administrative law is the case of Union
of India v. Anglo Afghan Agencies [1968 AIR 718]. In this case, the Union of India entered
into a contract with Anglo Afghan Agencies for the purchase of certain goods. However, due
to a shortage of foreign exchange, the government issued an order prohibiting the
importation of the goods covered by the contract.
- Anglo Afghan Agencies argued that the government was estopped from relying on the order
prohibiting importation because it had previously given assurances that the necessary import
licenses would be issued. The company claimed that it had relied on these assurances to its
detriment by entering into contracts and making arrangements for the importation of the
goods.
- The Supreme Court of India, in its judgment, recognized the principle of estoppel against the
government in appropriate cases. It held that if the government makes a representation,
promise, or assurance to induce action and someone acts on it to their detriment, the
government cannot later act inconsistently with that representation, promise, or assurance.
The court found that the government was estopped from relying on the order prohibiting
importation because Anglo Afghan Agencies had relied on the assurances given by the
government to its detriment.

Doctrine of Legitimate Expectation:

The doctrine of ‘Legitimate Expectations’ is one amongst several tools incorporated by the
Court to review administrative action. This doctrine pertains to the relationship between an
individual and a public authority. According to this doctrine, the public authority can be made
accountable in lieu of a ‘legitimate expectation’. A person may have a reasonable or legitimate
expectation of being treated in a certain way by the administrative authorities owing to some
consistent practice in the past or an express promise made by the concerned authority.

Origin of doctrine of legitimate expectations:

The doctrine is not a specific legal right engraved in a particular statute or rule book. The first
time, an attempt was made to establish the principles of the doctrine were in the case of Council
of Civil Service Unions and Others v. Minister for the Civil Service (1985), that the decision by
the public authority should affect the person such that-
 His rights or obligations are altered, which are enforceable by or against him
 He is deprived of some benefit or advantage which he had been permitted by the
authorizing body in the past and which he could have legitimately expected to enjoy until
a valid ground for withdrawal of the same was communicated to him or he had been
assured by the decision making body that such a benefit or advantage would not be
withdrawn until him being given an opportunity of contending reasons as to why they
were withdrawn.
Essential elements of the doctrine of legitimate expectation:
The doctrine of legitimate expectation can be invoked by a person in civil litigation seeking
judicial intervention or control over administrative actions if the below essential elements of
the said doctrine are fulfilled.
1. The expectation must be legitimate
- If any prudent and ordinary man expects the same responsiveness or attitude from a
particular public authority, then the expectation is said to be legitimate.
- If the expectation is just a random thought not derived from or inferred from a particular past
event, it cannot be considered legitimate.
- Therefore, the court considers the question of the legitimacy of the expectation as a question
of fact and decides, not given the expectant’s perception but from the view of the larger
public interest.

2. Presence of an established and regular practice or express promise

- The term “established and regular practice” refers to the practices that are within the powers
of the authority and that have been performed regularly by a particular public authority in
the past for a considerable period.
- Because of such prior, established practice, the applicant or claimant has a legitimate
expectation.

3. Relationship between expectant and administrative authority

- The relationship can be a commercial transaction, a dealing, or even a negotiation on a
particular issue.
- The only requirement is that the expectant should have been engaged in a recognised
relationship with the authorities concerned.
- If the party, either in the past or present, has no relationship with the authority, then he
cannot invoke the doctrine of legitimate expectation.

4. Presence of an arbitrary decision by the administrative authority

- The decision taken by the administrative authority regarding the issue raised by the claimant
must be arbitrary, unfair, unreasonable, and violative of the principles of natural justice.
- If the court finds that the public authority has not considered factors such as public interest
or policy while passing an order, which is against the claimant, who is not even heard before
taking such a decision, then there is a strong basis for invoking the doctrine of legitimate
expectation.
- Contrarily, if the administrative authority took a decision in view of the larger public interest
or according to policy, the court would not interfere with the functioning of the public
authority, except in cases where the administrative decision constitutes an abuse of power.

5. The claimant must have a locus standi

- Besides the above essential element, which ensures a foundation to invoke the doctrine of
legitimate expectation, the claimant must also prove that his case has locus standi to get a
judicial review of the administrative actions by applying the said doctrine.
- However, in Union of India and Ors. v. Hindustan Development Corporation and Ors.
(1993), the Supreme Court decided that “legitimate expectation gives the applicant sufficient
locus standi for judicial review”.
- Thus, the doctrine of legitimate expectation comes with the doctrine of locus standi.

[For more information about doctrine of legitimate expectation- https://blog.ipleaders.in/legitimate-

expectaion/ ]