Administrative Discretion is defined as the discretion given to the administrative authorities to carry out its daily functions and take decisions on the issues it encounters which have not been addressed by the legislation and the authorities have to take the decision themselves. But the discretion shall be given with a system to keep a check by way of Judicial Review otherwise there is a chance of misuse. The Paper starts with highlighting what Administrative Discretion is and what are its advantages and towards the end explains the role of judiciary in keeping a watch on the discretion used by the administration.
We have come far from the concept of laissez faire to social welfare where the laws are made for the welfare of the people and the governments continuously work to achieve this. In a democratic country like India, the law-making power lies with the elected representatives called the Parliament, but executing the laws passed by the Parliament is the responsibility of the Executive. To ensure that the Executive is able to perform its duties, some additional powers have to be conferred upon the Executive as not every decision can be taken by the Parliament.
Administrative Discretion in literal sense means the discretion which is used by the administration to carry out the functions. Discretion is the power to do something according to will. An individual taking any decision with respect to his life and property is a part of his discretion. Administrative Discretion though on the similar lines is different from the individual discretion as the authority is expected to take its decision with proper application of mind and with acceptable justification.
Lord Cock as rightly said, “Discretion is a science to understand the difference between truth & untruth, right & wrong and reasonable & unreasonable. They must not do their work under the influence of personal interest and to fulfill own will”.
Development of Administration
As already discussed, the discretion given to the administration is inevitable. The day to day functioning of the government involves a number of decisions that need to be taken immediately and prior consent of the elected representatives is not feasible. There are a number of reasons for the development of administrative discretion:
- Every problem or difficulty that is faced by the administration is generally one of a kind and a general thumb rule of solving the issues cannot be applied to every issue and thus leads to the need of increased discretion with the administration. This ensures flexibility in the working of the administration.
- Sometimes the problems faced by the administration is such that the law-makers are not capable to anticipate the needs as they lack technical knowledge and expert advice which is required for administration.
- The legislature works in a certain matter which lays down the basic structure and leaves some empty spaces to be filled by the discretion of the administration keeping in view the practical aspects. This discretion is necessary to protect the interests & rights of the people but at the same time it does make the administration responsible for the actions that it takes.
Discretion and Legality
The first thing that comes to one’s mind as soon as we talk about discretion is its abuse or unlawful use. With the walls of Separation of Powers becoming more and more permeable, the functions of the administrative authorities have increased before than ever. The Judicial System with its power of Judicial Review has time and again allowed the administration to work freely with due check to ensure that the administration does not arbitrarily exercise its discretion.
The Indian Courts by the virtue of the Constitutional Provisions have created a system of balance and proportionality for the decisions taken by the administration. The administrative action can be reviewed at both stages, one at the time where the power is being conferred upon the authority and later on when the power is put to use. Articles 14 and 16 of the Indian Constitution have acted as a regulator of the use of the discretionary powers by the administration. The supremacy of the Constitution is over every administrative decision and not just over the various legislations.
Administrative Discretion and Role of Judiciary
While all efforts are made to ensure that the discretion given to the administrative authorities are not misused, the powers given are often misused and a proper system to safeguard the rights of the people needs to be put in place to ensure justice for all. The courts have developed a lot of principles and laid down landmark judgments in this regard.
In the case of Ram Manohar Lohia v. State of Bihar, where under the relevant rules the authority was allowed to detain any person to prevent subversion of ‘public order’ and the petitioner in the present case was detained with a view to prevent him from acting in a manner which shall be detrimental to the law & order situation, the court held that the detention was illegal and ‘law & order’ was wider than the term ‘public order’
In the case of Satwant Singh v. Assistant Passport Officer, it was held that under the Passports Act of 1967 the passport officer was empowered to refuse to issue a passport without specifying any reason for the same and the same was violation of the discretion given to the officer and the Parliament was asked to frame the rules where reason shall be specified for any denial.
In the case of Air India v. Nargesh Meerza the question of validity of a service regulation passed by Air India was brought before the court which provided for termination of employment of an air hostess on her first pregnancy. It was held by the court that such a regulation passed by the authority was very much against the notions of a civilized society and was interference in the ordinary course of human nature. Pregnancy was considered nothing but a natural consequence of a marriage and was not some kind of disability. The Supreme Court considered this as abuse of discretion and the same was struck down.
It was held in the case of Govt. of AP v. M.T Khan that when two convicts were transferred from competent courts of MP and Maharashtra, the State of Andhra Pradesh had no say when the Governor of the State granted remission of them. The action by the government has held in excess of jurisdiction.
In the case of Accountant General v. S. Doraiswamy, the Supreme Court upheld the discretion granted to the Comptroller and Auditor General of India as the court said that the CAG was a constitutional post and a person at such a high ranking post could be expected to act in a certain manner and shall be using his discretion in a reasonable manner.
By reading the judgments given by the Hon’ble courts it becomes very clear as to how important role the judiciary plays in keeping a check on the reckless use of the discretion given to the administrative authorities.
Administrative Discretion is one of the most important aspects of the rule making process of the authorities. The discretion given to the Administration acts just like the cement between the bricks and fills the gaps which have been left by the legislation and ensures smooth functioning of the administration. Administrative Discretion is just like a double-edged sword. One hand it is very essential and cannot be done away with but at the same time special care needs to be taken in its use so that it shall not be used arbitrarily or without application of mind.
Any discretion becomes valid only when it is exercised within a certain limit and backed by justification. If the discretion given is unchecked it shall have the tendency of being exercised according to the whims and fancies of the authority which affects the rights of the citizens and the growth of the society in the long run. Experts are of the opinion that discretion if to be given shall be reviewed at the stage of conferment itself and a system of checks and balances. Fundamental Rights act as a great test for the validity of the administrative discretion. Any rule or statue which confers discretionary powers to the authorities which violates the Fundamental Rights especially Article 14, 16 or 19 shall be declared unlawful, arbitrary and void.
Frequently Asked Questions (FAQs)
- What is Administrative Discretion and what is need for it?
- What are the benefits of Administrative Discretion?
- What happens if discretion is not used wisely?
- Who keeps the check on the usage of Administrative Discretion?
- What is the criterion to check if the discretion is used wisely?
Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740
Satwant Singh v. Assistant Passport Officer, AIR 1976 SC 1836
Air India v. Nargesh Meerza, AIR 1981 SC 1829
Govt. of AP v. M.T Khan, AIR 2004 SC 428
Accountant General v. S. Doraiswamy, (1981) 4 SCC 93