NATIONAL LAW INSTITUTE UNIVERSITY,
BHOPAL
XI Trimester
ADMINISTRATIVE LAW II
Topic: Administrative Discretion and its control at the stage of
Conferment
Submitted To: Submitted By:
Prof. Sushma Sharma Shresth Mukharya
2015BALLB74
1|Page
ACKNOWLEDGEMENT
I am deeply grateful to Professor Sushma Sharma, for giving me the opportunity of
working on this project. I am indebted to her for providing me with essential guidance and
knowledge of the concepts of Administrative Law without which this project would not have
been possible.
I would also like to thank the Director of the National Law Institute University and the
Library for the provision of resources necessary for the research and publication of this project.
2|Page
CONTENTS
Introduction
Types of functions dischargeable by administration
Need for Discretion
Control of administrative discretion at conferment stage
Conclusion
Bibliography
3|Page
INTRODUCTION
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. Wakefield1 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 humor. 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’
It is known that with the abandonment of laissez faire and advent of the modern philosophy of a
“welfare” and “social service” state, the administrative organ, in practically every democratic
country, is performing more and more functions, and is thus increasingly impinging on the
citizen. The administration has acquired large powers and the trend cannot be said to have abated
as yet. The main tasks of the administrative organ are no longer merely police or political; it
performs vast regulatory and managerial functions. Formerly the various power of administration
were broadly classified as legislative, quasi-judicial and administrative. No scheme of
classification of powers is really satisfactory.
1
(1891) AC 173
4|Page
A significant phenomenon of the present-day administrative process, is conferment of
discretionary powers on administrative personnel to take decisions from case to case. There is a
tendency in all democratic countries that legislation, conferring powers on the executive is
usually drafted in broad and general terms; it leaves large area of choice to the administrator to
apply the law to actual, specific and factual situations, that is, from case to case, and does not
specify clearly the conditions and circumstances subject to which, and the norms with reference
to which the executive must use the powers conferred on it.
Because of the complexity of socio-economic conditions which the administration in modern
times has to contend with, the range of ministerial functions is very small and that of
discretionary functions "j much larger. It is realised that a government having only ministerial
duties with no discretionary functions will be extremely rigid and unworkable and that to 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.
Discretion is the all-pervading phenomenon of modern age. Discretion is conferred in the area of
rule-making or delegated legislation, e.g. when the statutory formula says that the government
may make rules which it thinks expedient to carry out the purposes of the Act, in effect, abroad
discretion and choice are being conferred on the government to make rules. The legislature
hardly gives any guidance as to what rules are to be made. Similarly, discretion is conferred on
adjudicatory, and administrative authorities on, a liberal basis, that is, the power is given to apply
a vague statutory standard from case to case. But this development is disquieting because,
according to a well known adage, “absolute power corrupts absolutely”, and therefore, broad
powers present possibilities of being misused and exercised in an arbitrary manner. The broader
the discretion, the greater the chance of its abuse as said by Justice Douglas of the U.S. Supreme
Court. “Where discretion is absolute, man has always suffered. Absolute discretion is more
destructive of freedom than any of man’s other inventions”. 2 And also: Absolute discretion like
corruption, marks the beginning of the end of liberty.” 3 It thus becomes necessary to devise ways
2
United State v. Wander Lick, (1951) 342 US 58 at 101.
3
New York v. United State (1951) 342 US 882 at 884
5|Page
and means to minimise the danger of absolute discretion, so that injustice is not done to any
single individual. It is not possible for this purpose to depend merely on the good sense of
administration itself to use its power properly, for broad power always breeds the danger that
will wielder will get power drink. Courts have to play a major role in the process of controlling
the functioning of the administration. In this connection the fundamental rights guaranteed by the
Indian Constitution play a significant role. The judicial control mechanism of administrative
discretion is exercised at two stages. First at the stage of delegation of discretion. At this stage,
the court may compel the legislature to desist from conferring too broad or uncabined
discretionary powers. In India, the courts have sought to spell out some limits on conferment of
broad discretionary powers by invoking the Fundamental Rights guaranteed by the constitution.
TYPES OF FUNCTIONS DISCHARGEABLE BY ADMINISTRATION
Functions dischargeable by the administration may either be “ministerial” or “discretionary".
Ministerial Functions
In politics “ministerial’ is commonly used as - an epithet appertaining to ministers or, more
broadly, to the party in office. We speak of ministerial responsibility, ministerial cheers. As a
technical legal term it has no single fixed meaning. It may describe any duty, the discharge of
which involves no element of discretion or independent judgement. Thus, a ministerial function
is one where the law prescribes the duty to be performed by the administrative authority in
certain and specific terms leaving nothing to the discretion or judgment of the authority, it does
not involve investigation into disputed facts or making of choices. The authority concerned acts
in strict obedience to the law which imposes on it a single and definite duty in respect of which it
has no choice.
According to Kair and Lawson “Many of the acts performed by public authorities or public
officers are done in strict obedience to rules of statute or common law which imposes on them a
simple and definite duty in respect of which they have no choice.” Gordon classifies the
functions of administrative authorities into judicial and non-judicial. Judicial functions involve
the decision of rights and liabilities so that an investigation and application of fixed legal
standards was a material part of the functions. Non judicial functions are further divided into
administrative and ministerial functions. Ministerial functions are exercised by taking active,
6|Page
often coercive measures, and administrative functions by meeting out policy and expediency
with unfettered discretion. When an administrative agency is acting ministerially it has no power
to consult its own wishes but when it is acting administratively its standards are subjective and it
follows its own wishes.
In Kavita v. State of Maharashtra4 it was held that the task of referring the question of detention
of a person to an advisory board under the COFEPOSA was a mechanical or ministerial act,
involving no exercise of discretion, though the government had the full liberty to revoke the
order of detention at that stage (as at all other stages).
Discretionary
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. Wakefield5 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 humor. 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’
NEED FOR 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
4
AIR 1981 SC 1641.
5
(1891) AC 173
7|Page
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’,
(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
8|Page
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 being improper 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.
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. 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 very
broad 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.
9|Page
CONTROL OF ADMINISTRATIVE DISCRETION AT CONFERMENT STAGE
Administrative discretion refers to the degree of latitude or flexibility exercised by public
administrators when making decisions or conducting any agency business. The chief source of
administrative discretion comes from legislative bodies that have drafted vague laws. The
skeletal statutes essentially allow public administrators the discretionary powers to interpret laws
as they see fit, as long as their discretionary interpretations do not contradict specific statutory
provisions.
It is seen whether the discretionary power is intra vires the constitution. While the constitution
allows conferment of administrative discretion, it requires the legislatures to lay down clearly the
parameters for the exercise of such discretion.
The grant of administrative discretion can be challenged on the ground that it violates the
fundamental rights guaranteed by the constitution.
State of Punjab v. Khan Chand6
The point is, however that no one ought to be trusted with power without restraint. Power can be
of encroaching nature, and its encroachments are usually, for the sake of what are sincerely
believed to be good, and indeed necessary, objectives. Throughout history the most terrible form
of tyranny has been the forcing of human beings of what someone believes to be good for them.
The imposition of controls on the use of delegated legislative authority, therefore, does not imply
a deep suspicion of malevolent intentions. Human nature, being what it is, has to be protected
against itself, and where power is concerned the very existence of the possibility of retraint, as
we shall see, is a safeguard against abuses which ends may be used to justify means and the good
in intent becomes the evil in effect.
Ram Krishna Dalmiya v. Justice Tendolkar7
It was held that the court would enquire whether the statute contained any policy or principles for
guiding the government in the matter of selection or classification. Court lays down the rule that
6
AIR 1974 SC 543
7
AIR 1979 SC 538
10 | P a g e
art. 14 forbade class legislation but not classification. The legislature might itself indicate
persons or things to whom its provisions were intended to apply.
CONCLUSION
Administrative discretion refers to the degree of latitude or flexibility exercised by public
administrators when making decisions or conducting any agency business. The chief source of
administrative discretion comes from legislative bodies that have drafted vague laws. The
skeletal statutes essentially allow public administrators the discretionary powers to interpret laws
as they see fit, as long as their discretionary interpretations do not contradict specific statutory
provisions. Administrative discretion should be exercised reasonably. Accordingly, a person
entrusted with discretion must direct himself properly in law. He must call his attention to
matters which he is bound to consider. He must exclude from his consideration matters which are
irrelevant to the subject he has to consider. If he does not obey those rules he can be said to be
acting unreasonably. Lord Diplock beautifully sums up wednesbury unreasonableness‟ as a
principle that applies to a decision which is so outrageous in its defiance of logic or of accepted
moral standards that no sensible person who applied his mind to the question to be decided could
have arrived at it
11 | P a g e
BIBLIOGRAPHY
Course Material Administrative Law II
https://indiankanoon.org/doc/1113423/
https://www.encyclopedia.com/law/encyclopedias-almanacs-transcripts-and-
maps/administrative-discretion
www.lawnotes.in
12 | P a g e
