PANJAB UNIVERSITY, CHANDIGARH ‘PANJAB UNIVERSITY CHANDIGARH A PROJECT REPORT ON: MEANING AND DEFINITION OF ADMINISTRATIVE. DISCRETION SUBMITTED TO: Miss. PUNEETISH SUBMITTED BY: APURVA SODHI B.A.LL.B. (HONS) SECTION-A SEMESTER: 6™ ROLL NO.: 6/19.CKNOWLEDGEME! This project became reality with the kind support and help of many individuals. I would like to extend my sincere thanks to all of them. Foremost, I want to offer this endeavour to our god almighty for the wisdom he bestowed upon me, the strength, peace of my mind and good health in order to finish this research. I would like to express my gratitude towards my family for encouragement which helped me in completion of this project. 1am highly indebted to my deparment, University Institute of Legal Studies, Panjab University, Chandigarh for providing me with opportunity to undertake this project work. Twwould like to express my special gratitude to my subject professor, Dr. Sangita Bhalla , for imparting knowledge and expertise in this study. Her guidance was valuable for me, Further, I recognize the fact that material I used in this project is not entirely mine. I reserve a special thanks to the sources I referred and collected material facts from there. Apurva Sodhi (6/19)TITLE PAGE NO. INTRODUCTION DEFINITIONS NEED MERITS DEMERITS CONCLUSION BIBLIOGRAPHYINTRODUCTION Administrative actions are either ministerial or discretionary. A ministerial function is one where the authority has a duty to do a particular thing in a particular way. Such actions are however exceptional. In most administrative actions, the administrative authority has the power either to act or not to act in one way or the other. This power to act or not to act in one way or other is called Discretionary power. ‘Discretion’ is the power to decide or act according to one’s judgment Administrative authorities have to exercise the discretionary powers in various ways. For instance whether a statute created for the nationalization of road routes is far and equitable or not or whether a dispute can be referred to the Industrial Tribunal act or not. They also have to decide whether the activities of a person or organization are likely to be prejudicial to the law or whether a person is likely to be threat to the security of the state or not. The problems of Administrative discretion are complex. It is true that in any intensive form of government, the government cannot function without the exercise of some discretion by the officials. But it is equally true that absolute discretion is ruthless master. It is more destructive of freedom than any of man’s invention! . It could be inferred that the use of discretionary power of the administrative authorities is very important for the fulfillment of their functions but the exercise of this discretionary power should not be unguided and uncontrolled, It has to be limited by certain methods so that they do not become unguided and in turn violate the actions of the administrative authority. Such power can be controlled either at the stage of conferment of Administrative power or at the stage of exercise of such power. * Justice Douglas in U.S. v Wunderlich, 342 US 98,101 (1951) 4ADMINISTRATIVE DISCRETION DEFINED ‘The word Discretion in the layman term can be defined as choosing from amongst the various available alternatives without reference to any predetermined criterion, no matter how fanciful that choice may be. For e.g. a person writing his Will has such discretion to dispose of his property in any manner, no matter how fanciful and arbitrary it is. But when the term discretion is preceded or qualified by the word Administration it has an entirely different meaning. In this sense the word discretion means the Choosing from available options is on the basis of rules of reasons and justice and not on the personal whims and fancies of an individual, Such exercise is not to be arbitrary, vague and fanciful, but legal and regular? Sir Edward Coke defined discretion as the knowledge to distinguish between falsity and truth, or right and wrong, without resorting to any personal reasons.* ‘The West Encyclopedia of American Law has defined Administrative Discretion as “The exercise of professional expertise and judgment, as opposed to strict adherence to regulations or statutes, in making a decision or performing official acts or duties. It is something informal and therefore unprotected by safeguards inherent in formal procedures. It is a freedom to make a choice among potential course of action*” Prof Julius Grey in his book Discretion in Administrative Law gas defined it as “ it is a power to make a decision that cannot be determined to be right or wrong in any objective way. Lord Diplock® in Secretary of State for Education & Science y. Tameride Metroborough Couneil® has defined it as “the very concept of Administrative Discretion involves a right to choose between more that one possible courses of action upon which there is a room for reasonable people to hold differing opinion as to what may be preferred.” Justice Coke as defined it as “ Discretion is a science or understanding to discern between falsity and truth, 2 Sharp v Wakefield, 1891 AC 173 2 Rooke's ease (1598) 5 Co Rep 996 * West's Encyclopedia of American Law, available a, http /Avww enotes com/wests-law- cencyclopedia/administrative-discretion ® Sir Edward Coke (1 February 1552 ~ 3 September 1634), was a seventeenth-century English jurist and Member of Parliament whose writings on the common law were the definitive egal texts for nearly 150 years ©(1976] 3 AUER 665between right and wrong, between substance and shadow, between equity and colourable classes and pretence not to do according to their wills and personal affections.”? In the case of Susannah Sharp y. 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.” NEED OF ADMINISTRATIVE DISCRETION Administrative discretion is inevitable because it is done to seek fulfillment of certain purposes. Broadly the functions can be classified as follows:~ > At the time of laying down a law the legislators leave certain gaps and ambiguities in the law. These gaps and ambiguities are to be filled by the exercise of administrative authorities on case to case basis. Determination of rights and interest of people that depends upon the exercise of discretion of the authorities. ‘The policy objectives are sought to be widened by the use of administrative discretion. Discretion is used to deal with unforeseen situation. It is used to handle matters which require technical expertise as the officers of a technical department are more quipped to handle such matters as compared to the legislatures, It provides flexibility to cater needs of different situations. It provides a time saving mechanism. > Since it grants certain power to authorities it also fix up their responsibilities as they are accountable for their action, Expressions such as ‘if he is of the opinion’, or “if he is satisfied’, or “if he has reasonable grounds to believe’, vest power in the authority to act on forming an opinion or being satisfied that such action is necessary. It was such discretionary power that became an object ” MASSEY LP. ADMINISTRATIVE LAW, 65(2008)of Dicey’s Criticism in his monumental treatise on constitutional law’ . Dicey thought that Discretion was the source of inequality and discrimination and of arbitrary action. It was therefore negation of rule of law. Rule of Law according to Dicey, warranted absolute predictability of administrative action’ MERITS OF ADMINISTRATIVE DISCRETION Power implies discretion. If no discretion is vested in the power, it becomes duty. Administration in a welfare state cannot run smoothly without discretion, Discretion is necessary element in exercise of powers. But norms and standards are also required to be established, In absence of norms administrative discretion becomes absolute, Power compts and absolute power corrupts absolutely. Discretion is principal source of creativeness in govemment and law. Wide discretion must be in all administrative activities but at the same time it is necessary to confine structure and check discretion to uphold the principle of rule of Jaw in administration lest cases of unjustice go unheeded and unpunished DEMERITS OF ADMINISTRATIVE DISCRETION If absolute discretion is vested in the administrative authorities then it will lead to he administrative despotism. Aristotle has rightly said that power corrupts and absolute power corrupts absolutely. Although discretion is necessary for running the administration but absolute discretion cannot be permitted. If discretion is without norms then there will be authoritarian rule and rule of will disappear from the country. Policies of the country cannot carried out without discretion. If the discretion is absolute democratic norms of the emment of the people, by the people and for the people will not be realised. * DICEY, AV, LAW OF THE CONSTITUTION (MACMILLAN) ° MASSEY LP. ADMINISTRATIVE LAW, 65-66 (2008) 7CONCLUSIO! Administrative Discretion forms an essential part of the rule making process of the administrative authorities. It gives them the power to make rules and regulations that the legislature fails to do for a number of reasons as discussed earlier in the paper. Administrative Discretion in affect is the pillar on which the working of the administrative authorities rests, without it the authorities would be like a bow without an arrow or gun without any gunpowder. Administrative Discretion as a concept is like double edged sword. On one hand the importance of administrative power is well understood and in no situation the administrative discretion can be done away with, provided it is not arbitrary and on the other hand this discretionary power brings in a danger of the authorities exercising such power being unreasonable and arbitrary and acting in a way detrimental to the interest of the people. It even brings in the danger of negation of Rule of Law, ‘The basic premise of the validity of discretionary power is that it should be exercised on reasonable grounds and should be backed by justification. Any power which is exercised on the whims and fancies of the authority exercising it, has a danger of being unguided, uncontrolled and against the rights of the citizens. Therefore any discretionary power which looks to be unreasonable and unguided should be checked at the stage of conferment itself ‘This is done with the help of Fundamental Rights under Article 14 and 19 of the Constitution. Any rule or statute conferring discretionary power to the authorities, which is violative of Fundamental Rights, is void. Article 14 and 19 acts as regulators of the discretionary power at the stage of conferment and any power going against the requirements laid down by these Article is declared to be unlawful, arbitrary and void.BIBLIOGRAHY Upadhyaya, Dr. J..R., Administrative Law, Central Law Agency, Allahabad, 7th Ed, 2009. Jain, M.P. & Jain, S.N.; (2007) Principles of Administrative Law, 6th Ed., Vol. I, Wadhwa Nagpur Article: * Bhatia, K. L. (1989). [Review of PRINCIPLES OF ADMINISTRATIVE LAW, (4th ed.), by M. P. Jain & S.N. Jain]. Journal of the Indian Law Institute, 31(3), 418-425. ://www,jstor.org/stable/4395125 ‘+ M. Cooper, Robert (1994), Administrative Justice and the Role of Discretion. The Yale Law Journal, Vol. 47, No. 4 (Feb., 1938), pp. 577-602 (26 pages) ttns://wwrw.istor.ore/stable/791857_ Website: * Administrative Discretion: Meaning and Grounds of Control https://lawbhoomi.com/grounds-of-control-on-administrative-discretion/ (Last visited ‘on 1* June 2022) ‘© Abuse of administrative discretion http://www legalservicesindia,com/article/756/A buse-of-Administrative-Discretion.html (Last visited on 3" June 2022)