Administrative Discretion
Discretion has defined as the freedom or authority to make judgments and choose amongst the various available alternatives without reference to any predetermined criterion, no matter how fanciful that choice may be. Administrative discretion means to choose from among alternatives with justification and not according to personal whims.[1]
The legislature and the executive two pillars set up by the Constitution. The fact is that Parliament can not legislate on all aspects of a certain matter and simply vest authority in the executive to implement the same. In certain instances, it is required to leave certain gaps in law and allow the sole discretion of the executive authorities on a case-to-case basis. Administrative discretion is problematic but indeed the government can not function without the exercise of some discretion by officials. It is important not only for the individualization of the administrative power but it is impossible to rule for everybody. But it also trues that absolute discretion is a ruthless master. There has been a conflict between the claims of the administration to an absolute discretion and subject to a reasonable exercise of it.
Indian Approach for Administrative Discretion
India has formulated a parameter for the exercise of discretion, the concept of judicial behavior still halting, variegated, and lacks the activism of the American courts. Judicial control of administrative discretion is exercised at two stages:
- The administrative authority ceased to function the authority vested in it.
- The authorities exercised discretion incorrectly with mala side, improper purpose, and under the influence of another body.
Control at the stage of delegation discretion – the court exercises control over dictionary powers of the administration by adjudicating upon the constitutionality of the law under such powers are vested concerning the fundamental rights in the Indian Constitution. If the law confers indistinct and wide discretionary power on any administrative authority, it may declare ultra vires Article 14 and 19 and the other provisions of the constitution. In cases of delegated legislation, courts are satisfied with the statements and policy but not in the case of fundamental rights to states conferring administrative discretion. This is the main reason behind less administrative arbitrariness than administrative discretion lies from case to case.
Control at the stage of exercise of discretion – In India there is no Administrative Procedure Act providing for judicial review on the exercise of administrative discretion. Therefore, they developed various formulations to control the exercise of administrative discretion. These formulations may be converted into two groups.
- The authority has not exercised its discretion at all when it failed to exercise discretion “non-application of mind” – In this, the court exercises judicial control over administrative discretion if the authority has been abdicated its power or either jurisdictional nonexistent and wrongly determined. The authority which has discretion power can be compelled to exercise it, but it’s not necessary to exercise in the same manner.
- Abuse of discretion– the formulation has been developed by courts in India to control the exercise of discretion by the administrative authority. Improper exercise of discretion includes such things as mala fide, improper purpose, irrelevant or relevant considerations, no material, misdirection of law and fact, unreasonableness.
Mala fide
It means with bad intention, not in good faith. The term mala side used by courts is a broad term, in the case of Jai Chand v.State of West Bengal,[2] the Supreme Court observed that exercise the power of mala fide does not mean to imply any element on turpitude is attached to it as in the case of mala fide. In the procedure of decision-making, mala fide is allowed. Malice may be either a fact or the law. The case that motives behind an administrative action is personal animosity, spite, personal benefit to the authority itself or friends.
Pratap Singh v. State of Punjab[3]
The appellant, a surgeon in the employment of State Government, was granted leave preparatory to retirement, but it was revoked and he was suspended under disciplinary action was started against him on the charge that he had accepted Rs. 16 bribe from the patient before going on leave. The appellant alleged these charges and had been initiated at the instance of the chief minister to wreak the personal grudge against him because he had refused to yield to their illegal demands of his. The Supreme Court held that exercise of power to be mala fide.
G. Sadanadan v. State of Kerala[4]
The DSP (Civil Supplies Cell) passed a detention order against those kerosene dealers who will operate without a license and dealing in kerosene illegally. It was alleged that DSP was acting mala fide because his brother was a competitor in the same business. The DSP did not file a counter affidavit in court against his charges. The court quashed the action.
Improper Purpose
The statutes confer power for one purpose, and that is used for different purposes will not be regarded as a valid exercise of powers that will be quashed. In modern times, the cases have been increased because the conferment of broad discretion power has become a usual tendency.
R.L. Arora v. State of uttar Pradesh[5]
The Land Acquisition Act, 1894 allowed the state government to give consent to acquisitions property for industrial purposes if it is useful for the public. The government has assented to the acquisition of property by a textile factory. It was challenged because the government could not interpret the statute and exercised discretion on the same as well. The court held that the purpose of the statute was to allow the acquisition when the construction of a work after acquisition would be a benefit to the people. In this case, the benefit would arise after construction, when it’ll function. The order of the government was struck down because it violated the mandate of legislation.
Irrelevant or Relevant Consideration
A discretionary power must be exercised on relevant consideration, not on irrelevant consideration. It means power must be exercised into account consideration that is mentioned in the statute. If it is not mentioned in the statute then power is to be exercised on considerations relevant purpose that is conferred. If the authority has used power for irrelevant cases then it would be ultra vires and quashed.
Barium Chemicals Ltd. V. Company Law Board[6]
Under section 236 of the companies Act, the CLB can order an investigation against the company if the company is being conducted for defrauding the creditors or the persons involved in the management are guilty of fraud and other things or full information has not been given about the company. The investigation was ordered in the case on the ground that continuous losses owing to faulty planning and many directions had left the board. This order was challenged and the court held that this order state that these grounds were irrelevant and extraneous to the purpose that is mentioned in the statute.
No Material
All discretionary action must be based on sound material and facts. There should be the application of mind when discretion action has taken even the discretion vested in the authorities.
Misdirection of Law and Fact
Sometimes authorities may act beyond the scope of the powers given by the law, and it may make such mistakes and it came as a misinterpretation of the law and facts that go beyond the scope of the power vested in them. If such a mistake concerned the better place by law is made, it would vitiate the exercise of discretion.
Unreasonableness
The statute may require the authority to act reasonably. The courts have stated that the authority should consider the question fairly and reasonably before taking action. The term unreasonableness does not furnish independent grounds of judicial control powers apart from the grounds already mentioned. The term may include those cases where the authority has acted according to law but in the wrong manner and either according to law and right manner but on wrong grounds.
Proportionality
Judicial control has been formulated to check the exercise of administrative discretion. This ensures that unfettered power is not given to authority that allows arbitrary decision-making. The rule of proportionality means to ensure there is nexus between the aim that has to be attained and the means undertaken to do so. An application of this rule is in departmental hearings where the punishment was given to employees is grossly out of proportion considering the wrong committed.
Ranjit Thakur v. Union of India[7]
In this case, an army official was court-martialled in response to a minor indiscretion committed by him. He challenges the order in which the Supreme Court held that rule of proportionality demanded that punishment should be given nexus with the act committed and is proportional to the same.
Conclusion
The activities of abusive administrative control are ever-increasing because more and more discretion is being given to administrative authorities and without any interference from other bodies. The courts are interfering in abusive administrative discretion but it still respects the process of decision-making that authorities have. The only check courts imposing is that manner of making decisions should be fair.
[1] William T. Meleod, The New Collins Concise Dictionary of the English Language,319 (1985).
[2] 1967 AIR SC 483.
[3] 1964 AIR SC 72.
[4] 1966 SC.
[5] 1964 AIR SC 1230.
[6] 1967 AIR SC 295.
[7] 1987 AIR SC 2386.
BIBLIOGRAPHY
- William Alexander Robson, Administrative Law, https://www.britannica.com.
- Abuse of Administrative Discretion, http://www.legalservices.com.
- http://www.manupatrafast.com.
- https://www.scconline.com.
- https://www.law.cornell.edu.
- 8 Student Advoc. 170 (1996) Control of Abuse Administrative Discretion:judicial Trends, http://heinonline.org.
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This article is written by Prachi Yadav, a 2nd year student from Mody University of Science and Technology, Lakshmangarh, Rajasthan.