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AMITY LAW SCHOOL LUCKNOW

ADMINISTRATIVE LAW

Administrative Discretion

SUBMITTED TO: PANCH RISHI DEV SHARMA

SUBMITTED BY: MEDHA BHATT B.A; LL.B (H); IV(A) A8111111054

ACKNOWLEDGEMENT

The assignment work bears the imprint of many people, and I express my gratitude to all those who have helped me and rendered their help in all the possible ways in a completion of my assignment. No work can be successful without the guidance and blessing of elders and this work is no exception. It is a matter of immense pleasure to express my gratitude to my faculty Honble Mr. Panch Rishi Dev Sharma for her guidance and excellent insights which gave direction and focus to this paper. I thank her for lending her precious time in making this assignment an authentic piece of work. I also owe sincere gratitude to the staff at library for always helping in the process of finding material and other sources for research. I am very grateful to my seniors and all the individuals involved in the subgroup for their contributions and assistance in compiling this assignment and the recommendations that go with it: they are the outcome of an open, interactive and creative cooperation. I also thank social networking site for searching the required information in precise and as per needed. How I can forget to give credit and my satisfaction to my friends. My sense of gratitude is due to AMITY LAW SCHOOL, LUCKNOW. At last, I express my heartfelt gratitude to the God Almighty, without whose blessing and motivation, the completion of this assignment would have been impossible. Thanks to all.......

Medha Bhatt

TABLE OF CONTENTS

Introduction..........................................................................................4 Meaning......................................................................................................5 Need and Justification.................................................................................6 Merits...............................................................................................7-8 Limits of Administrative Discretion......................................................9-11 Conclusion....................................................................................12

INTRODUCTION

Discretion is a science or understanding to discern between falsity and truth between right and wrong, between shadows and substance, between equity and colourable glosses and pretences, and not to do according to their wills and private affections. -Justice Coke

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 rule of reason and justice, not according to private opinion...according to law not humour. 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....1 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. The problem of administrative discretion is complex. It is true that in any intensive form of government, the government cannot function without the exercise of some discretion by the officials. It is necessary not only for the individualization of the administrative power but also because it is humanly impossible to lay down a rule for every conceivable eventually in the complex art of modern government. But it is equally true that absolute discretion is a ruthless master. It is more destructive of freedom than any of mans other inventions. Therefore, there has been a constant conflict between the claims of the administration to an absolute discretion and the claims of subjects to a reasonable exercise of it. Discretionary power by itself is not pure evil but gives much room for misuse. Therefore, remedy lies in tightening the procedure and not in abolishing the power itself.

Susannah Sharp v. Wakefield, 1891 AC 173,179: (1886 - 1890) All ER Rep 651 (HL)

MEANING:
Administrative law is dominated by the term discretion. Administrative agencies make many kinds of decisions involving a wide variety of issues; the resolution of a number of these issues emerges through the exercise of discretion. The term discretion, then, often defines the function of the agency and describes the role of the reviewing court. It is therefore essential that courts understand administrative discretion both to evaluate the agency's performance and to understand the courts' own function.2Administrative discretion is not a expression provided by statutes, thus to understand it we separate the term, where Administration in public law means, the practical management and direction of executive department and its agencies. Whereas Discretion in this sense means choosing from amongst the various available alternatives but with reference to the rule of reason and justice and not according to personal whims. Discretionary powers conferred on the administration are of different type. They may range from simple ministerial function like maintenance of birth and death register to powers which seriously affect the rights of an individual, e.g. acquisition of property, regulation of trade, industry or business, investigation, seizer, confiscation and destruction of property, detention of a person on subjective satisfaction of an executive authority and the like. In short Administrative Discretion is a powers or authorities provided to the executive by which freedom given to maintain system government, society, rights and solely to satisfy people aim to live alive a freedom. Even administration could not bind in formal but, in visible handcuffs they are to be given discretion for their best service to serve citizens.

2 C. KOCH, ADMISTRATIVE LAW AND PRACTICE 9.7, at 106-07 (1985).

NEEDS AND JUSTIFICATION

In todays complex art of governance, discretion is unavoidable evil. Administrative authority has to use discretion conferred upon them by the Legislature in many ways. For e.g. they have to reside whether the activities of a person are like likely to be prejudicial to security of State, whether permission should be given to do an act or a license be given to conduct an activity or exemption be granted. Whether an action is required depends upon the happening of certain events or arising of certain situations that cannot be anticipated. Some of the actions depends on the personal assessment of the situation by the administrative authority which may be true in his perspective but which may sometime cross the limit conferred upon him and which may seen arbitrary to other. This administration discretion has not imposed for a individual to be hold up with but for the satisfaction of the society, where a complex art of modern government exist, with which to accommodate is difficult and even impossible to continue in todays prevailing condition. For a welfare state it has become more stressful for government to exercise their discretion to large extent and because of that reason it has become the duty of administrators to satisfy subjectively with laying down the statutory guidelines or imposing condition. Thus the need for judicial correctness of unreasonable exercise of administrative discretion cannot be overemphasized.

MERITS

The Doctrine of Administrative Discretion implies power to make a choice between an alternative course of action or inaction. E.g. A civil servant has discretion whenever the effective stoppage of authority gives him chance to opt for choice among possible course of action or inaction. Thus Administrative Discretion is not considered as pure or absolute evil by it creates room for it. The Term (discretion) itself implies vigilance, care, caution and circumspection. When the legislation confers discretion on a court of law or on an administrative authority, it also imposes responsibility that such discretion is exercised honestly, properly and reasonably. Further looking this aspect, few more merits and uses of Administrative Discretion could be discovered as such a) Speedy enforcement of the object, of giving them such power

It would be great help to the system of government and is at administrative goal, if the person whom the power or discretion of power is given with a object, which is achieved then this indirect evil be considered as an tool to success. b) One of the celebrated Justice B. N. Bhagwati has narrated his views of discretion in case of R. D. Shetty v. International Airport Authority of India, as obiter dicta that, exercise and discretion is an inseparable part of sound administration and, therefore, the State which is itself a creation of Constitution, cannot shed its limitation at any sphere of state activity. c) The decision making must be permitted to enjoy as much freedom as possible to exercise his discretionary power conferred on him by the legislature, with which executive could excel and could be beneficiary for people on the subject matter related to development of State. (Infrastructure, Education, Economy, Communication, Technology, Peace Making, Planning and administration, etc.) d) Effective mode for speedy trial as we look in current scenario the pendency of cases in courts is very high and even one of its reason falls executive liable as they play a vital role in proceedings of a trial. Thus, if discretion is given to them then there are possibilities of easiness for executives administration.

e)

Reasonable

and

Reason

makes

more

effective

and

constructive

If the administrators are given discretionary power which oath to be reasonable which does not exceed their post or suppresses others and does not affect the independency of organs and suppression of power is maintained. The other side, powers authorized must be with reason and also its enforcement to be reasoned with infringes the right of other and creates a climate of beaurocracy. If these two sides are secured then administrative discretion would be as Kohinoor in Queens Crown.

LIMITATION OF ADMINISTRATIVE DISCRETION:

It is more destructive of freedom than any of mans other invention. -William .O. Douglas Discretionary powers when submitted to any administrative authority, it must be handled lawfully. But as Morkose says, When the mode of exercising a valid power is improper or unreasonable, there is an abuse of the power. E.g.:- When power is conferred to a officer for some purpose and which is been exercise by that officer on its own malafied discretion for improper purpose or act in bad faith is considered as abuse of the power. Administrative field is a vast area of work which is necessarily be hold by an office and to be authorized by discretionary power for making the system running, which does not means that it to be kept on a thrash hold of total freedom. A set of control to be imposed upon it whether it might be Judiciary or Legislative. The wider administrative discretion delegated to administrator the more chance of occurrence of its limitations. As it is rightly said, every power tends to corrupt and absolute power tends to corrupt absolutely. Limitations or Abuses of discretion may be inferred in various circumstances: Vacuum in Jurisdiction Exercising power allowed by or delegated to use it would in a given manner or condition, which is to be followed by the authorities in ambit of law. If discretion in exercising this power has no limit, than what so ever done to society or with society would be void

For instance even Supreme Court ruled that the University and other like institutes had no power to compel a minority institute to adopt a particular medium of instruction in education. Ultra Vires Act An administrative authority has been declared his discretionary power and subject matter that how to apply, where to apply, at what level to apply. But if this authority exceeds what has been provided in the statutes or provisions enacted for their discretion in sense of the delegating power. It is the duty of the court to find out whether this authority is working under a statute and the limit of its power that to be
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exercised. For instance, if the relevant regulation and powers the management to dismiss a teacher, the power cannot be exercised to dismiss the principle. Mala fide Mindset Administrative authority must not be exercising their power against the law provided or exceeds the reasonableness of its substance. Further it must be good faith, in the benefit of people and lawful. Power exercise is bona fide that it is fine, but if exceed it is considered bad. A power may be exercised maliciously, out of personal animosity, ill-will or vengeance or fraudulently with intent to achieve an object foreign to the statute. This malice is classified in two type 1. Malice in fact and 2. Malice in law. Further the burden of proof will be falling on the person who alleges and the burden is very heavy. Even benefit of presumption is in favour of administration is a requisite. But it is the duty of court to consider those allegations; material placed on record against the administration, the reason is very simple. Principal of natural justice require that no person should be condemned unheard. Now question may arise whether this control on Administrative Discretion, can be applied on pure legislative or quasi-legislative act? The decision of the Supreme Court is not uniform on that point. It depends upon the malice done in effect of the law or fact. Natural Justice and its Avoidance By now, it is well-settled law that even if the exercise of power is purely administrative in nature if it adversely any person, the principals of natural justice must be observed and the person concerned must be heard. Violation of the principle of natural justice makes the exercise of power ultra virus and void. Arbitrary Action

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If the administrative discretion is not profound or under said principle or rule or action complain of is arbitrary, discriminatory, irrationally, unreasonable or perverse, it can be set aside in exercise of power of judicial review. The absence of arbitrary power is the first essential of rule of law, discretion, when conferred on executive authorities, must be confined within clearly defined limits. If a decision is taken without any principle or provision of rule, it cannot be sustain. Collateral Purpose : Improper Object Here administrative has a purpose which collateral to improper object. That mean if the purpose by which it is done is malice and also it is bona fide than the object must not be ill-will otherwise it may be set aside, if not to be honest. Colourable Legislation Colourable Legislation or fraud on constitution means that the Legislature is really not competent to enact such law under the scheme of the constitution. As explained by Gajendragadhkar J., the doctrine of Colourable Legislation really postulates that Legislation attempts to do indirectly what it cannot do directly. In other words, though the letter of the law is within the limits of the power of the Legislation in substance and in reality, it has transferred those powers. Unreasonableness One of the other destructive tools for abuse of administrative discretion can be considered as unreasonableness of the administrative authority to administer discretion. The power conferred by this authority must be reasoned and if not than that act to be considered ultra virus or void. Further it is to be understand; is about the term unreasonable, which is ambiguous and may be taken in with different things. Reasonableness differs according to the individual to individual, facts to facts, condition to condition, etc. Unreasonableness may include the malice and evil, which does not, covers the reasonableness of a normal being. Thus, the expression unreasonableness covers a multitude of sins. Even the onus of proof, that whether act done by Administration was reasonable, is to be again the court by the petitioner. This means, the burden of proof remains with the person who brings in the point or challenges such decision as unreasonable.
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Two reasonable person can reasonably come to opposite conclusion on the same set of fact without forfeiting their title to regarded as reasonable.

CONCLUSION:
In every field, every sphere, each substance has to be in a reasonable format, by which it can serve and without which it can extinct. Wide discretion must be in all administrative activity but it should be discretion define in term which can be measured by legal standards lest cases of manifest injustice go unheeded and unpunished. Thus, there must be control on the discretionary power of administration by which law and justice could be up hold as we need Government Laws and not Government of Men. This would even be in public interest to; it is not to say that Administrative Discretion must be restrained by any of the organ of Government but a check and balance system must be organized, though this system is found by American courts. Thus, it is the need for Indian courts to develop as they lack activism of American courts. In India as like USA there is no Administrative Procedure Act providing for judicial review on the exercise of Administrative discretion. With the rapid growth of administrative law and the need and necessity to control possible abuse of discretionary power by various administrative authorities, certain principles have been evolved by courts. If an action taken by any authority is contrary to law, improper, unreasonable, or irrational, a court of law can interfere with such action by exercising power of Judicial Review. Thus, the orthodox approach of Indian courts that they have no power to interfere with the order passed by the administrative authority in exercise of discretionary power , must be kept aside and new way of dealing this limitation of Administrative Discretionary to be concentrated for growth and development of a country.

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