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Administrative Powers And Discretionary Powers

It has already been emphasized in the previous pages 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 main tasks of the administrative organ are no longer merely police or political; it performs vast regulatory and managerial functions. Formerly the various powers of the administration were broadly classified as legislative, “quasi- judicial” and administrative. No scheme of classification of powers is really satisfactory.

1. Administrative Powers:
Under the legislative power, the administration seeks to lay down a general rule of conduct or policy to be followed in the generality of cases. Powers of a legislative nature have already been studied earlier under the heading of “delegated legislation”. For example, many statutes enable the government to grant exemption from the operation of the concerned statute. If exemption is granted to a specified individual, the order may be regarded as administrative, but if exemption is granted to a class, then the order may, be regarded as legislative in nature. Before RIDGE VS BALDWIN, 1964 AC 40, the judicial approach was first to characterize a function as quasi-judicial or administrative, and then to apply rules of natural justice to the former. Since ridge, as seen in a previous chapter, this judicial approach has undergone a sea-change. Now it is not necessary to call a function as quasi-judicial first and apply natural justice then. The term quasi-judicial is falling in disuse. The first aspect which needs to be emphasized is that the term “administrative” is being used here to denote those functions of the administration where fairness or natural justice is not applicable. Such a function is discharged by the administration without giving an opportunity to the concerned party to have his say against a proposed action. For example, an administrative order cannot be invalidated on the ground of absence of reasons. Thus, a government order referring a Labour dispute for adjudication to a labour court need not be a speaking order. Western India watch co. vs Its workers, the state government first refused, but after sometime agreed, to refer an industrial dispute to a labour tribunal. The Supreme Court ruled that the relevant statutory provision, viz., sec. 10(1) of the Industrial Disputes Act, 1947 confers only an administrative function on the government, presumably, because the government does not go into the merits of the dispute but only refers it for adjudication. Therefore, it could not be held that once the government refuses to refer a dispute it cannot reconsider the matter and change its mind. For determining whether a power is an administrative power or a quasi-judicial power, regard must be had to:
(1) the nature of the power conferred;
(2) the person or persons on whom it is conferred;
(3) the framework of the law conferring that power;
(4) the consequences ensuing from the exercise of that power;
(5) the manner in which that power is expected to be exercised.
Broadly speaking, administrative powers of the administration are: evolving and implementing policies; execution of laws; applying vague standards lay down in statutes or delegated legislation from case to case.

2. Formulation And Execution of Policy:
Formulation of policy and its implementation is an important function of the executive in India, and this task of the executive is facilitated by the parliamentary system of government which operates both at the centre and the states. An essential characteristic of such a system is the close collaboration between the executive and the legislative organs because the executive depends for its existence on the majority support in the legislature. The principle has been enshrined in the constitution of India in the proposition that the council of ministers shall be collectively responsible to the lower house of the legislature. The executive organ can, therefore, count on the automatic support of the legislature in its policy making and administrative efforts. An important point to note with respect to the functioning of the administrative organ in India is that it does not always need a statutory power to act and execute a policy.

Naraindas  vs   State   of Madhya Pradesh AIR 1974 SC 1232. The court establishes the proposition that the executive can take administrative action without a specific statutory sanction over the entire area filling within legislative competence of the concerned legislature, if it does not infringe a legal right of any person. A government can, thus, engage in a trading activity, enter into a treaty with foreign countries, make appointments, make promotions to higher administrative posts, fix seniority, establish fair price shops, without there being specific legislation for the purpose. An executive   action which, however, operates to prejudicially affect the legal  rights of any person.

3. Conferment of Administrative Powers By Law:
A few sample provisions conferring powers of an administrative Nature may be noted here for illustrative purposes. Let us first take a provisions conferring discipline over the government servants. The government has power to dismiss, remove or reduce in rank a government servant but such a power is exercisable after giving a hearing into the concerned person. Rule 16(3) of the All India Services (death-cum-retirement) Rules, 1958 empowers the Central government to compulsorily retire a government servant who has put in certain years of service after giving him three months’ notice.  This provision has been held to confer a very wide discretion on the government to retire a government servant without giving him a hearing and so it is an administrative power.

The Requisitioning and Acquisition of Immovable Property Act, 1952 authorises the Central government to requisition private immovable property for “purposes of the union” and this term is not defined in the act and so the central government has a large discretionary power to requisition private property for any purpose deemed necessary by it.

Sec. 144, Cr. P.C., provides a Machinery for issue of orders in urgent cases of nuisance or apprehended danger. Ordinarily an order under the section is not passed ex parte if there is not enough time to serve a notice on the concerned party. The maximum time limit for such an order is two months. The order may be rescinded at any time. If a person request for a rescission of the order, he must be heard by the magistrate and reasons are to be recorded by him for rejecting the application for rescission. An order under the section is open to revision by the high court.

4. Discretionary Powers
Functions dischargeable by the administration may either by ministerial or discretionary.  A ministerial function is one where the law prescribes the duty to be performed by the concerned 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 simple and definite duty in respect of which it has no choice. An example of a non-discretionary function is furnished by sec. 35 of the Income Tax Act, 1922. The provision stated that the income tax officer could rectify any mistake apparent from the record. The Supreme Court ruled in Hirday Narain vs Income tax officer AIR 1971 SC 33 that this provision did not give any discretion to the I.T.O. to exercise or not to exercise the power to rectify. It was implicit in the nature of the power that would be exercised by the I.T.O. when a mistake apparent from the record was brought to the notice by the concerned person. Even if the words used in the statute are prima facie enabling the courts will be readily infer a duty to exercise power which is invested in aid of enforcement of a right of a citizen. In Kavita VS State of Maharashtra  AIR 1981 SC 1641 , 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, through the government had the full liberty to revoke the order of detention at the stage. A minor discretionary element, however, will not make the function non – ministerial.

The need for “discretion” arises because of the necessity to individualize the exercise of power by the administration has to apply a vague or indefinite statutory provisions from case to case.

There are at least four good reasons for conferring discretion on administrative authorities:
 (a) The present day problems which the administration to called upon to deal with are 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.

The judicial control has two Facets . one, to compel the legislature to desist  from conferring to 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. This may involve some substantive and procedural safeguards in the exercise of powers. The court may imply some substantive limits on the power. They may imply some procedural safeguards, i.e. an adjudicatory body being required to follow natural justice. In other cases, the relevant law may lay down some procedural norms. Two, there is need to have some post- decisional review mechanism to ensure that administrative authorities discharge their functions according to law and within legal limits express or implied. To some extent, this important role is discharged by courts. The courts control  the exercise of discretion by the administration and for this purpose have evolved several norms.

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