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Administrative Discretion

The concept of Administrative Discretion has assumed great importance with the rapid growth of Administrative Law. The emergence of welfare state has led the government to perform multitudinous functions to address myriad socio-economic grievances of the people.

Wade, in his famous work[1] says, "Traditionally, delegating legislative power to the executive was looked down upon as a necessary evil". Gradually, states transitioned from being a police state to a welfare state and gave up the theory of "laissez faire" thereby becoming more open to the idea of delegated legislation.

In a modern democracy, it is practically impossible to legislate directly on every matter relating to public importance and implement policies without the backing of a well-oiled administrative machinery. The exercise of administrative discretion is of paramount importance to facilitate good governance based on the principles of natural justice. In other words, it can be said that administrative action is guided by administrative discretion.

In 1941, Sir Cecil Carr in his lectures on bureaucracy pointed out that "any statute book will be incomplete and misleading if not read along with the delegated legislation".[2] Administrative action adds flesh and blood to the policy framework created by the legislature. The infringement of citizens rights looms large in the presence of arbitrariness in administrative action.

Lord Denning has rightly said:
"Properly exercised, the new powers of the executive lead to the welfare state; but abused they lead to the totalitarian state".[3] Therefore, it can be inferred that administrative discretion cannot be unfettered and that it's purpose should be to complement the law-making function of the legislature and not to overpower it.

Administrative Law aims to establish a proper conduct for the administrative authorities to limit their discretionary powers from turning arbitrary. The discretionary power bestowed upon the executive by law is open to judicial review so that it works within the permissible limits. Various countries have interpreted the scope of judicial review in administrative action from time to time. which has led to remarkable advances in the field of administration. As a result, the scope of administrative discretion has enlarged over time.

Meaning of Administrative Discretion

In layman's language, discretion means an ability to make informed choices. It is an inherent quality to discern right from wrong and arrive at decisions based on reason and not according to personal whims and fancies.

In Rooke's Case, Lord Edward Coke laid down the definition of discretion as, "a science or undertaking to discern between falsity and truth, between right and wrong, between shadows and substance, between equity and colourable glosses and pretences, not according to the will and private affections".[4]

Administrative discretion implies the authority vested in the executive i.e. the public officials to undertake administrative action based on their judgment. It is noteworthy here that administrative discretion can include the power to act or not to act. It encapsulates various administrative activities like regulation of private enterprise, production, manufacture and distribution of essential commodities etc for securing social security of the people. Other ministerial functions include investigation, detention, seizure, confiscation, and destruction ot property etc. The ambit of administrative function is wide and undefined.

The Supreme Court in Ram Jawaya Kapoor case[5] had referred to the administrative function as 'residuary functions' due to the quantum of functions undertaken by the executive other than the law-making functions and the judicial functions. A statute uses the word 'may' and phrases such as if he is satisfied or if he is of the opinion or if he reason to believe to confer discretionary power to the executive.

In State of Punjab v. Khan Chand, the Supreme Court was of the view that:
Considering the complex nature or problems which have to be faced by a modern state, it is but inevitable that the matter of details should be left to the authorities acting under an enactment. Discretion has, therefore, to be given to the authorities concerned for the exercise of the powers vested in them under an enactment.[6]

Administrative discretion is the principal source of creativeness in government and in law. Wide discretion must be in all administrative activity.[7] However, it should not be unfettered so as to turn arbitrary and affect the principles of the rule of law.

History of Administrative Discretion

The concept of Administrative Discretion dates back to the time when the well-known Greek philosopher Socrates laid the foundation for philosophical ethics. He devised a certain criterion that could determine the course of action to be taken in any immediate situation. In laying down such morals, he enumerated the concept ot Administrative Discretion.

Andrew Jackson and the US Postal Service
"Nobody knows what he will do when he does come...My opinion is, that when he comes he will bring a breeze with him".[8]

These were the words of Daniel Webster, written by him on the eve of Jackson's inauguration. He described him as not just a man or an administration but an era. Leonard White has called the Jacksonian era as "years of almost uninterrupted excitement, tension, crisis and apprehension.[9] When Jackson presided over the office in 1829, America was undergoing rapid social, economic, technological and political changes. Considering the need for increase in administrative activities, he bureaucratized the administration. He was quite suspicious of his political opponents which is why he started making appointments of his close friends in the administration.

He came up with a program to remove people from the federal job posts and replace them with loyal employees. This was known as the "spoils system" under which the presidential administrators had the authority to hire or fire federal workers. It was also known as the patronage system and it had overwhelming backing of the Jackson supporters as they believed it to be necessary for reforming the federal government. Jackson received scathing attack from his opponents for his policy. Subsequently, he brought in the Patent Reform Act of 1836 which led to the creation of new offices and adjudicatory administrative boards. This was widely seen as a new era in administrative discretion.

Various presidents succeeding Jackson followed his example of appointing members to the administration. On many accounts, administrative officials were seen abusing their powers. Throughout the 19th century, there were concerted attempts to exercise control over administrative discretion but to no avail. Substantial changes took place in the 20th century and the concept of administrative discretion found a new direction.

Franklin Roosevelt's New Deal brought much needed respite to the public as it introduced and implemented various welfare schemes at a time of crisis. This led to the creation of innumerable agencies and boards which were of great help to the public. The New Deal stressed the importance of administrative discretion and answered an important question as to who would be governing the future welfare programs.

Another remarkable development was the Administrative Procedure Act, 1946 which was created to govern the procedure of the administrative agencies. It provided opportunities to the public to comment on proposed rule making. It provided for the issuance of licenses, policy statements, permits etc. It also lays down the standards for judicial review if a person has been aggrieved by an agency action.

Need of Administrative Discretion

The doctrine of laissez faire was prevalent when Dicey formulated the rule of law. The role of the then police state was limited confined to the maintenance of law and order. With the sharp decline of the doctrine of laissez faire over the years, more and more countries adopted the concept ot a welfare state and an urgent need was felt for economic development and social change. Today, whether in socialistic countries or in capitalist societies, it is impossible to find a government that can function without conferring discretionary power to the executive.

The Supreme Court has observed in the case of Paschim Banga Khet Mazdoor Samity v. State of West Bengal, "The Constitution envisages the establishment of a welfare state at the federal level as well as the state level. In a welfare state the primary duty of the government is to secure the welfare of the people".[10]

Whether an action is required on ground can only be determined by the officials posted in grassroot levels. Administrative discretion comes to the rescue in problems where direct legislation is not possible. Optimum utilisation of resources is a pre-requisite to create a welfare state. The modern state performs multitude of tasks like alleviating poverty and unemployment, formulating policies for nutrition, health and family welfare.

It also seeks to regulate enterprise and the supply of goods and services. The implementation of the aforementioned welfare schemes is possible only through proper administration. Amid social and economic development, various offences also take place like economic smuggling, adulteration, tax evasion etc that need to he curbed.

Prof Wade in his work has stated:
If the state is to care for its citizens from the cradle to the grave, to protect their environment, to educate them at all stages, to provide them with employment, training, houses, medical services, pensions and in the last resort food, clothing and shelter, it needs a huge administrative apparatus. Relatively little can be done by merely passing Acts of Parliament and leaving it to the courts to enforce them. There are far too many problems of detail and far too many matters which cannot be decided in advance. No one may erect a building without planning permission, but no system of general rules can prescribe for every case. There must be discretionary power".[11]

Control of Administrative Discretion

"Power tends to corrupt and absolute power corrupts absolutely". -Lord Acton

Granting discretionary power to the executive is as important as keeping it under check in a welfare state so that the power is not misused. In this rule of law proposition, Dicey was of the view that there should not be any discretionary power in the hands of the executive as personal discretion would result in arbitrariness and discrimination. Modern day scholars like Prof. Goodhart believe that reasonable limits must be imposed upon the discretionary power of the administrative officers instead of negating the idea of administrative discretion.

The judiciary has played a key role in imposing restrictions on administrative discretion and has from time to time directed the legislature to formulate necessary guidelines and rules to maintain the conduct of the administrative officers. The system of checks and balances is an essential feature of the Indian Constitution. Although the Indian Constitution doesn't specifically talk about the rigid separation of powers like the one in America, it is generally accepted that such a separation of powers does exist.[12]

Referring to administrative discretion, Wade says, "If discretionary power is to be tolerable it must be kept under two kinds of control: political control through Parliament and legal control through judiciary".[13]

Parliamentary Control

The Parliamentary control of administrative discretion has its own limitations because the legislature can hardly spare time to examine individual cases involving administrative discretion. Also, if the lawmakers take up the role of administrators of law, then the general public would be left with no remedy in cases of injustice.[14] In India, the Parliamentary control over administrative action is more of a constitutional obligation because the Executive is accountable to the Parliament.

In India and England, there exists a democratic Parliamentary form of government. The Parliament exercises effective control over the Executive. The natural remedy available to those aggrieved by any administrative action is to write to his/her Member of Parliament to seek redressal. The member may, in turn raise the issue informally with the Minister concerned or formally in the Lower House i.e. the Lok Sabha in the course of the debate.

Judicial Control

The entire law of judicial control of administrative discretion is based on the assumption that the real kernel of democracy lies in the courts which enjoy ultimate authority to control the discretionary powers bestowed on the executive.[15] The absence of judicial control over administrative action may lead the executive to commit excesses. Such a situation would be contrary to the ideals of democracy and the concept of rule of law.

It was held in the case or Kesavananda Bharti v. State of Kerala[16], that judicial control is not just an integral part of the Indian Constitution but also a part of the basic structure which cannot be whittled down even through an amendment of the Constitution. Judicial control of administrative action is based on the principle that all powers must be exercised within the ambit of law. Unless the administrative action is violative of the Constitution, or is arbitrary in nature, the courts do not interfere with administrative decisions. While determining the validity of any administrative action, the courts exercise supervisory as well as appellate jurisdiction.

Grounds of judicial review

Generally, judicial review of an administrative action can be exercised on the following grounds:
  1. Illegality
    This ground of judicial review is based on the principle that administrative authorities should exercise their powers within the ambit of law. If they lack jurisdiction, fail to exercise jurisdiction or exceed their jurisdiction, it shall be deemed that they have acted "illegally". Any action undertaken by them can be quashed by the court on the ground of illegality.
  2. Irrationality
    Irrationality as a ground of judicial review was developed by the court in the case of Associated Provincial Picture House Ltd. V. Wednesday Corpn.[17]. It came to be known as "Wednesday test". A decision of the administrative authority is considered irrational if:
    • It is without the authority of law.
    • It is based on no evidence.
    • It is based on irrelevant consideration.
    • It is outrageous in its defiance to logic.
  3. Procedural impropriety
    If any administrative action lacks "fair procedure", then it is one of the grounds for the quashing of the action. The need for fair procedure may arise in following ways:
    • As a constitutional mandate when fundamental rights are violated.
    • As a statutory mandate when any statutory requirement or procedure is not followed.
    • As an implied requirement when statute is silent about procedure.

  4. Proportionality
    Proportionality implies that the administrative action must not be more drastic than it ought to be. The saying that goes well with this doctrine is "canon should not be used to shoot a sparrow". Proportionality has to do with reasonableness of administrative action. The Doctrine of Proportionality is applied when:
    • An administrative action curtails fundamental rights.
    • A question relating to the quantum of punishment imposed is involved.
The mechanism of judicial control of administrative action falls into three categories:
  1. Special Leave Petition

    Article 136 of the Indian Constitution lays down that the Supreme Court may, as per its discretion grant special leave to appeal from any judgment, decree, order or sentence in any matter passed by any court or tribunal except those constituted under any law related to the Armed Forces.

    Since the Supreme Court is empowered with a plenary jurisdiction to hear appeals against decisions of Administrative Tribunals, it is considered to be an important mode of judicial review of administrative actions. It was held in the case of Durga Shanker Mehta v. Raghuraj Singh[18] that the court would entertain special leave only where the need of justice demands its interference. The court would interfere only after examining whether the decision is arbitrary in nature.

    In the case of Sanwat Singh v. State of Rajasthan[19], it was observed by the court that Article 136 bestows upon the Supreme Court wide discretionary powers to grant special leave to appeal. The court would usually grant special leave to appeal in exceptional cases in which grave injustice has been committed by disregarding the legal process or going against the principles of natural justice.
  2. Supervisory jurisdiction of High Court under Article 227

    The power of judicial review has been conferred on all High Courts under Article 227 of the Indian Constitution. It provides that every High Court shall have superintendence over all courts and tribunals under its jurisdiction. It was held in the case of Ram Roop v. Bishwa Nath thay this supervisory power is judicial as well as administrative in nature. The supervisory jurisdiction keeps the subordinate tribunals within limits.

    The principle grounds on which the supervisory power can be exercised are as follows:
    • Excess of jurisdiction.[20]
    • Failure to exercise jurisdiction.[21]
    • Violation of principles of natural justice.[22]
    • Error of law apparent on the face of record.
  3. Extraordinary and Ordinary Remedies.

    Administrative action is also controlled through the extraordinary and statutory ordinary remedies provided under the Constitution. Provisions for extraordinary remedies are enshrined under Articles 32 and 226 of the Constitution. The Supreme Court and High Courts can issue writs of Habeas Corpus, Certiorari, Mandamus, Prohibition, Quo-warranto to control administrative actions. The ordinary remedies are included under various statutes e.g., declaration, damages, injunction etc.


Administrative Discretion is an vital component in the field of Administrative Law that regulates day-to-day administrative actions. It revolves around the principle of rule of law. Administrative discretion has to be in sync with the principles of rule of law inorder to be constitutionally valid.

Administrative Discretion is not unfettered and is subjected to judicial review so that administrative actions do not turn arbitrary. Judiciary plays a vital role in examining administrative actions. The parameters of judicial control of administrative discretion are well-settled and are still evolving with various judicial pronouncements.

  1. Wade & Forsyth, Administrative Law (2009) 731
  2. Carr, Cecil Thomas. Concerning English Administrative Law, New York Chichester, West Sussex: Columbia University Press, 1941.
  3. Freedom under the Law (1949) 126.
  4. Rooke's Case, (1598) 5 Co Rep 996.
  5. AIR 1955 SC 549.
  6. (1974) 1 SCC 549.
  7. Courts and Administrative Process, (1949) 63 L.Q.R. 173.
  8. Letter from Daniel Webster to Ezekiel Webster (Jan. 17, 1829), in 17 The Writings And Speeches Of Daniel Webster 467 (Fletcher Webster Ed., 1903).
  9. Leonard D. White, The Jacksonians: A Study In Administrative History 1829-1861, at 18 (1954).
  10. AIR 1996 SC 2426
  11. H.W.R. Wade, Administrative Law, 4th ed., p.4.
  12. In re. Delhi Laws Act A.I.R., 1951, S.C. 332.
  13. Wade, op. cit., p.4
  14. Mathew, J. In Indira Nehru Gandhi v. Raj Narain, supra.
  15. JJR Upadhyaya, Administrative Law Pg 238.
  16. Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1461.
  17. (1948) 1 KB 223: (1947) 2 All ER 680 (CA).
  18. Durga Shanker Mehta v. Raghuraj Singh, AIR 1951 SC 520 (522).
  19. Sanwat Singh v. State od Rajasthan, AIR 1961 SC 715.
  20. Gulab Singh v. Collector of Farraukhbad, AIR 1953 All. 585.
  21. Waryam Singh v. Amarnath, AIR 1954 SC 215.
  22. Narayandiju v. Labour Appellate Tribunal, AIR 1957 Bom. 142.

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