Administrative discretion refers to the flexibility and autonomy given to administrators and executive authorities while applying broad policies to individual situations. It allows them to assess each case based on its unique circumstances and take decisions they deem fit instead of mechanically following set rules. However, unfettered discretion can lead to arbitrariness and injustice. Therefore, administrative discretion needs to be kept in check through political and legal controls.
Evolution of the Concept
The foundations of administrative discretion can be traced back thousands of years to the principles of ethical decision-making laid down by Greek philosophers like Socrates. In modern history, its emergence can be seen during President Andrew Jackson’s tenure when he started appointing his supporters to government positions, leading to the “spoils system.” This enabled administrators to exercise significant discretion in hiring federal employees.
The New Deal programs under President Franklin D Roosevelt’s administration also relied heavily on administrative discretion to disburse welfare benefits. Subsequently, the passing of the Administrative Procedure Act, 1946 in the United States formally recognized the role of discretion while also putting in place statutory safeguards against its misuse.
Also Read: Notes on Administrative Law
Need for Administrative Discretion
Administrative discretion has become indispensable today with the state performing a multiplicity of functions. As the Supreme Court noted in Paschim Banga Khet Mazdoor Samity v. State of West Bengal, “In a welfare state the primary duty of the government is to secure the welfare of the people.“
To fulfill this duty, the state deals with complex socio-economic problems like poverty, healthcare, education etc. that require case-by-case analysis rather than a “one size fits all” approach. Direct legislation is not feasible for every administrative action. Discretion needs to be conferred to officials involved in grassroot implementation for optimum utilization of resources.
As Wade notes, “If the state is to care for its citizens from the cradle to the grave…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 must be discretionary power.“
Forms of Administrative Discretion
Administrative discretion manifests itself in diverse forms across the expansive state machinery:
- Licensing and Permits: Authorities have the discretion to grant/deny licenses based on prescribed conditions.
- Investigation: Agencies can decide whether investigation is warranted in a particular case.
- Inspections: Authorities determine frequency/methods of inspections.
- Allotment of Government Resources: Resources allotted based on officials’ assessment of public interest.
- Public Procurement Contracts: Relative weighting given to factors like cost v/s quality is discretionary.
- Tax Assessment: Complex tax calculations involve discretion of assessing officers.
- Conducting Elections: Election Commission decides on code violations, use of force, re-polls etc. based on its judgment.
As noted in Ram Jawaya Kapoor v. State of Punjab, these types of “residuary” functions requiring case-by-case decision making comprise a bulk of modern administrative activity. Unchecked discretion has the potential for misuse and arbitrary exercise of power. Thus, it is imperative to put in place control mechanisms.
Control over Administrative Discretion
The key methods to control administrative discretion are political control via the legislature/Parliament and legal control through judicial review.
The executive remains accountable to the Parliament in India’s democratic structure. The Parliament can frame policies, rules and guidelines restricting discretion available to administrators. MPs can also raise grievances regarding administrative high-handedness through questions, debates etc. forcing the executive to respond.
However, parliamentary control has limitations as the legislature lacks the time for examining individual instances of misuse of discretion. Complete policy straitjacketing through parliamentary legislation is also not feasible. The intricacies of implementation ultimately need to be left to the administrators’ judgment.
Judicial review of administrative action flows from the basic structure of the Constitution as held in the Kesavananda Bharati case. It is the most effective control mechanism keeping administrators within legal bounds and ensuring rule of law. Through writ remedies and appeals, high courts and the Supreme Court can quash administrative acts found to be illegal, irrational, vitiated by procedural impropriety or disproportional.
As Lord Diplock notes in Council of Civil Services Unions v. Minister for the Civil Service, judicial review ensures authorities act lawfully and fairly, follow correct procedure, exercise discretion reasonably and proportionately, respect legitimate expectations created vis-a-vis individuals through previous conduct, respect human rights and give everyone an equal right to be heard before deciding anything that affects them detrimentally.
Important Grounds for Judicial Review
Some key grounds based on which courts can strike down unreasonable exercise of administrative discretion are:
- Exceeding jurisdiction
- Denial of natural justice
- Acting arbitrarily/in bad faith
- Fettering discretion through rigid self-created rules
- Taking irrelevant considerations into account
- Failure to take relevant factors into account
- Abuse of discretion amounting to mala fides
- Violation of legitimate expectations
In cases like S.G. Jaisinghani v. Union of India and Maneka Gandhi v. Union of India, the Supreme Court has warned all authorities that statutory discretion does not mean absolute, arbitrary power. It has to be exercised judicially, objectively and in public interest. Citizens have a right to good governance and discretion needs to facilitate it, not obstruct it.
Balancing Administrative Efficiency with Judicial Safeguards
While reviewing discretion, courts have to strike a practical balance between administrative efficiency and legal safeguards against the “drunken driver” misusing his power. Blind judicial interference guided solely by abstract notions of ultra vires could bring governance to a standstill.
As Lord Greene notes in Associated Provincial Picture Houses, Ltd. v. Wednesbury Corporation, courts must realize that discretion can be properly exercised in more than one way and only “a very extreme case” would warrant judicial intervention.
Similarly, in election cases, while dealing with alleged misuse of discretion in violating the election code, the Supreme Court has clarified that only substantial illegalities and procedural improprieties will merit setting aside electoral results. Not every minor breach allows courts to nullify people’s mandate.
In conclusion, administrative discretion has to be structured in a way that balances expediency with responsibility. Officials require flexibility to adapt policies to ground realities. But flexibility cannot extend to absolutism. It is a “power plus responsibility” model that is squared by accountability. Mechanisms like judicial review, audits, RTI and public participation offer the restraints needed to channelize discretion constructively and fulfill constitutional ideals of a just, equitable and responsible state. Ultimately, utmost probity and wisdom has to be cultivated within every link of the bureaucratic machinery. This remains an unceasing challenge and pursuit for good governance.