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DISCRETIONARY POWERS

PROJECT SUBMITTED TO:


MR. ABHISHEK BHARDWAJ
(FACULTY: ADMINISTRATIVE LAW)

PROJECT SUBMITTED BY:


SHRADDHA BHAGAT
SEMESTER-VI, SECTION-B
ROLL NO-155

SUBMITTED ON: 15.02.2017

HIDAYATULLAH
NATIONAL LAW
UNIVERSITY
UPARWARA POST,
ABHANPUR, NEW
RAIPUR, C.G

DECLARATION
I, Shraddha Bhagat, hereby declare that, the project work entitled, Discretionary
Powers submitted to H.N.L.U, Raipur is record of an original work done by me under
the able guidance of Mr. Abhishek Bhardwaj, Faculty Member of Administrative Law,
H.N.L.U, Raipur.

Shraddha Bhagat
Semester-VI,
Section-B, Roll No-155

ACKNOWLEDGEMENTS
I would like to take this opportunity to express my deep sense of gratitude towards my
course teacher, Mr. Abhishek Bhardwaj for giving me constant guidance and
encouragement throughout the course of the project.
I would also like to thank the University for providing me the internet and library
facilities which were indispensable for getting relevant content on the subject, as well as

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subscriptions to online databases, which were instrumental in writing relevant text.
And finally I would like to thank my friends for their constant encouragement.

Shraddha Bhagat
Semester-VI,
Section-B, Roll
No-155

CONTENTS
i. DECLARATION..........................................................................................02
ii. ACKNOWLEDGEMENT.............................................................................03
1. INTRODUCTION.......................................................................................05
2. OBJECTIVE................................................................................................06
3. RESEARCH METHODOLOGY.................................................................07
4. DEFINITION...............................................................................................08
5. NEED FOR DISCRETION..........................................................................09

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6. WHY IS JUDICIAL CONTROL NECESSARY?.......................................10
7. GROUNDS OF JUDICIAL CONTROL.....................................................11
8. FAILURE TO EXERCISE DISCRETION.................................................13
9. AUTHORITY HAS EXERCISED DISCRETION IMPROPERLY...........15
10. CONCLUSION...........................................................................................18
11. BIBLIOGRAPHY.......................................................................................20

INTRODUCTION
Discretion is a tool only when properly used; like an axe, it can be a weapon for mayhem
or murder. In a government of men and of laws, the portion that is a government of men,
like a malignant cancer, often tends to stifle the portion that is a government of laws.
Perhaps nine-tenths of injustice in our legal system flows from discretion and perhaps
only one-tenth from rules.
Function dischargeable by the administrators may either be ministerial or discretionary.
Ministerial function is one where the relevant law prescribes the duty to be performed by

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the conserned authority in 'Certain and Specific term' leaving nothing to the decision or
judgement of authority. According to Prof Wade: Discretion implies power to make a
choice between alternative courses of actions.
In the word of Lard Halsbury (as observed in sharp v. Wakefield & Rooks case.)
'Discretion means when it is said that something is to be within discretion of authorities
that something is to be done according to the rules of justice, not according to private
opinion and according to law and not humour. It is to be, not arbitrary, vague and
beneficial, 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.
The problem of administrative discretion is complex. It is through that in any intensive
form of govt. the govt. cannot function without the exercise of some discretion by the
officials. Discretion is all pervading phenomenon of modern age. It is conferred in the
area of rule making or delegated legislation. The legislature hardly gives any guidance as
to what rules are to be made. Similarly discretion is conferred on adjudicatory and
administrative authority on a liberal basis that is power is given to apply a vague statutory
standard from case to case.
Rarely does the legislature makes a comprehensive legislation which is complete in all
details. The legislation is sketchy or skeletal, leaving many gaps and conferring powers
on the administration to all in a way it deems necessary or reasonable or it is satisfied or
is of opinion. Quite often the legislature bestows more or less unqualified discretion on
the executive. Administrative discretion may be developed by such word or phrases as
public interest prejudicial to public safety or security, satisfaction, reasonable etc.

OBJECTIVE
To study about discretionary power.
To study the need for discretion.
To study grounds of judicial control

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RESEARCH METHODOLOGY
This research is descriptive and analytical in nature. Secondary and Electronic resources
have been largely used to gather information and data about the topic. Books and other
reference as guided by Faculty have been primarily helpful in giving this project a firm
structure. Websites and dictionaries have also been referred.

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DEFINITION
The definition of Administrative discretion is offered by many but there only few which
are worth mentioning. Prof. Freund said that: When we speak of administrative
discretion, we mean that a determination must be reached, in part at least, upon the basis
of consideration not entirely susceptible of proof or disproof It may be practically
convenient to say that discretion includes the case in which the ascertainment of fact is
legitimately left to administrative determination."

In black laws dictionary, administrative discretion would be a public officials or


agencys power to exercise judgment in the discharge of its duties.

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According to another thinker, Coke, discretion would be a science or understanding to
discern between falsity and truth, between right and wrong, between shadows and
substance, between equity and colorable glosses and pretences, and not to do according to
their will and private affection."

In Oxford Dictionary of law, administrative powers have been defined as the


discretionary powers of an executive nature that are conferred by the legislature on
government, ministers, public and local authorities and other bodies and persons for the
purpose of giving detailed effect to the policy intended by the legislature itself."

Discretionary powers bestowed on the administrative authorities are of a vast range. Their
power serve the purpose of simple ministerial tasks like maintenance of birth and death
register as well as those which seriously affect the rights of an individual, e.g. acquisition
of property, regulation of trade, industry or business, inquiry, seizer, confiscation and
destruction of property, detention of a person on subjective satisfaction of an executive
authority and many more. The list of their functions is exhaustive in nature.

Basically, administrative discretion is provided to the executive using which they drive
the process of governance smoothly in the country. In short, the purpose of the discretion
is to serve the countrys citizens in the best possible way.

NEED FOR DISCRETION


The need for discretion arises because of the necessity to individualize the exercise of
power by the administration i.e. the administrative has to apply a vague or indefinite
statutory provision from case to case. This is the Incremental approach.
Following are the reasons for conferment of discretion on administrative authorities:
1. The present day administration problems are of varying nature and it is difficult to
comprehend them all within the scope of general rule.
2. 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 a general rule.

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3. 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 specific rules applicable to
the situation.
4. Circumstances differ from case to case so that applying one rule mechanically to all
case may itself result in injustice.

Why Is Judicial Control Necessary?

Judicial review is the soul of our constitution. It is the exercise of the courts inherent
power to resolve whether an action is lawful or not. It holds the balance of power
between individuals and the government. It legitimizes the application of administrative
sanctions.

In India, judicial review has a firm base. The framers of our constitution had not only
believed in limited government was necessary for democracy but also enshrined the
philosophy in the constitution. It is a modus operandi for public accountability of the
administrative process. In this process, it principally maneuvers as a check upon the
administrative branch of the government and the agencies operating, thereunder.
According to Schwartz, the basic remedy against illegal administrative actions is the
judicial review. A person aggrieved by an agency decision or other act may challenge its

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illegality in the courts. Without, judicial review, administrative action and discretion
would be limited only by agency, self-discipline, executive direction, or legislative and
public pressure. Thus this control acts as a limitation on nasty abuses of power.

Courts in India are the guardians of our constitution. From time immemorial, they have
believed that executive and legislative powers which are immune from judicial scrutiny
are in a way repudiation of rule of law. Therefore for the purpose of doing justice and to
protect the Rule of Law, they through their various pronouncements, have build up an
assortment of formulations to control the exercise of administrative discretion. After
clubbing these formulations, we can summarize the judicial control at the stage of
exercise of discretion by the administrative authorities into two things:

That the authority is deemed not to have exercised its discretion at all

That the authority has not exercised its discretion properly

GROUNDS OF JUDICIAL CONTROL


If an administrative authority is authorised to act in its discretion it has to exercise its
discretion in consonance with the purpose of authorisation and the legal limits of the
discretion has to be observed. Following are the grounds of judicial control:
(i) Excess of discretion
Excess of discretion may occur in the most obvious form when the administrative
authority does some thing which it is clearly not authorised to do under the enabling
upper limit said by the law. But such obvious excess is rare. Normally excess occur in
subtle form such as taking of a decision never contemplated within the law.
Another form of excess is failure to exercise discretion. An administrative authority may
fail to exercise its discretion either because it does not exercise it due to idleness or it
think that it is under no obligation to exercise it or it mistakenly considers itself bound by

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some other law or administrative order, failure to exercise may also arise from the
misconstruction of the legislation which grants the discretion. The authority may consider
that it has no discretion in the matter.
In common law a discretionary decision of a lower authority which under the law only
higher authority can take amount to excess or failure to exercise discretion.
(ii) Abuse of discretion
Abuse of discretion may be either objection or subjective. An objective abuse results
form non observance or violation of constitutional or other legal principles such as
equality, reasonableness etc. A subjective abuse is result of an exercise of discretion for
wrong purpose or when its exercise is not justified by consideration on which it is based.
Though the forms of abuses of discretion are many but generally they over lap and it is
very difficult to separate them and have under different heads eg. abuse of discretion
either because the discretion has been used for an unlawful purpose or its exercise is
based on improper motives or bad faith or that the irrelevant consideration have been
taken in to account in to its exercise.

JUDICIAL CONTROL :
Judicial control mechanism of administrative discretion is exercised at two stages.
A. Control at the stage of delegation of discretion.
1. Administrative discretion and art 14.
2. Administrative discretion and art 19, 21, 22 etc.
B. Control of the exercise of discretion.
1. Abuse of discretion- when the authority has not exercised its discretion properly.
2. Non application of mind- the authority is deemed not to have excised its discretion at
all.
1. Abuse of discretion (Not properly exercised)
(a) Unreasonable exercise of discretion.
(b) Mixed motives.
(c) Bad Faith.
(d) Subjective Satisfaction.

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(e) Relevant and Irrelevant consideration.
(f) Legitimate expectation.
(g) Proportionality.
2. Non Application of Mind- (Failure to exercise )
(a) Abdication and dictation of discretion.
(b) Fettering of discretion.
(c) Estoppel.
(d) Delegation of discretion.
(e) Acting Mechanically.

Failure To Exercise Discretion


The courts exercise judicial control if the administrative authority has either resigned
from using its power or has put restrictions on its implementations of the discretion or the
jurisdictional facts are either absent or have been erroneously concluded.In Indian
Railway Construction Co. Ltd. v. Ajay Kumar, the law has been made crystal clear. In this
case the Supreme Court held that in general, discretion must be exercised only be the
authority to which it is committed. The authority must genuinely address itself to the
matter before it; it must not act under the dictates of another body or disable itself from
exercising discretion in each individual case. In the purported exercise of discretion, it
must not do what it has been forbidden to do, nor must it do what it has not been
authorized to do. Judiciary can compel the administrative authority to exercise the
discretion but can not make them exercise it in a particular way. There would be very few
situations which would be discussed where there is an occurrence of failure to exercise
discretion. The following chapter has been divided into two sections:

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Surrender, abdication or dictation of discretion- In Purtabpore Co. Ltd. V. Cane Commr.
Of Bihar, the Cane Commissioner had the discretion to hold back sugarcane quarters for
the individual sugar factories. But instead of using the discretion by own will, he acted
upon the dictates of the Chief Minister. The commissioner excluded 99 villages from the
area held in reserve by him in favour of the appellant-company previously. The two judge
bench of the Supreme Court quashed the exercise of discretion by the Cane
Commissioner on the ground that he abdicated his power by exercising it at the dictation
of C.M. Therefore, it was deemed that the authority had not exercised its discretion at all.
Thus, such so-called exercise of discretion amounted to a failure to exercise discretion by
the authority.

Fettering of discretion- In Shri Rama Sugar Industries Ltd. v. State of Andhra Pradesh,
Sec-21 of the Andhra Pradesh Sugarcane (Regulation, Supply and Purchase) Act, 1961
gave discretion to the administrative authority to excuse any new factory from payment
of tax. The government framed a new policy granting exemption only to those factories in
the co-operative sector. The Supreme Court, held that the adoption of this policy has
fettered the exercise of discretion and said that an authority bestowed with such statutory
discretion may justifiably implement general rules or principles to channel itself in the
exercise of its discretion provided such rules are not arbitrary and not opposed to the
objectives of the Act. The court in addition said that by adopting such rules, the agency
must not stop itself from exercising authentic discretion in individual cases.

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Authority Has Exercised Discretion Improperly
Indian courts have shown that they are pretty eager to examine the factual basis on which
the administrative authorities have exercised their discretion. Furthermore, whether the
discretion has been exercised in an unreasonable manner or absolutely in defiance of
logic and morality, the court to use the Wednesbury Test of reasonableness and see
whether the discretion has been outrageously used, so much that it paved way for
arbitrariness. The test suggests that the discretion can be nullified if there is a manifested
error in the exercise of such power or the exercise of such power is manifestly arbitrary
or mala fide or unreasonable. The decision could be from numerous choices open to the
authority, to exercise its choice; the court would not surrogate its view. The court would
infact strive to ensure its mala fide use.

Unreasonable exercise of discretion or violation of Wednesbury Principle: In SR


Venkataraman v. Union of India, the appellant, a Central Government Officer was retired
prematurely from his service in public interest on attaining 50 years of age. According

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to her there was non-application of mind on the part of the government. Her service
record was made bad by giving adverse remarks by the chairman and that in the facts and
circumstances of the case the discretion vested under Rule 56(j) (i) was not exercised for
furtherance of pubic interest but on extraneous circumstances. The government conceded
that there was nothing on record to justify the order. The Supreme Court said that an
administrative order which is based on reasons of fact which do not exist must therefore
be held to be infected with an abuse of power.

Malafide Exercise of Power: In G. Sadanandan v. State of Kerala, the Supreme Court


held that a mala fide exercise of discretion is nothing but abuse of power. In this case, the
petitioner challenged his detention order by the government on the ground of mala fide
exercise of discretion. The facts presented in court showed that a fake report against the
petitioner who was a wholesaler dealer in kerosene was made by the Deputy
Superintendent of Police (Civil Supplies Cell). He was actually a relative of his
competitor therefore in order to benefit his relatives in the same trade; a plot was hatched
to eliminate the petitioner from the trade. Moreover no counter-affidavit from the side of
the government was filed thus, the court quashed the order declaring improper use of
discretion.

Irrelevant Considerations: In Barium Chemicals v. Company Law Board, the court was of
opinion that if it is claimed that the conditions do not exist or that they are such that is not
viable for anyone to form an opinion therefrom then such opinion is challengeable on the
ground of non-application of mind or perversity or on the ground that it was formed on
collateral grounds and was beyond the scope of the statute. In this case, a board was
instituted under sec-237 of the Companies Act, 1956 which is authorized to investigate
only if in its opinion the company is trying to defraud the creditors or members, etc. but
here it conducted the enquiry on the basis of faulty management of the company which
resulted in heavy downfall of the share prices. Therefore, the court by quashing the order,
said that executive by merely declaring an opinion does not mean that the order would
not be scrutinized.

Relevant Factors disregarded: In Rampur Distillery and Chemical Co. Ltd. v. Company
Law Board, the Supreme Court affirming the decision of the lower Court held that since

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the board has based its decision solely on the past conduct without considering
subsequent conduct and activities of the person which are relevant factors, its decision
was wrong. Sometimes an order may be based partly on relevant and partly on irrelevant
considerations. In such situations the Courts would try and find out the true purpose for
which the power was exercised. After due consideration, the Court comes to the
conclusion that the purpose of the exercise was improper, it would be irrelevant that
incidentally a genuine purpose is also served. This would depend on the facts and
circumstances of each case. Therefore, where a matter is to be decided by the authority
solely on the basis of its subjective satisfaction, it must be properly based on relevant
considerations only and not a mix of both as it would be very difficult for the court to
decide as to how much the irrelevant consideration played a role in deciding ona
particular course of action.

Mixed motives /colourable exercise of discretion: In Jiwani Kunar v. First Land


Acquisition Collector, where the government could acquire property for a public purpose
only temporarily, and the land was acquired permanently, the court held it to be a
colourable exercise of power.

Subjective Satisfaction: The court said that administrative authoritys decision could be
one of many choices but it is for the authority to make choice. Court cannot substitute its
choice; no matter a little play in the joints is certainly possible while dealing with the
subjective satisfaction. In Shalini Soni v. Union of India the Supreme Court observed
that it is an unwritten rule of the law, constitutional and administrative, that whenever a
decision-making function is entrusted to the subjective satisfaction of a statutory
functionary, there is an implicit obligation to apply his mind to pertinent and proximate
matters only, eschewing the irrelevant and the remote."

Arbitrary exercise of discretion- In R.D. Shetty v. International Airport Authority of


India, the issue was regarding awarding of a contract for running a second-class
restaurant and two snack bars by the International Airport Authority, which is a statutory
corporation. The right of selection and rejection was with the Airport Director who
accepted the tender from a non-hotelier. The petitioner in this case was neither an hotelier
nor tenderer. His claim was that both the tendered were in the same position as if a

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necessary condition i.e., only registered hoteliers can send tender, can be forgone then
why not petitioners. The Supreme Court upheld the Locus Standi and Jus. Bhagwati said
that every action of the Executive Government must be informed with reason and should
be free from arbitrariness. That is the very essence of the rule of law and its bare minimal
requirement.

However, in all these cases the burden of prove lies on the petitioner and whereas the
administrative authorities duty would be to show that discretionary power granted was
exercised in advance for the purpose which the power was granted in the first place.

CONCLUSION

If any one says that can we do away with administrative discretion then the answer is that
it is impossible. It is a price or collateral that we keep for getting governed in a better
way. There are numerous merits of administrative discretion. Firstly, they are very well
acquainted with the ground work of the issue. Therefore with this efficient knowledge
comparatively, a better outcome can be achieved. Secondly, to get the speedy and
effective resolution of the dispute, it is the easiest way to get it. Thirdly, to get effective
results, the authority has to be sanctioned with enough discretion then only this tortuous
evil would turn into an instrument of success in governance. Therefore, the utility of
having such discretion is relatively beneficial for the country.

But what if there is no judicial control at all over this discretionary power? The citizens
would be left without remedy if anything happens. Normally, it is suggested that while
granting discretionary powers to administrative authorities, there should be a broad
framework laid down by the legislature following which the administrative authorities

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would disseminate their obligatory duties. But, even after that we would find various gaps
being left by the legislature; it is here that the courts play their most important role. They
check that these gaps dont allow the administrative authorities to abuse the power.

The court while examining their right use of discretion would have to be very careful as it
is strictly prohibited to go into the merits of each case. It is however, allowed to look into
the manner in which the power was exercised. Practically, it is impossible for the courts
to check the manner of the exercise of powers without going into the merits of the case. A
judge in India has to decide a case "on the merits" when he/she bases the judgment on the
elementary issues and considers technical and procedural defenses as either unimportant
or overcome. Moreover, in India the jurisprudence follows that courts are not supposed to
substitute their own decision with administrative discretion. The courts in such cases
make sure that the administrative discretion is exercised, that to properly exercised. No
individuals fundamental rights can be breached, not by any another individual nor even
by the state. Courts have very sternly believed in this theory and thus has successfully it
put into work.To conclude, in reality, Indian courts job is hard as they have to be very
careful that the main idea behind the grant of this discretionary power is maintained and
put to task on an account of any failure, with the same time it also has to be cautious that
the fact that they dont overwork their judicial discretion.

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BIBLIOGRAPHY

WEBSITES:

https://www.lawteacher.net/free-law-essays/constitutional-law/judicial-control-and-
exercise-of-discretion-constitutional-law-essay.php

https://definitions.uslegal.com/d/discretionary-power/

http://lawprojectsforfree.blogspot.in/2010/08/administrative-law-discretionary-
powers.html

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