Law & Society

Introduction:

Since time immemorial civilizations and citizens had always desired and urged for the people who could lead them in various sphere of life which sublimes the importance of administration. At that era the need for administration began which gave birth to administrators, at that point of time state was considered as a “Police State” which now has became welfare state. No modern government however can function without the grant of discretionary power to administrative authorities. This laid the administrators with greater power and enhanced their discretionary limits.

For instance in the leading case of Julius v. Lord Bishop of oxford , the Bishop had the authority to issue a commission of inquiry in case of alleged misconduct by a clergyman, either on an application by someone or suo motu and when such an application was made, the question was whether the bishop had a right to refuse the commission. The House of Lords held that the Bishop has the discretion to act pursuant to the compliant and no mandatory duty was imposed upon him.

Definitions:

The definition of Administrative Discretion is given by many of the thinkers but there are few notable definitions
The definition of ‘administrative discretion’ given by Professor Freund as follows:
“When we speak of administrative discretion, we mean that a determination may 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.”
Coke proclaims “Discretion” as “it 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 will and private affection”
Thus it can be said that decision taken by the administrative authorities are not only based on the evidence but in accordance to the policy and also in accordance to the discretionary power conferred on the authority.

Meaning:

Administrative discretion is not a term 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 A.D. 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.

Needs and Justifications:

In today’s 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 today’s 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.

Cases & Justification:

In the leading case of Susannah Sharp v. Wakefield, Lord Halsbury stated ; “ Discretion means when it is said that something is to be done with within the discretion of the authorities that something is to be done according the rules of reason and justice not according to private opinion….. according to law and not humor. It is to be, not arbitrary, vague and fanciful, but legal and regular. And it must be exercised within the limits, to which honest men competent to the discharge of his office ought to confine himself…..”

When a statute uses the word ‘may’ before describing power for e.g. ‘the collector may confiscate goods’ or ‘the commissioner of police may detain a person’ the word ‘may’ includes freedom of authorities either to act or not to act or to act in one way or the other.

The main Concern of Administration Discretion is the discretionary powers given to the authorities must be exercised properly in accordance with and within the limits of law from which it derives the power. As the function of the state becomes increasingly complex, judicial control of administrative actions has advanced. The courts have to perform the difficult task of allowing maximum freedom to administrative authorities in the choice of their responses without letting them act arbitrarily.

Judicial Review of Administration Discretion has also expanded the match of increasing power and increasing subtlety of administrative actions implicit in the complex regulatory function of modern State. The Court of House of Lord in England had laid down the tests to be met for the exercise of administrative discretion in wednesbury’s case and later on proportionality test which came in through doors of European Convention of Human Rights. Courts in India has also travelled the same path with the exception that proportionality test was a part of Indian law. The Court has extended scope of Judicial Review by virtually obliterating the distinction between “error of law” and “error apparent on face of law.”

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 Discretionn 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 burocracy. If these two sides are secured then administrative discretion would be as Kohinoor in Queen’s Crown.

Abuses or Limitations of Administrative Discretion:

It is more destructive of freedom than any of man’s other invention.

When discretionary powers are submitted to any administrative authority than 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.

Eg:- 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 sets 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:-

a) 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.

b) 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 exercised.
For instance, if the relevant regulation and powers the management to dismiss a teacher, the power cannot be exercised to dismiss the principle.

c) 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.

d) 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 vires and void.

e) Arbitrary Action—

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.

f) 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.

g) 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.

h) 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 vires 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.
Two reasonable person can reasonably come to opposite conclusion on the same set of fact without forfeiting their title to regarded as reasonable.

Cases:

Instances when Court has favoured Administrative Discretion (Positive effect)
In Bharat Heavy Electricals Ltd. v. M. Chandrasekhar Reddy , in this instant case an employee has taken an housing loan from the company by depositing the title deeds of the land, later he tried to get the deed back on forged documents with the intention of selling the property. The documents were found by the company as forged and after enquiry the services of the employee was terminated. Nevertheless the Labour Court in exercise of its discretion quashed the dismissal order on three mitigating circumstances; (i) there was no previous instance of misconduct (ii) employee is a cultural activist (iii) punishment of dismissal was harsh. Reversing the order of labour Court for reinstatement, Supreme Court held that the mitigating circumstances held by the court for the exercise of its discretion are neither reasonable nor judicious. Exercise of discretion must be reasonable and within the bounds of Law. Having regard to the above principles, authority must act in a bona fide manner. The decision could be one of the 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 subjective satisfaction.
In M/s Diwan Suger Mills Co Ltd v. India a notification issued under SS 4 and 5 of the suger (Control) Order 1955, compelling factories to sell sugar at a fixed price was upheld. The prices fixed were neither below the cost of production nor arbitrary. The enabling Act was also upheld, as it provided for adequate safeguard against abuse of power. The Central Government was required to give consideration to the factors enumerated in the Act and this, in the opinion of the court, helped check abuse of power. Where power is vested in a high official, it is presumed that it will be exercised objectively and hence a law vesting such power is held to be a reasonable on the rights to carry on trade or business.
In Muni Suvrat-Swami Jain S.M.P Sangh v. Arun Nathuram Gaikwad the Supreme Court held that it cannot direct administrative authority to exercise its discretionary powers in a particular manner. In the said case a writ petition was filed in the high court against action of Municipal Corporation in demolishing an unauthorized structure. The high court issuing the writ of Mandamus directed the authority to demolish the entire illegal and unauthorized structure. Appealing before the Supreme Court the Municipal Corporation contended that the Temple Trust has filed a fresh application for registration of Structure and the same would be disposed off in accordance with the Law. The Supreme Court held that Municipal Corporation Act gives the authority discretion whether or not to demolish the unauthorized construction therfore court cannot impend the exercise of that discretion by a mandatory order. Thus exercise of discretion cannot be clogged by any mandatory order of the Court though Court can compel the authorities to exercise its discretionary power when it refuses to exercise.
In Manohar Lal v. State of Maharastra In this Case Sec. 187-A of the Sea Custom Act gave wide discretionary powers to the authority to either refer a case of smuggled goods to a magistrate or to look into matters themselves. The court upheld the constitutionality of the statute on the ground that as this discretion is to be exercised by senior officer, that will stand a guarantee against its misuse. This kind of judicial behaviour aimed at preserving wide discretionary powers may ultimately end up in destroying it.

Instances when Court has not favoured Administrative Discretion (Negative effect)
In G. Sadanandan v. State of Kerala , the petitioner challenged his detention order by the Government on the ground of mala fide exercise of discretion. The facts were brought the Court to show that the Deputy Superintendent of Police made a false report against the petitioner who was a wholesale dealer in Kerosene, in order to benefit his relative in the same trade but eliminating the petitioner from the trade. In absence of a counter affidavit from the side of the Government the court quashed the order.
In Himat Lal K Shah v. Commissioner of Police , Rule 7 under Sec 44 of Bombay Police Act, 1951 gave unguided discretionary power to the police commissioner to grant or refuse permission for any public meeting held on a public street. The Supreme Court struck down Rule 7 as being an unreasonable restriction on the exercise of Fundamental Rights.
In State of Madras v. V.G. Row , Section 15 (2) (b), Criminal Law Amendment Act, 1908 as amended by Madras Act 1950 gave wide discretionary power to the State Government to declare any association as unlawful. The Court Struck down the section as being unconstitutional because eit allows the administrative authority to exercise its discretion on subjective satisfaction without permitting the grounds to be judicially tested.
In Harakchand Ratanchand Banthia v. Union Of India The Gold Control Act, 1986 gave the administrative authority with a wide discretionary power to grant or refuse to grant license to any dealer in gold ornaments. Though the act has provided that such power has to be exercised with reference to the number of existing dealers, anticipated, demanded, suitability of the application and public interest, the court struck down the law on the ground that such vague expression may result in the arbitrary exercise of power.
In West Bengal v. Anwar Ali the West Bengal statute provided for special courts to try cases or classes of cases or offence or classes of offence for speedy trial. Sec 5 (1) of the special Court’s act was challenged on the ground of equality clause of Art. 14. The Court held that the said Act did not lay down what types of offences or cases were to be tried by Special Court. The executive authorities could arbitrarily select a case for trial by the special court. The court invalidated the law on the ground that the use of vague expression like ‘speedier trial’ confers a wide discretion on the government and can be basis of unreasonable classification.
In Satwant Singh v. Associate passport officer , the plaintiff’s application for passport was rejected by the passport officer as the passport Act which gave powers to passport officer to grant or to refuse any passport without any justification or guidelines. The court held that the exercise of such power was held invalid and the court asked the parliament to specify the criteria in accordance with which the passport officer was supposed to use his discretion.
In Sunil Batra v. Delhi Administration , the court has pointed out that the detenue or a prisoner was not denued of all fundamental rights and are entitled to such fundamental rights as were directly withdrawn as a result of incarceration. The court further provided the guidelines that the detenue can not exercise the freedom to move throughout the territory of India [Art 19 (1) (d)] or freedom to reside and settle in any part of territory of India [Art 19 (1) (e)]. The court further held that the freedom should not be curtailed beyond what is permissible by prison laws.
In Barium Chemicals Ltd. v. Company Law Board , in case of a company the Company Law Board can under Sec 237 of the Companies Act, 1956 order an investigation into the affairs of the company if it is of the opinion that the business of the company is being conducted with intent to defraud its creditors or members or the management of the company is guilty of fraud, misrepresentation or any other misconduct or the members of the company have not been given the full information about the affairs of the company. Company Law Board under Sec 237 ordered an investigation into the affairs of the plaintiff company. Here the basis of the exercise of discretion for ordering investigation was that due to faulty planning, the company incurred loss and the value of shares of the company had fallen and many of the eminent persons resigned from Board of Directors. The court quashed the order of the Board on the ground that the basis of exercise of discretion is extraneous to the factors mentioned in Sec 237 for exercise of the discretion.
In S.R. Vennkataraman v. Union of India , The appellate was a central Government officer, he was made prematurely retire from his service in ‘public interest’ under Rule 56 (j) (i) on attaining the age of 50 years. The contention of the appellate was that the government did not apply its mind to her service record and that in the facts and circumstances of the case the discretion vested under the said rule was not exercised in furtherance of public interest and that the order was based on extraneous circumstances. The Government contended that there was nothing on record to justify the order. The Supreme Court quashed the order of the government and held if a discretionary power has been exercised for an unauthorized purpose, it is immaterial whether its repository was acting in good faith or not. An administration action based on reason or fact that does not exist must be held to be an abuse of the power.
In Rampur Distillery Co. Ltd. v. Company Law Board , The Company Law Board has wide discretionary powers under Sec 326 of the Companies Act 1956; regarding renewal of managing agencies. The Company Law Board did not approve the renewal of the managing agents of the Rampur Distillery. The reason given by the Company Law Board for their actions was the past conduct of the managing agencies. The company Law Board held that the Vivian Bose Enquiry Commission has found this managing agency guilty of gross Misconduct during the year of 1946-1947. The Supreme Court held that it did not find any fault in taking into consideration the past conduct of the company, but the court held that the order was bad because the Company Law Board did not take into consideration the present acts of the managing agency which were very relevant factors for judging suitability.

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.