FAILURE OF THE POWERS OF ADMINISTRATIVE DISCRETION
administrative techniques pursued by the government are the same as were cast
in a concrete mould more than a century ago. Files and minutes still go
perpetually from official to official and from ministry to ministry. As a
result, nothing moves except the river Ganges.
The concept of administrative Law
has emerged in our country for preventing the misuse of powers that are
provided to the executive as per the Indian Constitution. As every time it is
not always possible to follow the concept of Separation of Powers, these powers have been distributed due to
overburden of work over these organs. Taking, the instance of the legislative
organ into account, the authority of a legislature is to make laws, rules and
regulations for the working of country, therefore, a legislature cannot foresee
the consequences as a result of which that power is vested given in the hands
of the executives they, in turn, take chances to misuse it. The primary focus
of the Administrative law is over the executive body of the country.
The sole purpose of the
Administrative law is to ensure proper and reasonable control over the powers
of the administrative bodies working in the country fairly and efficiently. It can
be connoted as Quasi-legislation or Quasi-judicial as it takes responsibility
to act within their power and beyond the power to which it is vested. A proper
and careful glance of the remedies available in the law paves a way to help
those who are affected by administrative authorities of the country for proper
implementation and enforcement efficiently and peacefully.
The term ‘Discretion’ in daily life means choosing from among a variety of
available alternatives without any reference to a predetermined criterion, no
matter how fanciful that choice may be. A person who is writing his/her will
have the discretion to dispose of his property in any way, no matter how
arbitrary or luxurious the property may be. But, the term ‘discretion’, when
coupled with the word ‘administrative’ somewhat gives it a different color.
‘Discretion’ in this sense means choosing from amongst the various available
alternatives but concerning the rules of reason and justice and not according
to personal whims. Such exercise is not to be arbitrary, vague, and fanciful,
but legal and regular.
The problem of administrative
discretion is a complex one. It can be rightly said that, under an intensive
form of government, the government won’t be able to function properly, without
the exercise of some discretion by the administrative officials. But it is
equally true that absolute discretion is a ruthless master. It is more
destructive of freedom than any of man’s other inventions. Since the
advent of the Indian constitution, there has been a continuous conflict between
the claims of the administration for having absolute discretion and claiming
its subjects to be a reasonable exercise of it.
BEHAVIOUR AND ADMINISTRATIVE FROM THE PERSPECTIVE OF INDIA
The Indian courts have developed effective
parameters and criteria for the proper exercise of the discretionary power of
these authorities. The conspectus of the judicial behaviour remains halting,
variegated and residual, and lacks the activism of the American courts.
Judiciary exercise control over the administrative discretion in two ways:
Stage of Delegation of Discretion
The judiciary always tends to keep
control over the delegation of the discretionary power of the administrative authorities
by keeping adjudication upon the constitutionality of the law by which powers
are delegated to them with the reference to the fundamental rights provided
under the part III of the Indian Constitution. Every law and decision passed by
any authority of India, if passed, and found to be inconsistent with the
fundamental rights envisaged under the constitution shall be declared void ab-initio. Therefore, the law keeps
a check over the administrative authorities and could be declared ultra vires to Article 14 & 19, and
other provisions envisaged in the Indian Constitution.
Stage of Exercise of Discretion
In India, there is no Administrative
procedure Act which provides the power of judicial review over the exercise of
the discretion power of the administrative authorities. Therefore, the courts
have developed some formulations to control the exercise of administrative
These formulations are mentioned
● Failure of the authority over exercise of discretion.
● Failure of the authority in case of excess or abuse of
In this formulation, the courts can
exercise control over the administrative discretion if the authority has failed
to control its power or has put a fetter on its exercise, or has exercised its
power in a wrongful jurisdiction. The authority in which the discretion is
vested can be compelled to exercise it, but not in a particular manner.
In the case of Purtabpore Co. Ltd. v. Cane Comr. Of Bihar, is
a notable case in point. In the impugned case, the cane commissioner, who had
the power to reserve sugarcane areas for the respective sugar factories, at the
dictation of the chief minister, excluding 99 villages from the areas reserved
by him in favor of appellant-company. The court quashed the exercise of
discretion by the cane commissioner because he abdicated his power by
exercising it at the dictation of some other authority; therefore, it was
deemed that the authority had not exercised its discretion at all. It is
immaterial that the authority invested with the discretion itself sought the
However, this does not mean that the
administrative authority cannot frame broad policies for the exercise of
discretion. The authorities in the purported exercise of its discretion, it
must neither do what it has been forbidden to do nor must it do what it has not
been authorized to do. It must act in good faith, must have regard to all
relevant considerations, and must not be influenced by irrelevant considerations,
must not seek to promote purposes alien to the letter and the spirit of the
legislation that gives it the power to act, and must not act arbitrarily and
RIGHTS & ADMINISTRATIVE DISCRETION
There are instances in which the
policies and the rules passed by the administrative authorities overshadow the
constitutional provisions of the constitution. If the discretion of the
administrative authorities deems to be inconsistent with the fundamental rights
available to the citizens of India, it becomes the duty of the courts to take
action and safeguard the constitution.
In the case of the State of Punjab v. Khan Chand, The
truck of Khan Chand was requisitioned by the district magistrate, Rohtak for
famine relief work. He challenged the constitutionality of the East Punjab
Requisition of Movable Property Act, 1947, under which the action was taken
that the act completely violates the right of equality before the law under
article 14 of the constitution of India. The court upheld the contention, held
that the Act confers wide discretionary power upon authorities by not laying
down guidelines for movable property. Even the words ‘Public Purpose’ was not
mentioned anywhere. Therefore, the arbitrariness and power to discriminate are
writs large on the face of the act and fall within the mischief which Article
14 seeks to prevent.
In certain situations, the statute,
though it does not have the discretionary power to the administrative authority
to take action, may give discretionary power to frame rules and regulations
affecting the rights of the citizen. The bestowal of such discretion can be
controlled by the courts on the grounds of ‘Excessive
It has been firmly established that
the discretionary powers given to that governmental or quasi-judicial authority
must be hedged by policy, standards, procedural safeguards or guidelines,
failing which the exercise of discretion and its delegations may be quashed by
courts. This principle has been reiterated in many cases. However,
it is redundant that the guidelines must be ex
facie found. It is sufficient if guidelines could be gathered on the wholesome
reading of the statute and rules, regulations, orders, or notification issued
It can be concluded by saying that whenever a public authority is invested with the powers to make an order which can prejudicially affect the right of the individual, then, whatever may be the nature of the power, whatever may be the procedure prescribed and whatever may be the nature of authority, the proceedings of the public authority must be regulated by the analogy of rules governing the judicial determination of disputed questions.
 Sharp v. Wakefield, 1891 AC 173
United States v. Wunderlich, 96 L Ed 113.
 (1969) 1 SCC 308.
Anirudhsinhji Karansinjhi Jadeja v. State of Gujarat, AIR 1970 SC 1896.
Indian Rly. Construction Co. Ltd. v. Ajay Kumar, (2003) 4 SCC 579.
(1974) 1SCC 549.
Hamdard Dawakhana v. Union of India, AIR 1960 SC 554
Verma v. Union of India, (1980) 3 SCC 402.
Shivani v. State of Karnataka, (1995) 6 SCC 289.
 M.A. Rasheed v.
State of Kerala, (1974) 2 SCC 687.