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ADMINISTRATIVE DISCRETION: THE THIN LINE BETWEEN FLEXIBILITY AND ARBITRARINESS BY: ABISHA CHRISTOLIN S
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ADMINISTRATIVE DISCRETION: THE THIN
LINE BETWEEN FLEXIBILITY AND ARBITRARINESS
AUTHORED BY: ABISHA CHRISTOLIN S,
SCHOOL OF EXCELLENCE IN LAW, TNDALU,
III YEAR, BA.LL.B (HONS),
CONTACT NO.: 9385481861
Abstract:
In this article, we embark, on a
journey through the complex landscape of Administrative discretion, delving
into the subtle dance between flexibility and arbitrariness. We will navigate
the legal frameworks and real world case laws, unravelling the nuanced thread
that distinguishes thoughtful decision – making from the pitfalls of potential
misuse of power. Throughout, we highlight the vital importance of maintaining
the thin line for the achievement of good governance.
Keywords:
Administrative discretion, Administrative
authority, Flexibility, Arbitrariness, Welfare State
Introduction:
Over time, the traditional theory of
“laissez faire” and the “Police State” was abandoned and gradually replaced by the
concept of the “Welfare State”. The new concept expanded the functions of
government which required some powers to be bestowed in the hands of
administrative authorities, which in general can be used for the substantive
satisfaction of administration. So, in order to fulfil the object of “Welfare
State” and to contend the complex socio-economic conditions the administrative
authority was vested with extensive power of discretion to handle intricate
problems in performing its administrative functions. Discretion in contemporary
administration is given in all nuances of the administrative process,
irrespective of the legislative, judicial or quasi-judicial function it
performs. It is because of the concentration of all powers in the hands of the
administration, i.e., the administration administers the laws enacted by the
legislature, performing executive function; enacts laws when legislative powers
are delegated to it by the legislature, performing legislative functions and
interprets law through administrative tribunals, performing judicial function.
The law enables the administrative authorities to use this discretion when
required. They use this power to select the best from the various possible
choices given to them, considering the situation and circumstances pertaining
to the issue. This ensures that the administrative authority has sufficient
autonomy to act independently in carrying out its functions.
However, the power of discretion is
subjected to the principles of natural justice and reasonable restrictions to
ensure fairness in administrative actions. The law also in certain cases
establishes scrutiny to ascertain that this discretionary power is exercised
according to the guidelines of the statute. But, it is not always possible to
lay down norms or standards for the exercise of discretionary powers, due to
the uncertainty of cases.
Navigating Administrative Discretion:
The root of administrative discretion
can be traced back to the writings of the Greek philosopher Socrates, who laid
down the basis for philosophical ethics. He laid down certain criteria to
determine the course of action to be followed in case of situations requiring
immediate action. Thus, he enumerated the concept of administrative discretion
from those morals.
Discretion implies the power to make
a choice between alternative courses of action.[1]
Coke, proclaimed that, “Discretion” 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 wills and private affections.[2]
Lord Diplock in Secy. Of State for
Education and Services v. Metropolitan Borough of Tameside[3] said, “The very concept of administrative
discretion involves a right to choose between more than one possible cause of
action on which there is room for reasonable people to hold differing opinions
as to which is to be preferred”.
Any administrative authority, when
conferred with discretionary power by the legislature, also has the
responsibility to exercise it properly, honestly, and reasonably.
Circumspection, care, caution and vigilance are implied in discretion conferred
upon the administrative authorities in all administrative functions. The
functions of administrative authority may either be ministerial or
discretionary. There is no element of discretion used by administrative
authorities in performing ministerial functions. This is because, in the
ministerial function, the pertinent law specifies the specific terms in which
duty is to be performed by the concerned authority, leaving nothing to the
discretion of the authority. But, in the contemporary period, purely
ministerial functions are far too few. In discretionary matters, “Discretion is
merely the administration’s own idea of expediency, incapable of being declared
wrong in law by any higher authority.”[4]A
public officer has discretion whenever the effective limits of his power leave
him free to make a choice among possible course of action or inaction.[5]
The Spectrum of Flexibility:
Any government performing only
ministerial duties with zero discretionary functions will be unduly rigid and
unworkable. So, administrators, at least to an extent, should be fetched with
discretion to choose when, whether and how they will act. This enables the public
officer to use his own discernment to make decisions in grey areas where the
rules, regulations and procedures are vague. Enactment of comprehensive
legislation with complete details by the legislature is rare and this demands
the administrators to fill in the gaps in areas which are necessarily deemed
fit, by utilising the powers conferred on them with “reasonableness”. These
skeletal statutes essentially allow public administrators the discretionary
power to interpret laws as they see fit, as long as their discretionary
interpretations do not contradict specific statutory provisions.[6]This
becomes imperative, in modern days, because of the growing role of
administration which is now required to handle crucial and critical problems
which involves investigation of facts, analysis of issues, making of choices
and exercise of discretion upon selection of the action to be taken.
According to Freund[7],
“The plausible argument in favour of administrative discretion is that it
individualizes the exercise of public power over private interests, permitting
its adjustment to varying circumstances, and avoiding an undesirable
standardization or restraints, disqualification, and particularly of
requirements. Under this view, the main advantage of discretion is the flexibility
of its operation, and its main province would be the regulation of interests in
which public policy demands both maintenance of minimum standards and the
possibility of variation.......”
Flexibility in administrative
discretion is essential for the following reasons:
1) The complex nature of circumstances
which cannot be confined within the scope of general rules
2) The dynamic and evolving nature of
problems which makes the adoption of general rules difficult
3) Unpredictability of problems for
which there is no specific rule to be applied
4) Injustice arising out of applying one
rule to all cases which have different circumstances attached to it
In the case of State of Punjab v. Khan Chand[8], the Supreme Court held
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.”
Risk of Crossing Boundaries - The thin line awareness:
The general rule is that the exercise
of discretionary power in an administrative action by an administrative
authority cannot be obtruded by the Court, since it is not the forum to hear
appeals from the decisions of the authority. The Court would not intrude on and
question the opinion of the authority as right or wrong, nor substitute its own
views in the opinion formed by the concerned authority. It is observed in the
case of “Small v. Moss[9]
that, “Into that field (of administrative discretion) the Courts may not
enter”. It was also expressed by Lord
Halsbury, in the case of Westminster Corpn. v. London & North Western Rly.
Co.,[10]that,
“Where the legislature has confined the power to a particular body, with a
discretion how it is to be used, it is beyond the power of any Court to contest
that discretion”. The Supreme court of Indian also accepted this principle and
laid down a similar judgment in the case of A.K. Gopalan v. State of Madras[11].
It can be viewed from the words of
Lord Acton that, "Power tends to corrupt and absolute power corrupts
absolutely". Similarly, broad discretionary power vested in the hands
of administrative authorities increases the possibility of being misused and
exercised arbitrarily. In summary, the broader the discretion, the greater the
chance of its abuse. There is only a thin line between fairness and
arbitrariness in an action. When given a wider scope for the exercise of
discretionary power, it may mislead the original object for which it is vested.
When there is an excess of discretionary power in the hands of the
administrative authorities, they may act:
1) Mala fide - both dishonest intention
and malice in law
2) Irrelevant or extraneous in
consideration of a case
3) Discriminately
4) Unreasonably
All these are collective called
arbitrary use of discretion. Broad powers always breed the danger that its
wilder will get power drunk.[12]
Justice Douglas of the US Supreme Court, held in the case of United States v.
Wunderlich[13] that,
“Where discretion is absolute, man has always suffered.... Absolute
discretion.... is more destructive of freedom than any of man’s other
inventions”.
Balancing Act: Flexibility versus Arbitrariness:
The balance between flexibility and
arbitrariness can be brought about only by ascertaining control over the
exercise of discretionary powers by the administrative authority. According to
Wade, “If discretionary power is to be tolerable, it must be kept under two
kinds of control: Political control through the Parliament and legal control
through the judiciary”[14].
Firstly, Political Control over
administrative discretion is done by the Legislatives. In a parliamentary form
of government, the executive is kept under an obligation to give an account of
its performance to the parliament.[15]
The Legislature itself lay down some accountability mechanism through various
controls for the exercise of discretion.
Those controls can be divided into
three:
1) Direct General Control - Exercised at
the time of passing of the enabling Act whereby, the Act itself provides the
scope, form of delegation and authority of delegation which confines a clear
cut jurisdiction under which the discretion can be used.
2) Direct Specific Control - Requires the
delegated legislation made by the Administrative authority to be laid down
before Parliament. This method is called “laying on the table”. There are three
types of laying. They are:
i.
Simple
Laying - Laying with no further
direction, wherein the purpose is to simply inform the House.
ii.
Negative
Laying - Laying subject to negative resolution implies the coming into force of
rules with the exception that it shall cease to have effect if the House annuls
it.
iii.
Affirmative
Laying - Laying subject to affirmative resolution where the rules need approval
to come into effect or else they cease to be in operation by such resolution.[16]
3) Indirect Control - Through
Parliamentary Committees
Secondly, Legal Control of
administrative discretion is done by the Judiciary through Judicial Review.
According to Jain & Jain[17],
“It is an accepted axiom that the real Kernel of democracy lies in the Court
enjoying the ultimate authority to restrain the exercise of absolute and
arbitrary power”. Like other democracies of the world, India also gives the
Court considerable powers to control and review administrative action. One can
find innumerable principles which the Courts have propounded and developed for
regulating the functioning of the administration in several directions.[18]
Courts generally control
administrative discretion when the administrative authority acts arbitrarily.
The grounds under which the judiciary review are as follows:
1) Mala fide – when administrative
authorities act with corrupt or dishonest intention against the law of
fairness, equity and justice
2) Malice in Law - when statute confers
the right to perform one action and the authority performs another; or use of
discretionary power for improper purpose
3) Irrelevant Consideration - decisions
made based on extraneous consideration
4) Ignorance of relevant consideration –
leaving the express and implied considerations mentioned in the statute
5) Breach of Principles of Natural
Justice – failure of fair hearing and rule against bias
6) Colourable Exercise of Power –
authority seeking to achieve something else when power is conferred for other
purpose.
7) Administrative discrimination –
discriminatory or unequal treatment of equals in pursuance of discretion
These checks are necessary for a
harmonious exercise of administrative discretion. In the case of Muhammad
Basher v. Abdul Kareem[19]
the court held that “a balanced and rational compromise, between the rights of
the citizens and the actions of the public functionaries, is obligation of the
Superior Courts”.
Conclusion:
There should always be a neutrality
between the administrative needs of a developing Welfare State and Individuals’
rights and freedoms. An administrative body without any discretion becomes
rigid and impractical. Also, an administrative body without any control may
turn out to be an absolute arbitrary body and act against the concept of rule
of law, and it may become hostile to the democratic Constitution and pose a
threat to the fundamental principles guaranteed to every citizen by the
Constitution. So, sticking to the right equilibrium is necessary for good
governance. The fundamental values inherent in the legal order of a country
must be instilled in the functioning of the administrative bodies and its
officials whenever they tend to ignore them. A strong oversight system with
transparency and accountability is crucial to tread the delicate balance and
upholding the ideals of equity, fairness and justice in the execution of
administrative discretion.
References:
1. M.P. Jain & S.N. Jain, Principles
of Administrative Law, LexisNexis, 7th edition, (2017), 429-438, 474-508,
670-734.
2. C.K. Takwani, Lectures On
Administrative Law, EBC Publications, 7th edition (Reprinted),
(2023), 286-351.
3. Prof. Upendra Baxi, Administrative
Law, EBC Publications, 8th edition, (2012), 63-76
6. https://www.scconline.com/blog/post/2022/06/24/abuse-of-administrative-discretion-a-detailed-study/
[1] K.C. Davis, Discretionary Justice
(1969) 4
[2] Rooke’s Case, (1598) 5 Co Rep 99b,
100a: 77 ER 209.
[3] (1976) 3 WLR 641 (HL).
[4] Wade, “Quasi-judicial and It’s
Background,” 10 Camb, L.K. 216, 224 (1949)
[5] K.C. Davis, Discretionary Justice
(1969) 4
[6] https://www.taylorfrancis.com/chapters/edit/10.1081/e-epap2-10/administrative-discretion-kenneth-warren
(last accessed on 13/10/2023)
[7] Administrative Powers over Persons
and Property, 97-103 (1928)
[9] (1938) 279 NY 288
[10] 1905 AC 426, 427: 93 LT 143 (HL)
[11] AIR 1950 SC 27: 1950 SCR 88
[12] Wade, Courts and Administrative
Process, 63 LQR 164 (1947)
[13] 342 US 98, 101 (1951)
[14] Wade & Forsyth, administrative
Law, 4 (2009)
[15] Goel, S. L. Advanced public
administration. Deep and Deep Publications (2003): 565
[17] M.P. Jain & S.N. Jain, Principles of
Administrative Law, 534 (2017)
[18] See M.P. Jain, Justice Bhagwati
and Indian administrative Law, (1980) Ban. LJ 1
[19] PLD 2004 SC 271
Article Information
ADMINISTRATIVE DISCRETION: THE THIN LINE BETWEEN FLEXIBILITY AND ARBITRARINESS BY: ABISHA CHRISTOLIN S
Authors: ABISHA CHRISTOLIN S
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/10/20
- Issue 7
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
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