Administrative Law Assignment 7

What is administrative Discretion?
Administrative discretion is an informal unilateral practice and is therefore unprotected by the

protections inherent in structured procedure. Discretion in simple words means choosing among
the different alternatives available without respect to any predetermined criterion, irrespective of
how fanciful that choice may be. The administrative discretionary issue is complex. Really, the
government can not work in any intensive form of government without the officials exercising
some discretion. It is important not only for the individualization of the administrative power but
also because in the dynamic nature of modern state it is humanly impossible to lay down a
guideline for every imaginable eventually. Equally true, however, is that absolute power is a
merciless master. It is more destructive of liberty than any Other technology made by man.
There are three main heads under which the control over administrative discretion exercised.
1. Parliamentary Control over administrative discretion
2. Judicial Control over administrative discretion
3. Procedural and Executive Control
Parliamentary control over Administrative Discretion
There are several grounds of parliamentary control.
1. Direct General Control – The first form of parliamentary control shall be exercised at the
time the enabling act is passed. This is Parliamentary hearings that are of a general and direct
control sort. In India, different methods and procedures are used, such as discussions on the
delegation bill, which include aspects such as requirement, scope, form of delegation and
authority delegated to. In addition, any Member can.ask questions on any aspect of the
delegation of legislative powers and, if disappointed, may give notice of discussion under Rule
59 of the Rules of Procedure and Conduct of Business in Lok Sabha. Budget cuts during grant
voting and committee debates throughna private member’s Bill requesting changes to the parent
act or through a debate at the time of the President’s speech to.the joint parliamentary session are
also useful. Yet in India as well as in the UK. Those methods are seldom employed. This is due
solely to a lack of tradition or experience. However, scholars think that this approach should be
used widely and efficiently to nip delegation vices in the bud.
2. Direct Special Control – Prominent among these remedies is the “laying on the table”
method, which demands that administrative “laws” rendered under delegated authority be
submitted for approval to the legislature. Under direct control, laying is an important and
necessary feature, and it is laid down in compliance with the law, which ensures that it should be
put before Parliament after making the regulation. It contains three important parts to be
exercised according to.the degree of control required.
 Simple Laying
 Negative Laying
 Affirmative Laying
And two key tests are “Mandatory test” & “Directory test.”
i. Mandatory testing – Where laying demand is a condition pattern to direct the rule into effect,
then laying need is compulsory in such ancase. Where the clause that the rules should be drafted
in a particular format is specified then it becomes mandatory to adopt the format.
ii. Directory test – If the laying prerequisite is next to enforce the rule, it will be a directory in
nature.
3. Indirect control – This is a power every Parliament and its committees exercise. Subordinate
legislation is another term for such form of committee. The committee’s principal job is to
investigate.
 Whether rule are according to general object of the act.

 It bars the jurisdiction of the court in direct or indirect ways.
 Whether it has retrospective effect or not.
 Whether it safeguard or destroy the Principle of Natural Justice.
 Expenditure involved in it is from Consolidated fund.
In the case of Narendra Kumar v. Union of India, it was held by the Supreme Court that the
provision under Section 3(5) of the Essential Commodities Act, 1955, which explains that any
rules framed under the Act must be presented before both the houses of the Parliament.
Therefore, clause 4 of Non – Ferrous Control Orders, 1958 has no effect until it is presented in
the Parliament.
Judicial Control over Administrative Discretion
The rule of law has been applied to judicial review. The court must see that the delegated
authority as defined is within the meaning of the Constitution. Judicial review is more effective
as it is[2] not recommended by the.court, but it specifically violates the ultra vires law. In
accordance with section 13(3)(a) “Rule” is stated in the Indian Constitution which clearly
indicates that the State should not make any law which abridge the right given in Part iii of the
Constitution. It is dependent on two basic grounds:
 It is ultra vires to the Constitution of India, and

 It is ultra vires to the enabling Act.
Although Indian courts have established some successful guidelines for proper exercise of
discretion, the conspectus of judicial conduct remains stagnant, varied, and residual, and lacks
American courts’.activism. Administrative direct judicial review process is exercised in two
grounds :
(1) Control at the stage of delegation of discretion – The court exercises control over the
delegation of discretionary powers to the government by adjudicating the constitutionality of the
law under which these powers are delegated in relation to the fundamental rights set out in Part
III of the Constitution of India. Consequently, if the law confers undefined and broad discretion
on any administrative authority, it may be considered ultra vires Article 14, Article 19 and other
Constitutional provisions.
(2) Control at the stage of the exercise of discretion – In India, unlike the USA, there is no
Administrative Procedure Act which provides for judicial review of administrative authority
exercising. The.power of judicial review therefore derives from the statutory structure of the
tribunals. Indian courts have always held the view that judge-proven discretion is a negation of
the rule of law. Thus, they developed different formulations to control the exercise of
administrative discretion.
In P.B. Samant v. State of Maharashtra, the court held the distribution of cement against the law
and the circulars or guidelines issued by the Government on that behalf as bad. The distribution
of cement was in favour of certain builders in return for the donations given by them to certain
foundations of which the Chief Minister was a trustee. It was a clear case of mala fide exercise of
power. The power to control the distribution of an essential commodity like cement is given to
the Government with a view to ensuring its equitable distribution. When this power is used for
obtaining donations for a trust, it is a clear case of abuse of power.
Procedural and Executive Control
There is no clear protocol for this until the legislature compels the executive to obey those laws
or procedures. It may take a long time to follow a.particular format which will certainly negate
the actual purpose of the act. Procedural regulation therefore means that certain rules are laid
down under the Parent Act which must be followed whilst it is compulsory or directory to follow
it or not. It includes three components:
 i. Pre publication and consultation with an expert authority,

 ii Publication of delegated legislation.
 iii Laying of rules.
It can be either Mandatory or Directory, to know, certain specified parameters are given:
 i.Scheme of the Act.

 ii.Intention of Legislature.
 iii.Language used for drafting purpose.
 iv.Inconvenience caused to the public at large scale.
And these four parameters were given in the case Raza Buland Sugar Co. vs. Rampur Municipal
Council.
Discretion in layman’s language means choosing from amongst the various available alternatives
without reference to any predetermined criterion, no matter how fanciful that choice may be. A
person writing his will has such discretion to dispose of his property in any manner, no matter
how arbitrary or fanciful it may be. But the term ‘discretion’ when qualified by the word
‘administrative’ has somewhat different overtones. ‘Discretion’ in this sense means choosing
from amongst the various available alternatives but with reference to 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 complex. It is true that in any intensive form of
government, the government cannot function without the exercise of some discretion by the
officials. It is necessary not only for the individualization of the administrative power but also
because it is humanly impossible to lay down a rule for every conceivable eventually in the
complex art of modern government. 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. Therefore, there has
been a constant conflict between the claims of the administration to an absolute discretion and
the claims of subjects to a reasonable exercise of it. Discretionary power by itself is not pure evil
but gives much room for misuse. Therefore, remedy lies in tightening the procedure and not in
abolishing the power itself.
Judicial behaviour and administrative discretion in India

Though courts in India have developed a few effective parameters for the proper exercise of
discretion, the conspectus of judicial behaviour still remains halting, variegated and residual, and
lacks the activism of the American courts. Judicial control mechanism of administrative
discretion is exercised at two stages:
(1) Control at the stage of delegation of discretion;
(2) Control at the stage of the exercise of discretion.
(1) Control at the stage of delegation of discretion.– The court exercises control over delegation
of discretionary powers to the administration by adjudicating upon the constitutionality of the
law under which such powers are delegated with reference to the fundamental rights enunciated
in Part III of the Indian Constitution. Therefore, if the law confers vague and wide discretionary
power on any administrative authority, it may be declared ultra vires Article 14, Article 19 and
other provisions of the Constitution. In case of delegated legislation, courts have after been
satisfied with vague or broad statements of policy, but usually it has not been so in cases of
application of fundamental rights to statutes conferring administrative discretion. The reason is
that delegated legislation being a power to make an order of general applicability presents less
chance of administrative arbitrariness than administrative discretion which applies from case to
case.

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What is administrative Discretion?

Administrative discretion is an informal unilateral practice and is therefore unprotected by the

1. Parliamentary Control over administrative discretion

2. Judicial Control over administrative discretion

3. Procedural and Executive Control

Parliamentary control over Administrative Discretion

There are several grounds of parliamentary control.

 Whether rule are according to general object of the act.

Judicial Control over Administrative Discretion

 It is ultra vires to the Constitution of India, and

Procedural and Executive Control

 i. Pre publication and consultation with an expert authority,

 i.Scheme of the Act.

Judicial behaviour and administrative discretion in India

(1) Control at the stage of delegation of discretion;

(2) Control at the stage of the exercise of discretion.

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