Meaning and Scope of Administrative Discretion

Definition of Discretion

Administrative Discretion refers to the power vested in an administrative authority to choose between alternative courses of action. It is the freedom to decide what should be done in a particular situation. In the context of modern governance, it is impossible for the legislature to foresee every possible scenario and to lay down a rigid rule for every case. Therefore, statutes often confer discretionary power on administrative officials, using permissive language like "may," "it shall be lawful," or "as it deems fit."

For example, a law may state that a District Magistrate "may" grant a license for a public procession. This gives the Magistrate the discretion to grant or refuse the license based on their assessment of the situation (e.g., potential for public disorder). Discretion is an essential tool for effective and flexible administration, allowing officials to apply the law in a manner that is tailored to the specific facts and circumstances of a case.

Power to choose between different courses of action

The essence of discretion lies in the ability to make a choice. This choice is not a purely personal one; it is a choice to be made in the public interest and for the purposes for which the power was conferred. The power can manifest in several ways:

Power to Act or Not to Act: The authority may have the choice to take action or to refrain from acting.
Choice of Action: The authority may have a range of different actions it can take in a given situation.
Timing of Action: The authority may have discretion over when to take a particular action.

However, this power to choose is not a license to act arbitrarily. Administrative law is founded on the principle that there is no such thing as absolute or unfettered discretion. Every discretionary power is subject to legal limits, both express and implied.

Example 1. As famously stated by Lord Halsbury in the English case of Sharp v. Wakefield (1891), "...'discretion' means when it is said that something is to be done within the discretion of the authorities that something is to be done according to the rules of reason and justice, not according to private opinion... It is to be, not arbitrary, vague, and fanciful, but legal and regular."

This quote encapsulates the core idea that discretion must be exercised in a disciplined and principled manner.

Sources of Discretionary Power

Administrative authorities do not possess any inherent discretionary power. Their power is always derived from a legal source, which grants them the authority to act and defines the scope of their discretion.

Statutes

The primary and most common source of discretionary power is a statute enacted by the Parliament or a State Legislature. The legislature, being the supreme law-making body, delegates discretionary authority to various administrative bodies to implement the provisions of the statute.

How statutes confer discretion:

Permissive Language: The use of words like "may" instead of "shall" is a strong indicator of discretionary power. For example, "The licensing authority may grant a license..."
Subjective Formulations: The statute may grant power based on the subjective satisfaction of the authority. For example, "If the District Magistrate is satisfied that it is necessary to maintain public order, he may issue an order under Section 144..." or "The government may take over a company if it is of the opinion that it is being managed in a manner detrimental to the public interest."
Broad Criteria: The statute may grant power to be exercised based on broad and general criteria, such as "in the public interest" or "as it deems fit," which gives the authority a wide area of choice.

Rules and Regulations

Discretionary power can also be conferred by delegated legislation, such as rules and regulations made by the executive under the authority of a parent act. The parent act may delegate power to the government to make rules, and these rules, in turn, may grant discretionary powers to lower-level administrative officials.

Example 2. The Cinematograph Act, 1952, is a statute that provides for the certification of films for public exhibition. The Act itself grants broad powers to the Central Government. The Central Government, in turn, has made the Cinematograph (Certification) Rules, 1983. These rules grant discretionary powers to the Board of Film Certification (the "Censor Board") to refuse a certificate to a film if it is "against the interests of the sovereignty and integrity of India... public order, decency or morality..."

Answer:

In this example, the discretionary power of the Censor Board to certify or refuse to certify a film is derived from both the parent statute and the delegated rules and regulations. The broad and subjective criteria like "decency" or "morality" confer a significant degree of discretion on the Board.

Limits of Discretion

The central task of administrative law in this area is to control discretionary power to ensure it aligns with the Rule of Law. While the courts will not interfere with the merits of a discretionary decision (i.e., they will not substitute their own decision for the authority's), they will intervene if the decision-making process is flawed or if the power has been misused. The principle is that discretion must be exercised according to law.

Discretion must be exercised within the bounds of the law

Every discretionary power is constrained by legal limits, which can be both express and implied.

Express Limits

The statute or rule conferring the power may itself lay down specific limits or conditions for its exercise. For example, it might state that a power can only be used after consulting a specific body or only for a certain period of time. Any exercise of power in violation of these express conditions is illegal.

Implied Limits

These are limits that the courts read into the statute to ensure that the power is exercised fairly and reasonably. These implied limits form the basis for the grounds of judicial review of discretionary action. They require that the discretion must be exercised:

For the Proper Purpose: The power must be used for the purpose for which it was granted by the legislature, not for any collateral or ulterior purpose.
Based on Relevant Considerations: The authority must take into account all relevant factors and must ignore all irrelevant factors when making its decision.
In Good Faith (Bona Fide): The decision must not be motivated by malice, dishonesty, or any corrupt motive.
Without Non-Application of Mind: The authority must apply its own mind to the facts of the case and not act mechanically or under the dictation of a superior authority.
Reasonably and Rationally: The decision must not be so absurd or perverse that no reasonable person, acting reasonably, could have reached it (the principle of "Wednesbury unreasonableness").

These judicial controls ensure that even a wide discretionary power conferred in subjective terms is not a license for arbitrariness. The authority must act within the four corners of the law, and administrative law provides the tools to ensure that it does so.

Abuse of Discretion and its Control

Grounds for Abuse of Discretion

While administrative authorities must have discretion to govern effectively, this power is not absolute. The courts have developed several grounds for judicial review to control the exercise of discretion and to strike down decisions where this power has been abused. An "abuse of discretion" occurs when a decision-maker uses their power for a purpose other than the one for which it was intended, or when they fail to exercise their power in a lawful and reasonable manner.

Malafides

Mala fides is a Latin term meaning "bad faith." A discretionary decision is said to be made in bad faith if it is motivated by dishonesty, corruption, personal animosity, or a fraudulent intent. It is a conscious misuse of power. Proving bad faith is very difficult, as it requires demonstrating the actual state of mind of the decision-maker. However, if evidence of malice or a corrupt motive is presented, the court will not hesitate to strike down the decision.

Irrelevant considerations

A discretionary power must be exercised by taking into account all relevant considerations and by ignoring all irrelevant considerations. If a decision-maker bases their decision, in whole or in part, on a factor that is legally irrelevant to the purpose of the power, the decision is an abuse of discretion. Similarly, if they fail to consider a factor that the law requires them to consider, the decision is also flawed.

Example 1. A licensing authority has the discretion to grant a cinema license. The authority refuses to grant a license to an applicant because the applicant had previously given evidence against a police officer in another matter.

Answer:

The refusal would be struck down. The applicant's role as a witness in an unrelated case is an entirely irrelevant consideration for the purpose of granting a cinema license. The authority has based its decision on an extraneous factor and has abused its discretion.

Factual inaccuracy

While courts generally do not review findings of fact, they may intervene if a discretionary decision is based on a non-existent fact or a clear factual inaccuracy. If the very foundation of the decision is a factual error, the decision cannot stand. This is an extension of the principle of irrelevant considerations, as a non-existent fact is by definition an irrelevant consideration.

Improper purpose

This ground is closely related to bad faith, but it does not require proof of dishonesty. A decision is made for an improper purpose if the power is used for a purpose other than the one for which it was conferred by the statute, even if the decision-maker genuinely believed they were acting in the public interest. The court looks at the statute to determine the "proper purpose" of the power.

Example 2. A municipal corporation has the statutory power to acquire land for the purpose of "widening a street." The corporation acquires a piece of land, not to widen the street, but to enable a private builder to build a commercial complex.

Answer:

This would be a classic case of exercising power for an improper purpose. The power was granted for a public purpose (widening a street) but was used for a collateral private purpose. The acquisition would be quashed by the court.

Failure to exercise discretion (Abdication of discretion)

An abuse of discretion can also occur when the authority fails to exercise the discretion conferred upon it. This can happen in several ways:

Non-application of mind: The authority makes a decision mechanically without applying its mind to the facts and circumstances of the case.
Acting under dictation: The authority, instead of making its own independent decision, acts under the instructions or dictation of a superior authority. It has unlawfully surrendered its discretion to another.

Fettering of discretion

This occurs when an authority, through its own self-imposed policies or rules, effectively ties its own hands and prevents itself from exercising its discretion in individual cases. While it is legitimate for an authority to have a general policy to guide its decisions, it must not apply that policy so rigidly that it refuses to consider the merits of a specific case or to hear arguments for making an exception.

Arbitrariness

This is a broad ground of review, particularly in the Indian context. As established by the Supreme Court, any action that is arbitrary is a violation of Article 14 of the Constitution. A decision is arbitrary if it is irrational, illogical, or made without any discernible principle. This includes what is known in English law as "Wednesbury unreasonableness"—a decision so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied their mind to the question could have arrived at it.

Judicial Control over Discretionary Power

Judicial control is the most important safeguard against the abuse of administrative discretion. The courts in India, through their wide powers of judicial review, ensure that administrative authorities exercise their discretionary powers lawfully, fairly, and reasonably. The primary goal of this control is not to take over the decision-making function of the administration but to ensure that the administration remains within the limits of the law.

Review of discretionary decisions through writs and other remedies

The courts exercise control over discretion using the various judicial remedies available to them.

1. Writ Jurisdiction (Articles 32 and 226)

The writs are the most powerful and direct tools for controlling discretionary power.

Mandamus: Can be issued to compel an authority to exercise a discretion that it has refused to exercise at all (e.g., due to non-application of mind or acting under dictation). It cannot be used to dictate how the discretion should be exercised, but it can force the authority to make a fresh decision in accordance with law.
Certiorari: Can be issued to quash a discretionary decision that has already been made, if it is found to be flawed on any of the grounds of abuse of discretion (e.g., it was made for an improper purpose, based on irrelevant considerations, or is manifestly arbitrary).

2. Other Remedies

Injunctions: A civil court can issue an injunction to prevent an authority from acting on a discretionary decision that is ultra vires or illegal.
Declaratory Decrees: A court can issue a declaration that a particular exercise of discretionary power is unlawful and void.

The Limits of Judicial Review

It is important to understand the limits of judicial control. The courts operate on the principle of judicial restraint.

No Appeal on Merits: Judicial review is not an appeal. The court will not substitute its own judgment for that of the administrative authority. If the authority has acted within its jurisdiction, followed a fair procedure, and made a decision that is reasonable (even if the court might have reached a different conclusion), the court will not interfere.
Focus on the Decision-Making Process: The primary focus of the court is on the legality, rationality, and procedural propriety of the decision-making process, not on the correctness of the final outcome.

Through this structured system of review, administrative law strikes a crucial balance: it allows the administration the flexibility it needs to govern effectively, while simultaneously ensuring that the discretionary power is not absolute and remains firmly under the control of the law.