- It is nearly impossible for government to function without giving some discretion to its officials considering the different situations and circumstances. But since such discretion is prone to be abused therefore it is necessary to have a system in place to ensure fair exercise of such discretion.
- Administrative Discretion means the freedom of an administrative authority to choose from amongst various alternatives but with reference to rules of reason and justice and not according to personal whims. The exercise of discretion should not be arbitrary, vague and fanciful, but legal and regular.
Control of Administrative Discretion
“Power tends to corrupt and absolute power corrupts absolutely”. -Lord Acton
Granting discretionary power to the executive is as important as keeping it under check in a welfare state so that the power is not misused. In this rule of law proposition, Dicey was of the view that there should not be any discretionary power in the hands of the executive as personal discretion would result in arbitrariness and discrimination. Modern day scholars like Prof. Goodhart believe that reasonable limits must be imposed upon the discretionary power of the administrative officers instead of negating the idea of administrative discretion.
The judiciary has played a key role in imposing restrictions on administrative discretion and has from time to time directed the legislature to formulate necessary guidelines and rules to maintain the conduct of the administrative officers. The system of checks and balances is an essential feature of the Indian Constitution.
The Parliamentary control of administrative discretion has its own limitations because the legislature can hardly spare time to examine individual cases involving administrative discretion. Also, if the lawmakers take up the role of administrators of law, then the general public would be left with no remedy in cases of injustice. In India, the Parliamentary control over administrative action is more of a constitutional obligation because the Executive is accountable to the Parliament.
In India and England, there exists a democratic Parliamentary form of government. The Parliament exercises effective control over the Executive. The natural remedy available to those aggrieved by any administrative action is to write to his/her Member of Parliament to seek redressal. The member may, in turn raise the issue informally with the Minister concerned or formally in the Lower House i.e. the Lok Sabha in the course of the debate.
Judicial Control over Administrative Actions
- Public administration exercises a large volume of power to meet the citizens need in modern democratic welfare state. Due to this there is a number of chances of them becoming arbitrary. So it is very necessary to control them through Judicial Control.
- The underlying object of judicial control is to ensure that the authority does not abuse (misuse) its power and the individual receives just and fair treatment.
Modes of Judicial Control
- Constitutional: The Constitution of India is supreme and all the organs of state derive their existence from it. Indian Constitution expressly provides for judicial review. If judiciary finds out that any law violates the Constitutional requirements, the Court has to declare it unconstitutional and therefore, void.
Judicial Review: The biggest check over administrative action is the power of judicial review. Judicial review is the authority of Courts to declare void the acts of the legislature and executive, if they are found in violation of provisions of the Constitution. Judicial Review is the power of the highest Court of a jurisdiction to invalidate on Constitutional grounds, the acts of other Government agency within that jurisdiction.
The judicial review is not an appeal from a decision but a review of the manner in which the decision has been made. The judicial review is concerned not with the decision but with the decision making process.
It was held in the case or Kesavananda Bharti v. State of Kerala, that judicial control is not just an integral part of the Indian Constitution but also a part of the basic structure which cannot be whittled down even through an amendment of the Constitution. Judicial control of administrative action is based on the principle that all powers must be exercised within the ambit of law. Unless the administrative action is violative of the Constitution, or is arbitrary in nature, the courts do not interfere with administrative decisions. While determining the validity of any administrative action, the courts exercise supervisory as well as appellate jurisdiction.
Concerns during Judicial Review
Judicial Review of the court should be concerned about the following:
- Whether a decision making authority exceeding its power ?
- Committed an error of law ?
- Committed a breach of rules of natural justice ?
- Reached a decision which no reasonable tribunal would have reached, or
- Abused its power ?
- Administrative Discretion and Article 14: Right to Equality does not provide everyone should be treated equally having no regards to their situations. In fact, if unequals are treated equally, it violates the right to equality. So, classification can be made on reasonable basis. The classification should have a rational nexus with the purpose of that classification and cannot be practiced arbitrarily. Therefore court keeps an eye on government administration bodies that they do not classify without reasonable basis.
- Administrative Discretion and Article 19: Article 19 guarantees certain freedoms to the citizens of India, but they are not absolute. Reasonable restrictions can be imposed on these freedoms under the authority of law. The reasonableness of the restrictions is open to judicial review. These freedoms can also be afflicted by administrative discretion.
The general principle laid down is that the power conferred on the executive should not be arbitrary, and that it should not be left entirely to the discretion of any authority to do anything it likes without any check or control by any higher authority.
Extraordinary and Ordinary Remedies.
Administrative action is also controlled through the extraordinary and statutory ordinary remedies provided under the Constitution. Provisions for extraordinary remedies are enshrined under Articles 32 and 226 of the Constitution. The Supreme Court and High Courts can issue writs of Habeas Corpus, Certiorari, Mandamus, Prohibition, Quo-warranto to control administrative actions. The ordinary remedies are included under various statutes e.g., declaration, damages, injunction etc.
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:
- Pre-publication and consultation with an expert authority,
- Publication of delegated legislation.
- Laying of rules.
It can be either Mandatory or Directory, to know, certain specified parameters are given:
- Scheme of the Act.
- Intention of Legislature.
- Language used for drafting purpose.
- 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.