Administrative Discretion: Why It Exists and Why It Is Controlled
Chapter Fifty-Two
Syllabus topic 4, "Grounds of Review"
Pages 158 to 160 of 430
In one line
Discretion is the freedom an official has to choose, and administrative law exists because that freedom cannot be unlimited and cannot be abolished.
In the wording a student can write in an exam: administrative discretion is the power conferred on an administrative authority to choose between courses of action, or between action and inaction, according to its own judgment of the circumstances; it is inevitable in a modern State because a legislature cannot foresee every case, and it is controlled rather than abolished, at the stage of its conferment and at the stage of its exercise.
MU's question
The University asks, on one paper, what is meant by administrative discretion and then for the various grounds of judicial review over it; on another, that administrative discretion is considered a necessity of the hour and asks for the grounds with recent judicial trends. This chapter answers the first half of each; the grounds are the twenty chapters that follow.
Why discretion is unavoidable
The legislature cannot foresee every case. A rule that fits every situation would have to be either so detailed that it becomes unmanageable or so general that it decides nothing.
Individual justice requires it. Two applicants for a licence are never identical, and a rule that treats them identically will be unjust to one of them.
Circumstances change faster than statutes. A power to act as the situation requires is the only way of dealing with an epidemic, a shortage or a strike.
Expertise lives in the administration. Whether a bridge is safe, whether a drug should be licensed, whether a route needs another bus, are questions the legislature cannot answer.
Why discretion is dangerous
It can be exercised for the wrong reason, and the reason is often invisible.
It can be exercised unequally, which in India is a constitutional wrong: E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555, holds that equality is antithetic to arbitrariness and that an arbitrary act is unequal and violates Article 14.
It can be exercised by a person the statute did not choose.
It can be exercised on no material at all: S.R. Venkataraman v. Union of India, AIR 1979 SC 49.
The two stages of control
Control at the stage of conferment. Before the discretion is used at all, the court can ask whether the statute conferring it is valid. A statute which confers an unguided and uncanalised power on an officer, with no policy and no standard, is liable to be struck down under Article 14, and Air India v. Nergesh Meerza, AIR 1981 SC 1829, is an example: a regulation which left the extension of an air hostess's service entirely to the option of the Managing Director without guidelines was struck down as conferring an unguided and uncanalised power.
Administrative Discretion: Why It Exists and Why It Is Controlled
Control at the stage of exercise. The larger part of the subject, and the whole of the rest of Module II.
The vocabulary
Discretion. A power to choose between lawful courses.
Subjective satisfaction. A statutory formula which makes the authority's own opinion the condition of the power, such as if the Government is satisfied or if the officer has reason to believe. It narrows but does not remove review: [Liversidge v Anderson and Subjective Satisfaction] and [Subjective Satisfaction in India after Barium Chemicals].
Objective condition. A formula which makes a fact the condition, so that the fact must exist.
Guidelines. Standards, whether in the statute or laid down by the authority itself, by which the discretion is to be exercised. They cure a want of guidance in the Act and they also bind the authority, because departing from them without reason is arbitrary.
A worked example
A section provides that the Collector may, if he is satisfied that it is necessary in the public interest, prohibit the holding of a fair in any place within the district.
The discretion is real: the Collector chooses. It is subjective in form, so the court will not ask whether it was necessary; but it will ask whether there was material on which the satisfaction could be reached, whether the material was relevant, whether the Collector applied his own mind rather than acting on instructions, and whether the reason given is the real reason. If the section had said the Collector may prohibit a fair, with nothing more, a court might hold the power to be unguided and strike the section down under Article 14 unless a policy could be found elsewhere in the Act.
What this does NOT mean
It does not mean the court substitutes its own view of the public interest. It asks whether the choice was lawfully made.
It does not mean subjective language ousts review. It changes what the court asks, not whether it asks.
It does not mean guidelines can be departed from at will. A published guideline creates a legitimate expectation and departing from it needs a reason.
Quick revision
Discretion is the power to choose. It is inevitable because a legislature cannot foresee every case, because individual justice requires it, because circumstances change and because expertise lies in the administration. It is dangerous because it can be exercised for the wrong reason, unequally, by the wrong person or on no material. Control operates at two stages: conferment, where an unguided power may be struck down under Article 14, as in Nergesh Meerza, and exercise, which is the rest of Module II. Subjective satisfaction narrows review but does not remove it.
Administrative Discretion: Why It Exists and Why It Is Controlled
Test yourself
1. Give two reasons why discretion cannot be abolished. The legislature cannot foresee every case, and individual justice requires that like cases be treated alike and unlike cases differently.
2. What is control at the stage of conferment? Testing the validity of the statute or rule which confers the discretion, and striking it down if the power is unguided and uncanalised, which offends Article 14.
3. Does subjective satisfaction exclude judicial review? No. The court does not ask whether the satisfaction was correct, but it does ask whether there was material, whether it was relevant, and whether the mind was applied.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.