Administrative Discretion: Why It Exists and Why It Is Controlled

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.