Vous êtes sur la page 1sur 4


The significance of discretion is increasing day-by-day as the administration is required to apply

vogue and indefinite statutory provisions. Moreover, it has become very difficult to cope with
the present day problems within the general rule of comprehensive nature. What is true is that
the life is growing more and more complex and correspondingly numerous problems are arising
making it difficult for the administrator to cope with such difficult situations. Task of the
administrator becomes more and more difficult in the absence of discretion. Sometimes, the
enacted law falls short to find measures to solve the complicated problems. This, therefore,
expands the scope of discretion. In modem times, the state has to concern itself with the
welfare of the community in addition to classical functions. To achieve the constitutional goal of
establishing a welfare state has further compelled the government to take steps for the poor
people in the field of education, health, housing and other civic facilities. It may be noticed that
the administration is required to respond effectively to tackle these problems. In the process of
growth towards the well-being of the society, the scope of discretionary power is gradually
expanding and becoming inevitable to accomplish the cherished goals.
Nomenclature of Discretionary Power
The term 'discretion' implies power to make a choice between alternative courses of
action or inaction. In its ordinary meaning the word 'discretion' signifies unrestrained
exercise of choice or will freedom of according to one's judgement; unrestrained exercise
of will; the liberty or power of acting without control other than one's own judgement. It
has a reference to 'power' or 'right' conferred upon the public authority empowering them
to act officially in certain circumstances according to the dictates of their own judgement
and conscience, uncontrolled by the judgement or conscience of others.Tomlin's Law
Discretionary defines the word 'discretion' as to discern between right and wrong, and
therefore, whoever has power to act in discretion is bound by rule of reason and law.^
Discretion, in general, is discernment of what is right and proper. It denotes knowledge
and prudence, that discernment which enables a person to judge critically of what is
correct and proper united with caution; nice discernment, and judgement directed by
circumspection; deliberate judgement; soundness of judgement; a science of
understanding to discern between falsity and truth, between wrong and right, between
shadow and substance, between equity and colourable glosses and pretences and not to do
according to the will and private affection of the person

Need for Administrative Discretion

Administrative discretion is by-product of intensive form of welfare government. During the last
century, the role of government has changed worldwide, from laissez-faire to paternalism and
from paternalism to materialism, State is expected today to take care of its citizens from cradle to
the grave. People demand that it is a duty of the government to solve their problems. Regulations
of patterns of ownership, production and distribution is considered a responsibility of
government to guarantee the maximum good of maximum number.
Moreover, phenomenal growth in science and technology have burdened the modem
government with more and more duties to satisfy the conflicting claims of its people.
Modernisation and technological development have brought great structural changes and
have given birth to crucial problems such as cultural conflicts, haphazard urbanization,
ruthless exploitation of natural resources, environmental pollution, rapid transport and
traffic chaos, automation and consequential unemployment, irate production and
distribution, concentration of economic power, dismal health, education, incessant labour
strikes and lockouts, staggering inflation, accelerated smuggling, pervasive corruption,
adulteration, tax evasion, violence and many others, All these problems have resultantly
necessitated to solve the arising complex problems in the light of the commitment of a
welfare state which is possible only when more and more administrative authorities are
created and clothed with guided discretionary power enabling them to find ways and
means to solve the complexities of problems through administrative action

Roots of Discretion
Discretionary powers are the result of enactments. All the discretionary powers owe their
existence to the statute. It explains the intention of the legislature regarding the nature
and extent of any given power. The statute creates in the administrative authority
discretion to affect the rights of persons by laying down a policy or principle which is to
guide all the authorities to discriminate between the persons and things similarly situated.
Discretionary power is hedged by policy guidelines or procedural safeguards to regulate
its exercise to affect the rights of a person after laying down the policy or principle for its
guidance. Procedural safeguards such as recording of reasons for decision taken,
provision for appeal, and provisions for review and revision are well defined in the Act to
regulate the discretionary powers of the administrative authority. Guidelines are laid
down in the Act regarding the purpose or object for which the powers are delegated to the

Limits Governing Delegation of Discretionary Powers

It is an established norm that the legislature can delegate its legislative powers to
administrative agencies and administrative agencies can exercise those powers in the
discharge of their functions under the Act. Undoubtedly, delegation by legislature has
long been recognised as necessary in order that the exertion of legislative powers does
not become a futility. There are two divergent viewpoints with regard to the philosophy
of delegation of power. The non-delegation doctrine implies that delegation of power to
the public authorities by the legislative body is invalid. They who support this viewpoint
hold their opinion to the fact that the administrators could "fill up the details" of the law
without exercising delegated legislative powers The second viewpoint is that delegation
of power is an essential feature of modem welfare society. This approach involves a shift
from prohibiting delegation to prescriptive delegation, without any adequate standards.3^
According to the second viewpoint, it is evident that legislature may declare its will, and
after fixing a primary standard, devolve upon administrative officers the power to fill up
details by prescribing administrative rules and regulations
Judicial Review of discretionary power
The rule of law requiring that the administration can interfere with the right of an
individual only with the authority of law and that the authorisation is clearly limited in its
content, subject matter, purpose and extent so that the interference is measurable and to a
certain extent is foreseeable and calculable by the citizen.
The court have consistently insisted that the legislature must observe certain
constitutional limits in granting discretion to the administrative authorities but they have
not insisted upon a rigid criterion.

Grounds of judicial control:

If an administrative authority is authorised to act in its discretion it has to exercise its
discretion in consonance with the purpose of authorisation and the legal limits of the
discretion has to be observed.
Following are the grounds of judicial control:
(i) Excess of discretion
(ii) Abuse of discretion.
Excess of discretion:
Excess of discretion may occur in the most obvious form when the administrative
authority does some thing which it is clearly not authorised to do under the enabling
upper limit said by the law. But such obvious excess is rare. Normally excess occur in
subtle form such as taking of a decision never contemplated within the law.
Another form of excess is failure to exercise discretion. An administrative authority may
fail to exercise its discretion either because it does not exercise it due to idleness or it
think that it is under no obligation to exercise it or it mistakenly considers itself bound by
some other law or administrative order, failure to exercise may also arise from the
misconstruction of the legislation which grants the discretion. The authority may consider
that it has no discretion in the matter.
In common law a discretionary decision of a lower authority which under the law only
higher authority can take amount to excess or failure to exercise discretion.

Abuse of discretion:
Abuse of discretion may be either objection or subjective. An objective abuse results
form non observance or violation of constitutional or other legal principles such as
equality, reasonableness etc. A subjective abuse is result of an exercise of discretion for
wrong purpose or when its exercise is not justified by consideration on which it is
Though the forms of abuses of discretion are many but generally they over lap and it is
very difficult to separate them and have under different heads eg. abuse of discretion
either because the discretion has been used for an unlawful purpose or its exercise is
based on improper motives or bad faith or that the irrelevant consideration have been
taken in to account in to its exercise.
As we proceed further into the 21st century, the gamuts of activities that are being left to
administrative control are ever increasing. More and more discretion is being given to
administrative authorities to arrive at decisions without interference from other bodies. It
has the freedom to decide between alternate approaches as per its best judgment.
Despite this seemingly wide freedom, courts in India have taken a leaf from English
courts in that they have curtailed this discretionary power by ensuring that it is within the
limits prescribed by statute, is fair, just and based on relevant grounds and good faith.
The courts, in a gamut of aforementioned cases have made it clear that even when
discretion is granted, its abuse by authorities is not without redressal.
The abuse of administrative discretion takes a number of forms for instance, acting on
mala fide grounds, ignoring relevant considerations and acting on irrelevant ones, making
decisions without cogent material and misconstruing the power granted by law. Even
though the courts have established that interference in these decisions is permitted on
certain grounds, it still respects the process of decision making that the authorities
indulge in. The only check courts impose is that manner of making the decision be fair.