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As we all know the Governmental functions are mainly divided into 3 categories,
namely Legislature, Judiciary and Executive. The 1st 2 categories generally do not
encroach upon the 3rd category. The Administrative law has developed only in the
20th Century, before that there was only police state. Due to reasons like
establishment of democratic countries, Industrialization, Increased population and
increased literacy demand for demand for welfare and social state increased and
there was need of Administrative Law.
Administrators have the power of decision making by making law and innumerable
rules under this. The law prescribes the procedures to be followed and guidelines to
be respected in the exercise of discretion involving decision making. However due
to the complexity of modern socio-economic conditions, the discretionary powers
of the administrative authorities have increased enormously. The primary function
of executive are execution of laws, evolving and implementing government
policies, providing public health, safety and morality and standards of life in the
nation. For the performance of these vast and large functions and for the best
administration and to obtain the required goal they need powers. Such powers are
delegated by parliament to administer. Therefore gradually vast powers are vested
and accumulated in the hands of executive. It has become necessary to empower
them with wide discretionary powers for the speedy and efficient administration.
"Every rose has thorns", similarly these vast wide discretionary powers, which are
vested in executive may be used for the public welfare and may be used for selfish
needs of the executive. The powers are like that of a knife having edges on the two
sides.
ADMINISTRATIVE DISCRETION
The dictionary meaning of discretion is "making a free choice or freedom of act".
But the meaning of Administrative discretion differs a little from the former one.
Administrative discretion means to give a decision on a matter with various
alternative available, but the judgment should be with reference to rules of reason
and justice. The administrative discretion should not be based on personal notions
and fancies. Article 14 of the Constitution of India provides for the clause of
equality before law and with this it protects the citizens from unreasonableness,
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VIOLATION OF FUNDAMENTAL RIGHTSThe constitution of India conferred most important rights on citizens which are
called "Fundamental rights". The fundamental rights can be enforceable by any
court against the state. They are given a pride of place by the constitution. The
chapter of fundamental rights is revered and not liable to the abridge by legislative
or executive act or orders, except to the extent provided in the appropriate Articles
in Part III. These are negative in character. The states, including administrative
authorities are asked not to violate these fundamental rights. If any executive takes
an administrative action which is violation of fundamental rights, such
administrative action shall be held ultra vires. The court give utmost importance to
safeguard the fundamental rights.
There are 2 stages where a court can check for arbitrariness of discrimination
action of the administrators. Those are
A. AT THE STAGE OF DELEGATION OF DISCRETION The court has the power to control the delegation of discretionary power of the
administrations, where the powers has been delegated with reference to
fundamental rights stated under constitution of India. If the parent statute itself is
ultra vires the constitution, then the conferred discretionary power upon the
administration is not valid. Every law in India should be based on the criterion of
Article 19 and 14 of the Indian Constitution. If the law is vague and has wide
discretionary power, then it may declared ultra vires.
B. CONTROL AT THE STAGE OF EXERCISE OF DISCREATION
The court has the power to control the arbitrary discretion of administrative
agencies, which is based on the following formulations.
1. The authority should not have exercised its discretion at all.
2. The authority should have exercised the discretion in improper way.
So, the discriminatory action of administrations can also be checked at the judicial
level. The constitution of India has conferred the power to review to the judiciary.
The court itself can carry on a check on the arbitrariness exercise of the
discretionary power of the administrators. The Court can take a suo moto cases to
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CONCLUSION
The importance of discretion has amplified day by day as the administration is
requisite to apply unclear and indefinite statutory provisions, to individual case.
Further, It is very difficult to understand the present day issues within the general
rules of a broad nature. Many problems are new and beyond the range and
experience of the administrator to be solved easily. Sometimes there is lack of
specific rules and statutory provisions. Even then the administrator is expected to
solve them in a rational manner, as any sensible man exercises his power in that
similar case.
But the fact to fact approach is detrimental, as the administrator may not have a
general rule or norm to be adopted. There is every danger of discrimination leading
to abuse of power. Further it is a time overwhelming process to select the best
lessons of action in each individual case. The official tries to defer any decision
making if the case involves vested interests, so as to avoid any public controversy,
his decision is likely to be in front. But it is a fact, that the administrative discretion
individualize the exercise of public command, over private interests, permitting its
adjustments to varying circumstances. The modern tendency is to somewhat
standardize administrative discretion leaving only a residual margin for
adjustability, in the area of fact situations, in exacting case.
There are certain principles governing the exercise of discretionary power. The
authority in which a discretion is vested can be compelled to exercise that
discretion, but not to exercise in any meticulous manner. In general, a discretion
must be exercised only by the authority to which it is committed. That authority
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must genuinely address itself to the matter before it. It must not act under the
dictation of another body or disable itself from exercising a discretion in each
individual case. In the purported exercise of its discretion, it must not do what it
has been forbidden to do, nor must it do what it has not been authorized to do. It
must act in good faith, must have regard to all relevant considerations and must not
be influenced away by immaterial consideration, must not ask for purposes, alien
to the letter and spirit of the legislation that gives it power to act, and must not act
illogically and randomly.