UNIVERSITY OF PETROLEUM & ENERGY STUDIES

COLLEGE OF LEGAL STUDIES

B.A. LL.B. (HONES.), ENERGY LAWS

SEMESTER - V

ACADEMIC YEAR: 2017-18 SESSIONS: AUG-DEC

ASSIGNMENT
FOR
ADMINISTRATIVE LAW
NAME: ROHAN PATHAK
SAP NO: 500044988
ROLL NO : 81
 Administrative Discretion

The exercise of professional expertise and judgment, as opposed to strict adherence to regulations or
statutes, in making adecision or performing official acts or duties.1

Administrative discretion is need and inclusive growth is the purpose. It must be the slogan and aim of
every country. Administrative discretion can become curse for the country if it transform in
arbitrariness. Administrative discretion is useless if it unsuccessful to get the inclusive growth. Mostly
countries had adopted the concept of welfare state. To fulfill this purpose administration had required
for some discretion. Administrative discretion is a means to get the aim of welfare state. India also had
adopted the welfare concept. So the power of administrative discretion had also conferred for
administrative officers. Administrative discretion was given to get the inclusive growth. I want to say
through my paper that administrative discretion and inclusive growth both are going to parallel in India.
There are many problems in sits way i.e. corruption, misbehavior, negligence and arbitrariness.
Professor Dicey thought that administrative discretion is against Equality, and it becomes the cause of
arbitrariness, discrimination and unjust so the purpose of inclusive growth may be fail.

Most of countries in the world have adopted social welfare concept after removing the concept of
laissez faire concept. With this effect lot of discretion conferred for the administration. State made lot of
laws to get the aim of the social welfare, under those laws lot of discretionary powers were given to
administrative authorities. And provide most of opportunities to perform their duties. Many time
administrations feel specific knowledge and instant decision power to perform their duty. So it is
necessary that the right to take instant decision must be conferred to administrative authorities. After
this they can do their work according to circumstances and they can take decisions also. In the real
meaning all discretionary powers are given with this intention, no law can be absolute. Nature is
dynamic so circumstances also changeable. Law cannot change easily as circumstances. Therefore law
cannot control this dynamic society. Whenever these administrative problems will rise, Legislative said
that they do not know when and how it will rise. Legislative is unable to provide any help against this

1
ADMINISTRATIVE DISCRETION, W EST'S ENCYCLOPEDIA OF AMERICAN LAW, EDITION 2. 2008. THE GALE GROUP
29 MAY. 2018 https://legal-dictionary.thefreedictionary.com/Administrative+Discretion
critical situation, but administration can solve this problem for this purpose legislative conferred the
power of discretion. We cannot fulfill the aim of social welfare state without discretionary powers of
administrative authorities. Inclusive growth and discretion both are mandatory for every country. India
is also following this concept. We had provided maximum discretion to administrative authorities when
they will perform their duty in respect of inclusive growth. Discretion can convert in to arbitrariness so
we had imposed a lot of restriction on them. Whenever they will use these powers they will follow those
rules also. They will perform their duty within the limits which was imposed by the legislative body.
When legislative conferred these powers to administrative authorities they have to maintain the
provision to control them also. There are two types of control (Judicial and None Judicial) over the
administrative authorities. All acts of administrative authorities will come under the power of judicial
review. Court can check all administrative works on the certain grounds. Court has also a limited power
to control administrative actions. When any matter rise, which cannot be checked by the court it can be
checked by the administrative authorities 2

Discretion is the all-pervading phenomenon of modern age. Discretion is conferred in the area of rule-
making or delegated legislation, e.g. when the statutory formula says that the government may make
rules which it thinks expedient to carry out the purposes of the Act, in effect, abroad discretion and
choice are being conferred on the government to make rules. The legislature hardly 80 gives any
guidance as to what rules are to be made. Similarly, discretion is conferred on adjudicatory, and
administrative authorities on, a liberal basis, that is, the power is given to apply a vague statutory
standard from case to case. But this development is disquieting because, according to a well known
adage, “absolute power corrupts absolutely”, and therefore, broad powers present possibilities of being
misused and exercised in an arbitrary manner. The broader the discretion, the greater the chance of its
abuse. In the words of Justice Douglas of the U.S. Supreme Court. “Where discretion is absolute, man
has always suffered... Absolute discretion... is more destructive of freedom than any of man’s other
inventions” and also “Absolute discretion like corruption, marks the beginning of the end of liberty.” It
thus becomes necessary to devise ways and means to minimise the danger of absolute discretion, so
that injustice is not done to any single individual. It is not possible for this purpose to depend merely on
the good sense of administration itself to use its power properly, for broad power always breeds the
danger that will wielder will get power drink. Courts have to play a major role in the process of

2
ADMINISTRATIVE DISCRETION AND INCLUSIVE GROWTH IN INDIAN PERSPECTIVE;
ACHIEVEMENTS & CHALLENGES, RAJESH KUMAR, AVAILABLE AT
http://www.srjis.com/pages/pdfFiles/146857561110.%20RAJESH%20KUMAR.pdf
controlling the functioning of the administration. In this connection the fundamental rights guaranteed
by the Indian Constitution play a significant role. The judicial control mechanism of administrative
discretion is exercised at two stages. First at the stage of delegation of discretion. At this stage, the court
may compel the legislature to desist from conferring too broad or uncabined discretionary powers. In
India, the courts have sought to spell out some limits on conferment of broad discretionary powers by
invoking the Fundamental Rights guaranteed by the constitution. The courts may declare a statute
unconstitutional if it seeks to confer too large a discretion on the administration. Fundamental Rights in
India thus afford a basis to the courts to control the bestowal of discretion to some extent, by testing
the validity of the law in question on the touchstone of Fundamental Rights. This may involve some
substantive and procedural safeguards in the exercise of the powers. The courts may imply some
substantive limits on the power. They may imply some procedural safeguards i.e. an adjudicatory body
being required to follow natural justice. In other cases the relevant law may lay down some procedural
norms. Second at the stage of the exercise of discretion. There is the need to have some post-decisional
review mechanism to ensure that administrative authorities discharge their functions according to law
and within legal limits express or implied. To some extent, this important role is discharged by the
courts. The courts control the exercise of discretion by the administration and for this purpose have
evolved several norms. This aspect is discussed in another chapter in this study under judicial control of
Administrative Discretion.Today, the question of control of discretionary power is perhaps most crucial
and Critical problem of the modern administrative law3.

Types of Administrative Discretion

 Individualizing decisions: The authority to make individualizing decisions in the application of

general rules.
 Executing decisions: Freedom to fill gaps in delegate authority in order to execute assigned
administrative functions.
 Policymaking decision: Power to take action to further societal goals.
 Unbridled discretion: If no review is permitted, the agency is exercising this discretion.
 Numinous discretion: If the decision cannot by its very nature be reviewed, the agency is said to
be exercising this discretion.4

3
HTTP://SHODHGANGA.INFLIBNET.AC.IN/BITSTREAM/10603/132460/10/10_CHAPTER%203.PDF
4
HTTPS://WWW.LAWNOTES.IN/ADMINISTRATIVE_DISCRETION
Meaning and Definition of Administrative Discretion

The word administrative discretion denotes two words administrative and discretion. It means
discretion which is used by administration in their functions. Firstly we will discuss on discretion than we
will point out on the administrative discretion. Discretion means decision power. In other words the
power to do something according their mind and wisdom. Every person has discretion regarding their
property he can donate, transfer and sale. It is his discretion if wants that his property should go for his
heredities he can write a will. If he do not want to give his property to his heredities he can sale it. No
one can interfere in his discretion. Individual discretion is different with administrative discretion. In
individual discretion there is no any restriction. But administrative discretion means they have discretion
within the given options.

They are not free to take the decision as an individual; they can take decision only within the limits
which is provided by legislative. Even court also exercises the power of discretion, when they punish to
someone. Discretion means choose an option from the given options on the basis of reason and
argument it must not be based on individual will. Lord Cock “discretion is a science to understand the
difference between truth - untruth, right – wrong and reasonable & unreasonable.” They must not do
their work under the influence of personal interest and to fulfill own will Mr. Justice Frankfurter said,
Discretion without a criterion of its exercise is authorization of arbitrariness. It means discretion is
choosing one option from amongst alternatives. These alternatives must be based on reasons and
justice not according to personal will. This exercise must not be capricious, blurred and bizarre; it must
be legal and regular.5

Reasons behind the Development of Discretionary Powers

There are many reasons behind the development of the power of administrative discretion.
Some reasons are given blow:
1. In present time administration face difficult and different- different problems which can not
solved by a single rule.
2. Most of those problems are new and rise first time, so a general rule can not apply against
those problems because they don’t have sufficient experience.

5
ADMINISTRATIVE DISCRETION AND INCLUSIVE GROWTH IN INDIAN PERSPECTIVE;
ACHIEVEMENTS & CHALLENGES, RAJESH KUMAR, AVAILABLE AT
http://www.srjis.com/pages/pdfFiles/146857561110.%20RAJESH%20KUMAR.pdf
 3. It is not possible always anticipate to all problems, but when these problems rise and cannot
be solved according to circumstances than administrative authorities must be solved it.
4. Every problem is based on a different circumstance, if we will apply a rule to all it can be
cause of injustice.

Administrative Discretion in Indian System

India has also adopted the concept of welfare state so it was necessary conferred the discretionary
powers to administration because it was only one body which can do all works to get the aim of welfare
concept. After adopting this concept government participated and interfered in all work which was done
by public. Now state thinks about the development of both public and state. Before it state was think
about only state and do the ministerial functions. It did not have any interest public matters. Now the
state starts to think about public and their facilities, so state imposed the burden of all responsibilities
on the administration. But without discretionary power it was not possible. Administrative officers felt
the need the power to take instant decision. Without it they are unable to do something. So state
conferred discretionary powers to them. No modern government, however, can function without the
grant of discretionary power to administrative authorities. Whether or not an action is required depends
upon the happening of certain events or the arising of certain situations that cannot be anticipated.
They have to be determined from time to time and the administrator has to respond by using the power
given to her. What is to be done if a riot breaks out? What is to be done if an essential commodity
becomes scarce and suddenly goes out of market? Some actions depend upon an assessment of the
situation by administrative authorities. Expressions such as if he is of the opinion or if he is satisfied or if
he has reasonable grounds to believe vest power in the authority to act on framing an opinion or being
satisfied that the action is necessary. All such actions are discretionary. Supreme Court had held that in
the respect of discretionary power given under statute to administration. It is expected that the use of
discretionary powers would be based on fair, Just and reasonableness, it must not be based on
individual interest or will. It must not be doubtful, arbitrary and imaginary. It must be under within the
limits, which is expected with a genuine person.6

6
ADMINISTRATIVE DISCRETION AND INCLUSIVE GROWTH IN INDIAN PERSPECTIVE;
ACHIEVEMENTS & CHALLENGES, RAJESH KUMAR, AVAILABLE AT
http://www.srjis.com/pages/pdfFiles/146857561110.%20RAJESH%20KUMAR.pdf
As mordernisation and development was on its peak in late 90’s, decentralization of powers was
considered as a progressive step towards a better and smother function of the nation. Which will not
only decreases the burden of work from the central administration, but will also be helpful, needy and
approachable for the common people as well, and hence descentralisations of powers took place. Which
gave the local bodies and state government powers to function on their discretion under their
jurisdiction.

Decentralisation (devolution)1 offers significant opportunities to improve government accountability. It

creates the possibility of exerting stronger pressures on government performance both from below (the
demand side) and from above (the supply side). Decentralisation reshapes power relations among the
local residents, local governments, producers of local government services, and higher levels of
government (including central government). It sets new rules of the political game, helping new local
leaders to emerge in the political competition. It thus redefines the interactions between local leaders
and their constituencies. Similarly, as a result of new regulatory and financial powers over procurement
and service delivery, the decisions and actions of local governments have a greater impact on local
economies. Decentralization thus leads to new interactions and contractual relationships between local
governments, between small and big private firms, and between providers and producers of services,
and communities and nongovernmental organizations. Despite decentralisation’s promise for more
accountable government, results have been mixed at best. The literature on decentralisation contains
many examples where decentralization has not led to greater accountability. Part of the reason (and the
starting point of this paper) is that decentralisation reforms have often been introduced without
thinking through their accountability implications. Even when accountability is taken into account, the
efforts tend to emphasize either the supply or the demand side of the accountability equation, but not
both. Building appropriate local governance structures requires bridging the supply and demand side so
that local governments can be downwardly accountable to citizens. A precondition for downward
accountability is to simultaneously empower local governments and citizens. That requires setting
priorities and sequencing decentralisation reforms to strengthen accountability on both the supply and
demand sides. In our framework, representative local governments are the basic institutional elements
of decentralization, accountable to higher levels of government and to citizens as allowed by their
discretionary space. The framework includes an ideal decentralisation scenario with a high degree of
local discretion and accountability. But countries are at different stages of decentralisation, with varying
progress in both discretion and accountability.
The history of decentralisation in India is somewhat chequered. Although the village panchayats as
institutions of governance and justice existed for a long time, the founding fathers of the Constitution
were not keen to empower them. Dr. Ambedkar was apprehensive that in the hierarchical society with
highly skewed nature of asset and power distribution, vesting more powers at the village level would
only perpetuate exploitation of the dispossessed. Not surprisingly, the Constitution placed local
governance in the State List (Entry 5). Thus, administrative, political and fiscal decentralisation was
entirely left to the discretion of the State governments. Rajiv Gandhi wanted to energise the local bodies
in rural and urban areas to make them the institutions of self-government by effecting 73rd and 74th
Constitutional amendments. Part IX was inserted into the Constitution with Article 243 (A to O)
specifying matters such as the constitution, elections and the functions to be devolved for panchayats
under Article 243 and for urban local bodies under Article 243 P to ZG. Schedules 11 and 12 were
inserted into the Constitution detailing the indicative list of functions to be devolved to panchayats and
municipalities by the State government. Article 243 I and Y mandated the appointment of the State
Finance Commission by the Governor every five years to balance their functions with funds. Article 280
was seeded with an additional term of reference (TOR) to the Union Finance Commission to take
cognisance of the resource requirements of local bodies. However, the role envisaged in this seeding is
only tangential or supplemental.

There are four important issues for understanding the legal framework for the decentralisation
process in the country.

1. The Constitution assigns decentralisation including funding entirely to the discretion of State
governments. It does not clearly assign the functions or sources of finance, but leaves it entirely
to the discretion of the States. While this may be to evolve the system of decentralisation
appropriate to a State considering the strength of its history, economy and capacity, it also
hinders the process. Article 243 (G and W) relating to the powers, authority and responsibilities
to rural and urban local bodies merely specifies that the State government may, by law, endow
the panchayats and municipalities with powers and authority to enable them as institutions of
self-government and such law may contain provisions for the devolution of powers and
responsibilities upon these bodies subject to such conditions as may be specified therein, with
respect to the preparation of economic development and social justice, performance of
functions and implementation of schemes entrusted to them including those specified in the
 12th Schedule”..It is entirely left to the States to decide, what and how much powers and
functions should be devolved to the local bodies.
2. The constitutional framework does not (and perhaps should not) prescribe any pattern,
standard or model of decentralisation which again is left to the discretion of State governments.
3. There are no easy mechanisms to ensure compliance of even the prescribed provisions of the
Constitution by the States. Most States have not complied with the requirement of having to
appoint gram sabhas (243 A), ward committees (243 sabhas) district planning committees and
metropolitan planning committees. There have been several attempts to postpone elections
though they are required to hold them well before the expiry of the prevailing elected body or
before six months if the body is dissolved for some reason, as required under 243 K and U. The
States are required to appoint a Finance Commissions every five years and their reports are
required to be placed in the legislatures with the action taken reports. Unfortunately, the States’
record in this regard has been pathetic. Their record of appointing the State Finance
Commissions and actions on their reports shows complete violations of Article 243 I and Y. The
State legislatures are required to make laws to ensure maintenance of accounts and auditing of
such accounts by panchayats and municipalities. The record of experience is that these
provisions have been observed in their violation rather than compliance in most of the States.
4. On the financial side, local bodies do not have any independent revenues. There is no separate
list of tax bases assigned to them in the Constitution and they have to depend on the State
governments to levy the taxes that the States choose to devolve. There is also the problem of
administrative capacity and interest groups resisting payment of taxes and user charges. Unlike
in theory which states that the Wicksellian link is stronger at the local level as the people can the
relate the tax payments to services rendered, in actual practice, free-rider behaviour permeates
and influential groups would somehow like to pass the burden of financing services to the non-
residents.7
Controls over the Administrative Discretion
It has universally admitted that discretionary powers have become the need of the day. Now a
question is raised that how it can be control. Because it can be violate of fundamental rights of
public. It can be control with two types first judicial and other one is none judicial. Two
procedure can be make against administration departmental (administrative) and judicial if they

7
M. GOVINDA RAO IS AN EMERITUS PROFESSOR,OF THE NATIONAL INSTITUTE OF PUBLIC FINANCE AND POLICY AND WAS A MEMBER OF
THE FOURTEENTH FINANCE COMMISSION AVAILABLE AT HTTP://WWW.THEHINDU.COM/OPINION/OP-ED/DEMOCRACY-STRENGTHENED-
BY-DECENTRALISATION/ARTICLE7830185.ECE
 violated fundamental rights and misused their discretion. There are so many ways to control it.
We must incorporate such rules which will be mandatory to that authority who will exercise
discretion. Discretion must be limited and systematic. If legislative is failed to maintain such
norms in that statute to control discretion, those norms must be incorporated by administration
with the help of delegated legislation. It must be control in proper way. It can be control with
judicial and other authorities, e.i. C.B.I., C.V.C. and Lokpal. Judicial control is more effective.
Judicial control can protect to citizens from arbitrariness and exploitation. Now lots of principles
have been developed to control discretion by the court. Judiciary must concentrate on two
points first it should be direct to legislative that they do not confer wide and unlimited
discretion to executive. And other is that every discretionary act must be come under the power
of judicial review. It can be determined that every administrative authority did their work
according to law and within the limits of their jurisdiction. Judiciary plays a good role to control
it.

No any discretion can be absolute. There are some restrictions on it, and some of those are given
blow.

1. Discretion must be used by respective authority which was authorized for it, and with similar
motive.
2. Delegates cannot delegate his powers to other person it means sub delegation is
unconstitutional. When it is not mentioned in parent act. Unless it is mentioned in that act,
under which these powers are provide.
3. Any authorized person cannot be made incompetent himself with the use of permanent rules.
It means no one can be waived their liabilities.
4. It must be used for the public welfare. It must not ultra- vires. If any procedure is given, it must
be followed. If procedure is not mentioned then a reasonable process must be follow. If
administrative authorities are failed, court can declare unconstitutional their work.
5. When it will exercise officer must be used his mind, he should not behave like a machine.
6. Discretion must be used in the respect of relevant considerations.
 7. Discretion must be revoked on the ground of mala-fide intention. Court may check
administrative authorities on above grounds. It means discretion has not finality. It can be
controlled by court.8

8
ADMINISTRATIVE DISCRETION AND INCLUSIVE GROWTH IN INDIAN PERSPECTIVE;
ACHIEVEMENTS & CHALLENGES, RAJESH KUMAR, AVAILABLE AT
http://www.srjis.com/pages/pdfFiles/146857561110.%20RAJESH%20KUMAR.pdf