ADMINISTRATIVE DISCRETION- CONCEPT
According to COKE-Discretion is a science of understanding to discern between falsity and truth, between right and wrong, and not to do according to will not private affection. This power should be exercised independently by the authorities concerned according to their own assessment.
It should be noted that a statute conferring discretion usually uses the words ‘adequate’, ‘advisable’, ‘appropriate’, ‘beneficial’, ‘competent’, ‘convenient’, ‘expedient’, ‘equitable’, ‘far’, ‘reasonable’, ‘prejudicial’, to safety an ‘security’, ‘detrimental’, ‘necessary’, ‘wholesome’, ‘public purpose’, etc. or other opposite. All these words involve matter of degree.
Again an administrative discretion must not be arbitrary or vague but legal and regular. In England even the refusal of exercising discretionary power, where it imposes a duty to exercise it, gives rise a liability to damages. But in India, there is no such law. But no doubt, an authority may be compelled in India to exercise his discretion where he has been expressly with such power, through courts.
Discretion in layman’s language means choosing from amongst the various available alternatives without reference to any predetermined criterion, no matter how fanciful that choice may be. But the term ‘Discretion’ when qualified by the word ‘administrative’ has somewhat different overtones. ‘Discretion’ in this sense means choosing from amongst the various available alternatives but with reference to the rules of reason and justice and not according to personal whims. Such exercise is not to be arbitrary, vague and fanciful, but legal and regular.
The problem of administrative discretion is complex. It is true that in any intensive form of government, the government cannot function without the exercise of some discretion by the officials. But it is equally true that absolute discretion is a ruthless master. Discretionary power by itself is not pure evil but gives much room for misuse. Therefore, remedy lies in tightening the procedure and not in abolishing the power itself.
There is no set pattern of conferring discretion on an administrative officer. Modern drafting technique uses the words ‘adequate’, ‘advisable’, ‘appropriate’, ‘beneficial’, ‘reputable’, ‘safe’, ‘sufficient’, ‘wholesome’, ‘deem fit’, ‘prejudicial to safety and security’, ‘satisfaction’, belief’, ‘efficient’, ‘public purpose’, etc. or their opposites. It is true that with the exercise of discretion on a case-to-case basis, these vague generalizations are reduced into more specific moulds, yet the margin of oscillation is never eliminated. Therefore, the need for judicial correction of unreasonable exercise of administrative discretion cannot be overemphasized.
GROUNDS TO CHALLENGE ADMINISTRATIVE DISCRETION
Grounds to challenge administrative discretion
- Improper purpose
- Irrelevant consideration
- Lack of procedural expectation
- Arbitrary use of discretionary power