What is administrative Discretion?
Administrative discretion is an informal unilateral practice and is therefore unprotected by the protections inherent in structured procedure. Discretion in simple words means choosing among the different alternatives available without respect to any predetermined criterion, irrespective of how fanciful that choice may be. The administrative discretionary issue is complex. Really, the government can not work in any intensive form of government without the officials exercising some discretion. It is important not only for the individualization of the administrative power but also because in the dynamic nature of modern state it is humanly impossible to lay down a guideline for every imaginable eventually. Equally true, however, is that absolute power is a merciless master. It is more destructive of liberty than any Other technology made by man.
There are three main heads under which the control over administrative discretion exercised.
1. Parliamentary Control over administrative discretion
2. Judicial Control over administrative discretion
3. Procedural and Executive Control
Parliamentary control over Administrative Discretion
There are several grounds of parliamentary control.
1. Direct General Control – The first form of parliamentary control shall be exercised at the time the enabling act is passed. This is Parliamentary hearings that are of a general and direct control sort. In India, different methods and procedures are used, such as discussions on the delegation bill, which include aspects such as requirement, scope, form of delegation and authority delegated to. In addition, any Member can.ask questions on any aspect of the delegation of legislative powers and, if disappointed, may give notice of discussion under Rule 59 of the Rules of Procedure and Conduct of Business in Lok Sabha. Budget cuts during grant voting and committee debates throughna private member’s Bill requesting changes to the parent act or through a debate at the time of the President’s speech to.the joint parliamentary session are also useful. Yet in India as well as in the UK. Those methods are seldom employed. This is due solely to a lack of tradition or experience. However, scholars think that this approach should be used widely and efficiently to nip delegation vices in the bud.
2. Direct Special Control – Prominent among these remedies is the “laying on the table” method, which demands that administrative “laws” rendered under delegated authority be submitted for approval to the legislature. Under direct control, laying is an important and necessary feature, and it is laid down in compliance with the law, which ensures that it should be put before Parliament after making the regulation. It contains three important parts to be exercised according to.the degree of control required.
- Simple Laying
- Negative Laying
- Affirmative Laying
And two key tests are “Mandatory test” & “Directory test.”
i. Mandatory testing – Where laying demand is a condition pattern to direct the rule into effect, then laying need is compulsory in such ancase. Where the clause that the rules should be drafted in a particular format is specified then it becomes mandatory to adopt the format.
ii. Directory test – If the laying prerequisite is next to enforce the rule, it will be a directory in nature.
3. Indirect control – This is a power every Parliament and its committees exercise. Subordinate legislation is another term for such form of committee. The committee’s principal job is to investigate.
- Whether rule are according to general object of the act.
- It bars the jurisdiction of the court in direct or indirect ways.
- Whether it has retrospective effect or not.
- Whether it safeguard or destroy the Principle of Natural Justice.
- Expenditure involved in it is from Consolidated fund.
In the case of Narendra Kumar v. Union of India, it was held by the Supreme Court that the provision under Section 3(5) of the Essential Commodities Act, 1955, which explains that any rules framed under the Act must be presented before both the houses of the Parliament. Therefore, clause 4 of Non – Ferrous Control Orders, 1958 has no effect until it is presented in the Parliament.
Judicial Control over Administrative Discretion
The rule of law has been applied to judicial review. The court must see that the delegated authority as defined is within the meaning of the Constitution. Judicial review is more effective as it is not recommended by the.court, but it specifically violates the ultra vires law. In accordance with section 13(3)(a) “Rule” is stated in the Indian Constitution which clearly indicates that the State should not make any law which abridge the right given in Part iii of the Constitution. It is dependent on two basic grounds:
- It is ultra vires to the Constitution of India, and
- It is ultra vires to the enabling Act.
Although Indian courts have established some successful guidelines for proper exercise of discretion, the conspectus of judicial conduct remains stagnant, varied, and residual, and lacks American courts’.activism. Administrative direct judicial review process is exercised in two grounds :
(1) Control at the stage of delegation of discretion – The court exercises control over the delegation of discretionary powers to the government by adjudicating the constitutionality of the law under which these powers are delegated in relation to the fundamental rights set out in Part III of the Constitution of India. Consequently, if the law confers undefined and broad discretion on any administrative authority, it may be considered ultra vires Article 14, Article 19 and other Constitutional provisions.
(2) Control at the stage of the exercise of discretion – In India, unlike the USA, there is no Administrative Procedure Act which provides for judicial review of administrative authority exercising. The.power of judicial review therefore derives from the statutory structure of the tribunals. Indian courts have always held the view that judge-proven discretion is a negation of the rule of law. Thus, they developed different formulations to control the exercise of administrative discretion.
In P.B. Samant v. State of Maharashtra, the court held the distribution of cement against the law and the circulars or guidelines issued by the Government on that behalf as bad. The distribution of cement was in favour of certain builders in return for the donations given by them to certain foundations of which the Chief Minister was a trustee. It was a clear case of mala fide exercise of power. The power to control the distribution of an essential commodity like cement is given to the Government with a view to ensuring its equitable distribution. When this power is used for obtaining donations for a trust, it is a clear case of abuse of power.
Procedural and Executive Control
There is no clear protocol for this until the legislature compels the executive to obey those laws or procedures. It may take a long time to follow a.particular format which will certainly negate the actual purpose of the act. Procedural regulation therefore means that certain rules are laid down under the Parent Act which must be followed whilst it is compulsory or directory to follow it or not. It includes three components:
- i. Pre publication and consultation with an expert authority,
- ii Publication of delegated legislation.
- iii Laying of rules.
It can be either Mandatory or Directory, to know, certain specified parameters are given:
- i.Scheme of the Act.
- ii.Intention of Legislature.
- iii.Language used for drafting purpose.
- iv.Inconvenience caused to the public at large scale.
And these four parameters were given in the case Raza Buland Sugar Co. vs. Rampur Municipal Council.
Author Details: Deepali Kir
The views of the author are personal only. (if any)