Introduction:
Discretionary power refers to the ability to act or not act in a specific way. The ability to determine or behave according to one’s own judgment is known as discretion. Discretionary powers must be exercised in a variety of ways by administrative bodies. For example, whether a statute designed to nationalize road routes is fair and equitable, or if a disagreement can be brought before the Industrial Tribunal Act. They must also determine whether a person’s or organization’s actions are likely to be in violation of the law, or whether a person poses a threat to the state’s security. Administrative discretion issues are complicated. True, in any intensive type of government, officials must exercise some discretion in order for the government to work. Absolute discretion, on the other hand, is a ruthless master. It is the most harmful creation of man in terms of freedom. It could be deduced that the use of discretionary authority by administrative authorities is critical for the performance of their duties, but this discretionary power should not be exercised in an unguided and uncontrolled manner.
Historical Background
From the start, administrative discretion has been a major issue. It has been demonstrated that a welfare state cannot function without the discretionary powers of administrative authorities. It is not required solely to improve administrative discretionary powers. However, it is required because no one can predict the future, so any law enacted today may not be applicable in the future. However, it is also true that strict secrecy can lead to a cruel owner. According to Lord Aitkin, “under English jurisprudence, no member of the executive may interfere with the property and liberty of others without first expressing the legality of his act before the court[1].” Discretionary power refers to the ability to act or not act, or to act in one way or another. When the word “may” is used by legislation before explaining administrative powers, it means the power to decide or act according to one’s judgment. It’s possible that the word denotes the ability to exercise discretion. In other words, we can say that authority is free. Professor Dicey opined that discretion is the source of inequity, discrimination, and arbitrary action.
The development of administrative discretionary power can be attributed to a variety of factors. Some of the reasons are as follows:
- Today’s administration faces difficult and diverse problems that cannot be solved by a single rule.
- Because most of those problems are new and arise for the first time, a general rule cannot be applied to them because they lack experience.
- While it is impossible to anticipate all problems, when they arise and cannot be resolved due to circumstances, administrative authorities must intervene.
- Because each problem arises from a unique set of circumstances, applying a single rule to all of them may result in injustice.
Abuse of Discretionary Powers and Administrative Morality
India has adopted the welfare state concept, it was necessary to give the administration discretionary powers because it was the only body capable of carrying out all of the tasks necessary to achieve the welfare concept’s goals. Following the adoption of this concept, the government became involved in and interfered with all public work. Now, the state considers both public and private development. Previously, the state was only concerned with the state and carried out ministerial duties. It was uninterested in public affairs. Now that the state is thinking about the public and their needs, it has placed all of the responsibilities on the administration. It was not possible, however, without discretionary power. Administrative officers felt compelled to have the ability to make quick decisions. They won’t be able to do anything unless they have it. As a result, the state granted them discretionary powers. However, no modern government can function without administrative authorities being given discretionary powers.
The need for action is determined by the occurrence of certain events or the emergence of certain situations that cannot be predicted. They must be determined regularly, and the administrator must respond by exercising the authority granted to her. What should be done if a riot occurs? What should be done if an essential commodity becomes scarce and goes off the market unexpectedly? Some actions are contingent on administrative authorities assessing the situation. If he is of the opinion, if he is satisfied, or if he has reasonable grounds to believe, the authority has the power to act based on forming an opinion or being satisfied that the action is required. All of these actions are optional.[2] The Supreme Court had ruled in favor of the administration’s discretionary power granted by statute. The use of discretionary powers is expected to be based on fairness, justice, and reasonableness, not on personal interests or desires. It must not be ambiguous, arbitrary, or fictitious. It must be within reasonable bounds, as one would expect from a genuine person.[3]
Abuse of right is defined as an action that is considered unethical not only from a legal but also from a moral standpoint. The traditional approach to the concept of abuse of discretionary powers involves subjective evaluation criteria referring to an official’s mental states, such as bad faith or personal motives. The concept of “administrative morality” altered the significance of the criteria used to evaluate administration activities. It’s difficult to think about such concepts in terms of pure legal compliance categories. Administrative morality, on the other hand, refers to administrative deontology and the reasonableness of bodily activities. When a public official abuses his powers for personal gain or for reasons that are not in the public interest, he is abusing the powers entrusted to him. Such behavior is not only morally repulsive, but it also has legal ramifications. As a result, the administrative court’s negative assessment of the official’s action must be reflected in its decision, which should repeal an act that violates the requirements of “administrative morality”[4]. Similar elements can be found in classic English administrative law, where “bad faith” is a traditional basis for repealing an act due to abuse of discretionary powers. In the strictest sense, this includes cases of deliberate abuse of discretion, as opposed to situations in which the body abuses discretion due to ignorance or misunderstanding of the legislature’s intent. A deed must be intentionally dishonest in order to be classified as bad faith. Intentional damage, fraudulent manipulation, dishonesty, malice, and other deliberate infringements fall under this category[5]. Cases of deliberate favoritism or dismissal of applicant claims due to personal liking or antipathy are common signs of bad faith. There are also negative activities that are motivated by a desire for vengeance.
Indian Approach to Abuse of Discretion
Indian Law has delineated a myriad of ways in which administrative discretion can be accosted. One such way is regarding a discretionary act as mala fide.
Mala Fides
Mala fides refers to something done in bad faith, with a fraudulent motive and dishonest intent. It had been interpreted both broadly and narrowly in Indian law. Previously, it was thought that there was no element of moral turpitude involved in mala fide action and that all that was required was a departure from the spirit of the statute and acting in a manner that was contrary to its intent. Mala fide can be interpreted in a broader sense, referring to bad faith, dishonesty, and corrupt motive. Personal animosity and vindictiveness are to blame. Mala fide should not be confused with bias, which is a broader concept that is commonly applied to administrative issues. As opposed to mala fide, there is no element of turpitude attached to it. Furthermore, mala fide differs from the concept of ultra vires in that the latter prohibits the decision-making process itself. While decision-making in bad faith is permitted, the nature of the decision can be challenged because it was made in bad faith. Malice can be based on fact or law. Personal animosity is allowed in the former, whereas action is taken without a just or reasonable reason in the latter. The courts must examine the manner of decision-making and the circumstances in which it is made to determine whether an action is mala fide.
The best example of administrative action being checked based on it being mala fide is G. Sadanandan v. State of Kerela.[6] On the grounds of operating without a license and illegally dealing in kerosene, the DSP (Civil Supplies Cell) issued a detention order against a kerosene dealer. Because the DSP’s brother was a competitor in the same business, it was claimed that the DSP was acting malafidely in order to drive theappellant out of thetrade. The DSP did not even file a counter-affidavit in court to refute the Appellant’s allegations of mala fide action. The action was quashed by the court due to these considerations.
Improper Purpose
In order to reach a specific decision, a statute may grant discretionary powers to an administrative authority. This discretion, however, is limited to the purpose for which the statute was enacted as well as the ultimate goal it seeks to achieve. Where no explicit goal is stated, the courts can construe a purpose from the statute’s provisions. The number of activities that fall under administrative action has increased dramatically in recent years. Some authorities have been given discretion in their operations, which has broadened their scope. Courts can, however, limit this seemingly limitless power by examining the statute’s original intent in vesting the discretionary power. An administrative action’s motivation should be consistent with the statutory goal.
There is no underlying element of malice, caprice, or animosity in this check, unlike in mala fides. This was clarified in S.R. Venkatraman v. Union of India[7], where a public servant could be retired in the public interest by obtaining the President’s assent under a statute. In the present case, the Appellant was forced to retire when she turned 50 years old. She claimed there was a lack of application of mind and that her retirement was carried out for reasons unrelated to the statute. This was proven by the fact that nothing in her service record justified her premature retirement. The court went on to say that the element of good faith or bad faith is irrelevant in a situation where discretionary power is used for any unauthorized purpose.
Irrelevant/Relevant Considerations
It is self-evident that discretion allows power to choose between competing options. This discretion, however, can only be exercised on pertinent grounds. All discretionary actions must be guided by the factors outlined in the statute that granted discretion in the first place. The administrative action will be void if it is based on fictitious grounds. In this regard, the court has some discretion in reviewing administrative action. The court can check for conformance when considerations are laid out in the statute. If no considerations are specified, the court can look to the statute’s purposes and goals to determine what should be considered and how much discretion should be allowed. Depending on the language of the statute, these considerations may be exhaustive. In the event that they aren’t, the court can add its own.
In Barium Chemicals Ltd. v. Company Law Board[8], this was established authoritatively. The CLB can order investigations into a company’s affairs under Section 236 of the Companies Act if the company is being run with the intent to defraud creditors, or if the company’s management is guilty of fraud, among other things, or if full information about the company has not been provided. In this case, an investigation was ordered after it was discovered that there had been ongoing losses due to poor planning and that several directors had resigned from the board. The court overturned the order, claiming that the grounds were irrelevant and unrelated to the statute’s stated purpose. They disobeyed S.236’s directive.
No Material
All discretionary actions must be based on reliable information and facts. Even when authorities have discretion, there should be an application of mind. This is because making a decision based on flimsy grounds is an abuse of the power of discretion. It reeks of arbitrary decision-making and abuse of administrative authority. This was demonstrated in the case of Raala Corp. v. Director of Enforcement[9], which concerned the Directorate of Enforcement’s discretion to refer cases to the Supreme Court when the punishment to be imposed was deemed to be beyond his authority. This discretion was to be exercised only if there was enough evidence. In this case, however, the reference was made without holding a hearing or reading any information. As a result, the order was overturned by the Supreme Court.
Misdirection of Law and Fact
An authority may act outside the scope of its legal authority on occasion. It may make such errors as a result of a misunderstanding of the law or a fact, and thus go beyond the scope of the authority granted to it. If a mistake is made regarding the constraints imposed by law, the exercise of discretion is tainted.
M.A. Rasheed v. State of Kerala[10] is a case that demonstrates this. The state government issued a notice restricting industrial coir consumption in favor of the traditional sector. The reasonableness of this exercise of discretion was questioned. The court determined that, because discretion allowed for subjective satisfaction, the court could not simply follow the authority’s decision based on facts and law. It was possible to appeal based on whether the authority had correctly construed these elements.
Proportionality
To keep an eye on the use of administrative discretion, judicial controls have been put in place. This ensures that authorities do not have unrestricted power to make arbitrary decisions. Another such tool is the rule of proportionality, which ensures that the goal is to be achieved and the means used to achieve it are linked. In departmental hearings, where the punishment meted out to employees is grossly out of proportion to the wrong committed, this rule is applied. Proportionality tests have evolved in England to be under the control of Strict Scrutiny in order to protect citizens’ rights and freedoms from infringement.
This tool was used in the case of Ranjit Thakur v. Union of India[11], in which an army official was court-martialed for committing a minor indiscretion. He appealed the order to the Supreme Court, which overturned it, citing the rule of proportionality, which requires that the punishment meted out has a connection to the act committed and is proportional to it. The court justified its intervention by claiming that the decision in question was excessively harsh. Om Kumar v. Union of India[12] softened this stance by holding that the court can use both tools, the Wednesbury Principle and the Proportionality Rule. The court took notice of a report claiming that the DDA had given certain land to M/s Skipper Ltd. prior to the auction. The report established the wrongdoing of four IAS officers, who were recommended for punishment. The punishment meted out, however, was disproportionate to the scale of the offense, and it was believed that harsher action could have been taken. The court made a distinction between the two tools. The Wednesbury principles could be used to check discretionary powers in cases where orders were challenged based on arbitrariness, as under A.14. If the order violated fundamental freedoms or was discriminatory, the rule of proportionality had to be applied to determine whether the infringement was justified in light of the crime committed. In such a case, the court could use a primary review to overturn the administrative authority’s decision and replace it with its own. This would be a one-of-a-kind situation.
Conclusion
As we progress further into the twenty-first century, the range of activities subject to administrative control continues to expand. Administrative authorities are being given more and more discretion to make decisions without interference from other bodies. It has the authority to choose between alternative strategies based on its best judgment. Despite this apparent broad discretion, Indian courts have followed the lead of English courts in limiting this discretionary power by ensuring that it is limited by statute, is fair, just, and based on relevant grounds and good faith. In a variety of cases, the courts have made it clear that even when discretion is granted, abuse by authorities does not go unpunished. Abuse of Discretionary Power can take many forms, including acting on false grounds, ignoring relevant considerations while acting on irrelevant ones, making decisions without sufficient evidence, and misinterpreting the authority granted by law. Even though the courts have established that interference in these decisions is permissible under certain circumstances, it still respects the authorities’ decision-making process. The only constraint that courts impose is that the decision must be made in a fair manner. Finally, the court has developed a number of discretionary action controls. To begin with, it ensures that the authority’s action is not irrational and manifestly unreasonable, such that no reasonable person could arrive at the same conclusion. It ensures that the authority operates within the bounds of the law and works to make the most effective and just decision possible, based on sound and irrefutable evidence. Second, the English rule of proportionality has been used by the courts to ensure that the government’s response to individual actions is proportional and not grossly unjust. The balance maintained in Indian jurisprudence can be seen in the freedom given to administrative authorities to make decisions based on their best judgment, which is countered by the overarching judicial control. This balance is crucial: on one hand, there is unbridled power; on the other, there is judicial supremacy. The best place to be is probably in the middle.
References:
[1] Ashugveyi v. Government of Naiziriya,(1931) L.R.670(C.A.)s
[2] “Administrative Law” by S. P. Sathe, Seventh Edition, Page no. 386
[3] U. P. S. R. T. C. v. Mohd. Ismail, SCC 1991
[4] DUBOUIS, op. cit., pp. 192–193
[5] CRAIG, 2012, op. cit., p. 576; BRINKTRINE, op. cit., pp. 399–400; WOOLF, JOWELL, Le SUEUR, op. cit., pp. 266–267; WADE, FORSYTH, op. cit., p. 416.
[6] Writ Petition No. 136 of 1965.
[7] S.R. Venkatraman v. Union of India 1979 AIR 49.
[8] Barium Chemicals Ltd. v. Company Law Board 1966 SCR 311.
[9] Raala Corp. v. Director of Enforcement 1970 SCR (1) 639.
[10] M.A. Rasheed v. State of Kerala 1974 SCR (2) 96.
[11] Ranjit Thakur v. Union of India 1988 SCR (1) 512.
[12] Special Leave Petition (civil) 21000 of 1993.
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