CHAPTER XVII DISCRETIONARY POWERS (I)

MP Jain & SN Jain: Principle of Administrative Law 7th Edition 2013

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CHAPTER XVII DISCRETIONARY POWERS (I)

1. DISCRETION
In Rooke’s case 1COKE J . said, "Notwithstanding the words of the commission give authority to the
commissioners to do according to their discretions, yet their proceedings ought to be limited and bound into the rule
of reason and law. For discretion is a science or understanding to discern between falsity and truth, between wrong
and right, between shadows and substances, between equity and colou-rable glosses and pretences, and not to do
according to their wills and private affections.

The word "discretion" connotes necessarily an act of a judicial character, and, as used with reference to discretion
exercised judicially, it implies the absence of a hard-and-fast rule, and it requires an actual exercise of judgment
and a consideration of the facts and circumstances which are necessary to make a sound, fair and just
determination, and a knowledge of the facts upon which the discretion may properly operate. [ Corpus Juris
secundum , vol. 27, page 289 as referred in Aero Traders Pvt. Ltd. v. Ravinder Kumar Suri , 2

"A discretion", said Lord WRENBURY , "does not empower a man to do what he likes merely because he is
minded to do so, he must in the exercise of his discretion do not what he likes but what he ought. In other words, he
must, by the use of his reason, ascertain and follow the course which reason dictates." 3 This approach to
construction has two consequences: the statutory discretion must be truly exercised, and when exercised it must be
exercised reasonably. (MAXWELL ). "Discretion", said Lord MANSFIELD in R. v. Wilkes , 4 ‘when applied to a
Court of Justice, means sound discretion guided by law. It must be governed by rule, not by humour, it must not be
arbitrary, vague, and fanciful, but legal and regular’ (see CRAIES on Statute Law , 6th Edn., p. 273, as referred to in
Ramji Dayawala & Sons (P) Ltd . v. Invest Import 5and Siben Kumar Mondal v. Hindusthan Petroleum Corporation
Ltd . 6

Discretion, Lord MANSFIELD stated in classic terms in, John Wilke’s case , 7 must be a sound one governed by
law and guided by rule, not by humour; Lord DENNING put it eloquently in Breen v. Amalgamated Engineering
Union , 8 that in a Government of Laws’ "there is nothing like unfettered discretion immune from judicial
reviewability." Courts stand between the executive and the subject alert, to see that discretionary power is not
exceeded or misused. Discretion is a science of understanding to discern between right or wrong, between shadow
and substance, between equity and colourable glosses and pretences and not to do according to one’s will and
private affections. Lord BRIGHTMAN elegantly observed in the case of, Chief Constable of North Sales Police v.
Evans , 9 that judicial review, as the words imply is not an appeal from a decision, but a review of the matter in
which the decision was made," as cited in Dilip Kumar Patnaik v. State of Orissa . 10 The judge, even when he is
free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of
his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield
to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by
tradition, methodized by analogy, disciplined by system, and subordinated to ‘the primodial necessity of order in the
social life’. Wide enough in all conscience is the field of discretion that remains." BENJAMIN CARDOZO in ‘The
Nature of Judicial Process’ , as cited in Valsamma Thomas v. Addl. District Magistrate Alappuzha . 11DISCRETION
is a science of understanding, to discern between falsity and truth, between wrong and right, between shadows and
substance, between equity and colourable glosses and pretences, and not to do according to men’s wills, and
private affections. Lord COKE , Rooke’s Case , (1598) 5 Rep 99b. 12 The discretion of a judge is the law of tyrants;
it is always unknown. It is different in different men. It is casual, and depends upon constitution, temper, passion. In
the best it is often time caprice, in the worst it is every vice, folly, and passion to which human nature is liable, said
LORD COMDEN L.C.J. , in Hindson and Kersey . 13
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Discretion is to know through law what is just. 14

"Discretion", when applied to a court of justice, means sound discretion guided by law. It must be governed by rule,
not by humour; it must not be arbitrary, vague and fanciful but legal and regular. 15

The word "discretion" standing single and unsupported by circumstances signifies exercise of judgment, skill or
wisdom as distinguished from folly, unthinking or haste; evidently therefore a discretion cannot be arbitrary but must
be a result of judicial thinking. The word in itself implies vigilant circumspection and care; therefore, where the
legislature concedes discretion it also imposes a heavy responsibility. 16 Though the word ‘discretion’ literally means
and denotes an uncontrolled power of disposal yet in law, the meaning given to this word appears to be a power to
decide within the limits allowed by positive rules of law as to the punishments, remedies or costs. This would mean
that even if a person has a discretion to do something the said discretion has to be exercised within the limits
allowed by the positive rules of law. The literal (legal) meaning of the word ‘discretion’ therefore, unmistakably
avoids untramelled or uncontrolled choice and more positively points out at there being a positive control of some
judicial principles. 17

"Discretion, in general, is the discernment of what is right and proper. It denotes knowledge and prudence, that
discernment which enables a person to judge critically of what is correct and proper united with caution; nice
discernment, and judgment directed by circumspection; deliberate judgment; soundness of judgment; a science or
understanding to discern between falsity and the truth, between wrong and right, between shadow and substance,
between equity and colourable glosses and pretences, and not to do according to the will and private affections of
persons. When it is said that something is to be done within the discretion of the authorities, that something is to be
done according to the rules of reason and justice, not according to private opinion; according to law and not
humour. It is to be not arbitrary, vague and fanciful, but legal and regular. And it must be exercised within the limit,
to which an honest man, competent to the discharge of his office oughtto confine himself." Sharpe v. Wakefield , 18
Per Lord HALSBURY, L.C. , as referred in National Insurance Co. Ltd. v. Keshav Bahadur , 19 and UOI v. Kuldeep
Singh . 20

The hallmark of discretionary power is permissive language using words such as ‘may’ or ‘it shall be lawful’, as
opposed to obligatory language such as ‘shall’. But this simple distinction is not always a sure guide, for there have
been many decisions in which permissive language has been construed as obligatory. 21 The word ‘may’ in Rule 4
(2) of the U.P. Disciplinary Proceedings (Administrative Tribunal) Rules, 1947 imposes an obligation upon the
Governor to refer the case to tribunal if request is made. The word ‘may’ in this case did not confer discretion only.
22Rule 44 of the Fundamental Rules confers no right on the Government servants to the grant of dearness

allowance, it imposes no duty on the State to grant it. It merely confers a power on the State to grant
compassionate allowance at its own discretion. 23

2. NATURE OF DISCRETIONARY POWERS

A significant phenomenon discernible in the present-day administrative process in modern democracies is the
conferral of large discretionary powers on the Administration to make decisions from case to case. Acquisition of
more and more discretionary powers by the Administration is a demonstrable modern trend today. Every statute
which is enacted by the Legislature confers some element of discretion on the Administration. Discretionary powers
are also conferred through Delegated Legislation. The main reason for vesting large discretionary powers in the
government and its officials is the increasing state regulation of human affairs. 24 Literally there are ten of thousand
of discretionary powers to be found in the statutes and the delegated legislation. Discretionary power may be
vested in the government, a Minister, an official or an instrumentality constituted to discharge some function of the
state. There seems to be no identifiable principle to determine who should be the donee of a discretion in a
particular situation. Perhaps, administrative expediency is the only test for the purpose. When discretion is vested in
a Minister or a high official, he has to delegate the power to some official in a lower category, because it will be
practically impossible for the Minister or the high official to take each and every decision by himself. 25 Some
discretionary powers may have far reaching consequences as they can apply to large number of people in the
community. The exercise of some discretionary powers may have profound economic consequences. The Bland
Committee in Australia describes the discretionary powers in the following words: 26

"Discretion may, as well, depend on the existence of a series of pre-conditions being established to the satisfaction of the
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person having the power. These pre-conditions may relate to readily ascertainable facts, or have elements that raise
intricate questions of law, embrace very vague considerations such as whether an applicant for a pension is of good
character and deserving of a pension or raise questions calling for extremely delicate judgments such as whether a woman
has been deserted without just cause. Entitlements to some benefits may be specifically excluded, unless the person with
the discretion thinks it would be unfair for this to happen. There are powers to admit or accept and to refuse or reject
claims; powers to grant less than the maximum or a prescribed benefit; powers to determine degrees of disablement;
powers to select beneficiaries for benefits; powers to seize and forfeit goods; powers to exempt persons from statutory
obligations; powers to remit and make rebates; powers to authorise what is otherwise explicitly prohibited by legislation;
powers whose exercise can advance or prejudice a career, a livelihood or a cherished ambition; and there are powers
whose exercise may impinge deeply on property rights, with sometimes no redress for the persons affected."

The above statement establishes the important role which discretionary powers play in the modern administrative
process. An exercise of a discretion may result in inconvenience to a person or may cause him great financial loss.
As for example, when a trading licence of an individual is cancelled by the licensing officer, the licensee has to
suspend his business and thus suffer financial loss till his licence is restored, if at all.

A discretionary power is a power exercisable in its discretion by the concerned authority. An official in whom
discretionary power is vested has, to a greater or lesser extent, a range of options at his disposal and he exercises
a measure of personal judgment in making the choice. 27 As Davis says: "A public officer has discretion whenever
the effective limits on his power leave him free to make a choice among possible courses of action or inaction."
Thus, an official in whom a discretion is vested has power to make choices between various courses of action; even
if he has to achieve a specific end he has a choice as to how that end may be reached. The essence of discretion is
choice. The concept of discretion involves a right to choose between more than one possible course of action upon
which there may be room for reasonable persons to hold differing opinions as to which option is to be preferred in a
given situation. 28

When applied to public functionaries, it (discretion) means a power or right conferred upon them by law, of acting
officially in certain circumstances according to the dictates of their own judgment and conscience, uncontrolled by
the judgment or conscience of others. 29 When it is said that something is to be done within the discretion of the
authorities, that something is to be done according to the rules of reason and justice, not according to private
opinion, according to law and not humour. It is to be not arbitrary, vague, and fanciful, but legal and regular. And
must be exercised within the limits, to which an honest man, competent to the discharge of his office ought to
confine himself. 30 The discretion is always coupled with a duty; it cannot be used to circumvent the obligation cast
under the law or contract governing the parties. 31 There is nothing like absolute discretion or unfettered discretion
and at any rate in the case of statutory powers. 32 Legal discretion which is conferred on the executive or the
judiciary is only sustainable in law if there is any indication, either through law or precedent, as to the scope of the
discretion and the manner of its exercise. 33 A discretionary power is not necessarily a discriminatory power and
that abuse of such power is not to be easily assumed. 34

The discretionary nature of the power is denoted by the use of such expressions as "necessary", "reasonable", "if it
is satisfied", "if it is of the opinion" etc . An American scholar says in this regard: 35

When we speak of administrative discretion, we mean that a determination may be reached, in part at least, upon the basis
of considerations not entirely susceptible of proof or disproof. A statute confers discretion when it refers an official for the
use of his power to beliefs, expectations, or tendencies instead of facts, or to such terms as ‘adequate’, ‘advisable’,
‘appropriate’, ‘beneficial’, ‘competent’ ‘convenient’ ‘detrimental’, ‘expedient’, ‘equitable’, ‘fair’, ‘fit’ ‘necessary’, ‘practicable’,
‘proper’, ‘reasonable’, ‘reputable’, ‘safe’, ‘sufficient’, ‘wholesome’, or their opposites. These lack the degree of certainty....
They involve matter of degree or an appeal to judgment. The discretion enlarges as the element of future probability
preponderates over that of present conditions; it contracts where in certain types of case quality tends to become
standardized, as in matters of safety: on the other hand, certain applications of the concepts of immorality, fraud, restraint
of trade, discrimination or monopoly are so controversial as to operate practically like matter of discretion.

Discretion is conferred in the area of rule-making or delegated legislation as well. For example, when a statute
authorises the government to make rules which it thinks expedient or necessary to carry out the purposes of the
Act, in effect, it confers a broad discretion on the government to decide what rules to make. The legislature hardly
gives any guidance to the government as to what sort of rules to make under a specific statute. The government
thus enjoys a wide choice as to what rules to make subject to the doctrine of ultra vires . 36 Also, through the
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doctrine of excessive delegation, 37 the courts seek to control, to some extent, the ambit of discretionary rule
making power bestowed on the government. This aspect has already been considered earlier and need no longer
detain us here. The subject-matter to discuss here is the discretionary power of the non-legislative type conferred
by law on the Administration. This includes discretion vested in adjudicatory as well as non-adjudicatory bodies.
Some reference has already been made to the norms observable by adjudicatory bodies in exercising their
discretion. More or less the same norms apply to both types of bodies in exercising their discretion. 38

In some cases, the concerned authority may have to follow some procedure while exercising its discretionary
power under some statute. For example, an adjudicatory body has to follow natural justice before making a
decision; 39 a non-adjudicatory body may have to consult some prescribed body before reaching a decision in a
specific case. 40 The point to note is that here what we are concerned with is not so much the procedure as such
but one stage removed from the procedural stage, i.e. , the stage of actual decision-making, or, in other words,
making of the final choice in a case by the Administration. For example, a licensing authority has power to cancel
the licence in its discretion on certain grounds. The licensing authority acts according to the principles of natural
justice and gives hearing to the licensee. Thereafter, it sits down to decide whether the licence is to be cancelled or
not. It is this decisional process with which we are concerned here. We are here in the realm of substantive law as
contra distinguished from procedural law. 41 Incidentally, it may be mentioned that prescribing a pre-decisional
procedure is an important control mechanism on the exercise of discretion by an authority, a point discussed later.
42

Under Recruitment Rules, the Govt. of Orissa was empowered to relax any of the provisions of the Rules in public
interest in respect of any class or category of persons. The Orissa Administrative Tribunal itself formed its opinion
and ordered a Rule to be relaxed. In SLP the Supreme Court held that the exercise of executive discretion by the
Tribunal was not proper. 43

(a) Ministerial Functions

As contrasted with the concept of discretionary power, there is the concept of ministerial power in which the law
prescribes the function to be performed by the concerned authority in somewhat definite and specific terms, leaving
no choice to it and leaving nothing to its discretion or judgment. 44 Such a function involves no investigation into
disputed facts; the law imposes a simple and definite duty on the authority concerned which acts in strict obedience
to the provisions of law and it can act only in one particular manner, in a given fact situation. A good example of
such a function is the issue of a radio or television licence. When a person fills in the required form correctly and
tenders the prescribed fee, the licence is issued automatically by the post office without exercising any discretion.
According to Keir and Lawson: 45 "Many of the acts performed by public authorities or public officers are done in
strict obedience to rules of statute or common law which impose on them a simple and definite duty in respect of
which they have no choice."

In Kavita v. State of Maharashtra , 46 it was held that the task of referring the question of detention of a person to
an advisory board under the COFEPOSA is a mechanical or ministerial act, involving no exercise of discretion,
though the government has full liberty to revoke the order of detention at that stage, or at any other stage. A minor
discretionary element may not make the function non-ministerial. In Sharif Ahmad v. R.T.A., Meerut , 47 the
Supreme Court regarded the function as ministerial. Here the Appellate Tribunal ordered the R.T.A. to grant a
permit to each of the applicants on the production of a roadworthy vehicle and an affidavit to the effect that he had
not been convicted for an offence under the Indian Penal Code during the last five years. The Court stated that—
"the minor discretionary element given to it (R.T.A.) for finding out whether the terms of the Appellate Order had
been complied with or not is not enough to deter the Courts from characterising the function as ministerial." Such
applications after the orders of the Appellate Tribunal cannot be said to remain ‘pending’ within the meaning of the
statute; what remained pending was merely a ministerial act to be performed by the R.T.A.

Section 18 (1) of the Rajasthan Land Acquisition Act, 1953, says that if a person whose land has been acquired
does not accept the compensation offered, he may by written application require the collector to refer the matter to
the court for determination. In the instant case, the collector refused to make the reference to the court. The High
Court quashing the collector’s order ruled that the collector had no discretion to refuse to refer the matter once the
conditions prescribed in S. 18 (1) were satisfied. 48 Whether a statutory provision confers a ministerial or
discretionary power is a matter of statutory interpretation. Normally, an expression that an authority ‘may’ do
something indicates a discretionary power, but, at times, the courts have interpreted such expressions as conferring
only ministerial powers.

In modern times, the range of ministerial functions is comparatively much smaller while that of discretionary
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functions much larger. Discretion in the Administration is the all pervading phenomenon of the modern age. The
statute book is replete with provisions giving discretion of one kind or the other to the government or its officials for
various purposes.

3. REASONS FOR GROWTH OF DISCRETIONARY POWERS

There are several very good reasons for conferring discretionary powers on officials. As has already been stated
earlier, 49 under the modern political philosophy of a welfare state, there has been a tremendous state regulation
over human affairs in all democracies. This philosophy has led to a great extension of government responsibility for
providing social services. Also, the government has assumed much greater responsibility for the management of
the economy. Thus, the State has enacted legislation for urban development, slum-development, planning,
economic regulation etc . Public transport, health, electricity, coal mining have all been brought under state control.
All this has necessitated conferment of broad discretionary powers on the government, its officials and
instrumentalities. It is felt that owing to the complexity of socio-economic conditions of modern life which the
Administrative Process has to contend with, a government endowed with merely ministerial powers, without having
any discretionary powers, will be far too inefficient, rigid, circumscribed, and unworkable. It will not be able to take
quick decisions at critical times, and will be ineffective to deal with the modern complex socio-politico-economic
problems of the society. Also, at times need is felt for technical or other expertise in regulating a particular activity
and it is felt that expertise will develop on a case to case basis. To achieve these objectives viz. , expedition,
flexibility and expertise in administrative decision-making, it is felt necessary that, to some extent, officials must be
allowed some choice as to when, how, and whether they will act. The officials ought to be given some choice in the
matter of deciding specific cases. The reason is that more often than not, now-a-days the Administration is called
upon to handle intricate problems involving investigation of facts, applying law to those facts, making of choices and
exercising discretion before taking an action. Besides, a few more reasons may be cited leading to the need of
conferment of discretionary powers. The present-day problems which the Administration is required to deal with are
of complex and varying nature and it is difficult to comprehend them all within the scope of general rules. Most of
the problems which arise are practically new, of the first impression. Lack of any previous experience to deal with
them does not warrant the adoption of general rules. It is not always possible to foresee each and every problem;
but when a problem arises, it must in any case be solved by the Administration in spite of the absence of specific
rules applicable to the situation. Circumstances differ from case to case so that applying one rule mechanically to all
cases may itself result in injustice. There is therefore need for individualization of the exercise of power by the
Administration and hence the need for discretion. Statutes make general provisions; subject to these provisions
specific cases have to be decided. The Administration is required to apply a vague or indefinite statutory provision
to the fact-situation of each and every individual case coming before it for decision. The circumstances and the fact
situation of two cases are not often identical. All these considerations make it inevitable to vest discretionary powers
in the officials to take care of individual cases on their merits. Accordingly, the modern trend in Administrative
Process is to vest large discretionary powers in officials which means that they enjoy large areas of choices
between alternative courses of action; they can decide whether to act, or not to act in a given factual situation, or
when to act or how to act. The legislation conferring discretionary powers does not specify clearly, definitively or
articulately the conditions and circumstances subject to which, and the standards and norms with reference to
which, the concerned official may have to exercise the powers conferred on him. The power to do nothing in a
situation, or not to act at all, is also a significant power; it is no less important than the power to do something. As
Davis observes in this connection: "all along the line an enormous discretionary power is the power to do nothing...
The power to do nothing, or almost nothing, or something less than might be done, seems to be the omnipresent
power........" 50

As in any other modern democratic country, in India, as well, there is predominance of discretionary powers. Being
a democratic country believing in regulated economy and not free economy, and having accent on centralised
planning of socio-economic development, there is a much faster and more pervasive growth of discretionary powers
in India. A demonstrable contemporary trend in India thus is that a large volume of case-law arises around the
discretionary powers which is indicative of the wide-spread use of the technique of conferring discretionary powers
on the Administration in India. A complete analytical study of such powers has not so far been attempted in India.
Such a study is a great desideratum to understand the breadth and depth of such powers, the standards and
procedural safeguards to which they are subject, and the control and safeguards which may be available against
their improper exercise.
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4. NEED FOR SAFEGUARDS

Quite often, the legislature bestows more or less an unqualified or uncontrolled discretion on the Administration.
The power is usually couched in broad phraseology giving a large area of choice to the Administration. Usually no
guidelines are laid down in the parent act as to how the discretion being conferred by it is to be exercised by the
donee of the power. The legislation conferring discretionary powers on the Administration is very broadly worded
and does not specify clearly and definitely the conditions and circumstances subject to which, and the norms with
reference to which, the Administration is to use the powers being conferred on it. Any number of typical statutory
provisions may be culled out from the statute book to illustrate the breadth and variety of discretionary powers
conferred on adjudicatory as well as non-adjudicatory bodies. Reference has already been made to discretionary
powers enjoyed by adjudicatory bodies. 51 Some examples of non-adjudicatory discretionary powers have already
been given earlier in the previous Chapters on Inquiries and Search and Administrative Powers. 52 The statutory
provisions conferring discretionary powers usually do not enunciate any policy, principle or standard subject to
which the power may have to be exercised by the concerned authority in a given situation.

While broad discretionary powers may be the need of the day from the point of view of the Administration,
nevertheless, from the concerned individual’s point of view there are a number of pitfalls in a discretionary decision-
making process. Discretionary decisions seriously affect the rights and interests of the individual. There are several
disadvantages in the Administration adopting a case to case approach as contrasted with the adoption of a general
rule applicable uniformly to all similar cases. Where a case to case decision operates on past facts, a general rule
usually avoids retroactively and operates in future so that one has prior notice of the rules applicable to him and he
may thus regulate his affairs accordingly. In a case to case approach, the concerned individual may be caught by
surprise and he may not be able to adjust his affairs in the absence of his ability to foresee future administrative
action. Such an approach also involves the danger of discrimination amongst individuals; there arises a possibility
of individuals not getting like treatment under like circumstances. The authority may not react consistently in similar
situations; it may discriminate between, and give differential treatment to, individuals in similar circumstances. The
Administration is not bound to follow its own previous decisions which may give rise to inconsistency in decisions.
This is subversive of the principle of equality before law. There always exists the danger of arbitrariness and abuse
of discretion on the part of the administrators as they may not act according to any norms or principles but may act
according to their own whims and fancy. It is axiomatic that the broader the discretion, the greater the chance of its
abuse. Presently the ambit of discretionary powers being expansive, chances of their misuse abound. An
administrator having complete freedom of action may indulge in arbitrary action thus seriously threatening individual
freedom and this is subversive of the principle of rule of law. 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." 53 And further: "Absolute discretion, like corruption, marks the
beginning of the end of liberty". 54

Further, the process of administrative decision-making is time-consuming and dilatory as it involves an individual
decision in a multiplicity of cases. An administrator is inclined many a time to subordinate the claims to justice of the
individual to the more general demands of administrative expediency and public policy. The reason is that he is
basically an administrator and not a judge. The administrative decision-maker lacks independence to decide as he
is susceptible to political, ministerial and bureaucratic influences and pressures. 55 Administrative decisions are not
usually made in the open and an administrator is not bound to give reasons for his decision unless the relevant
statute imposes an obligation on him to do so which is not a common practice. An administrator is not bound to
follow norms of procedural fairness unless the same are imposed on him by law or are implied by the courts. 56

The modern government is impossible without discretionary powers. Discretionary power is a governmental tool in
modern times to achieve certain desired objectives, e.g. , for individualization of justice, but it is a dangerous tool as
too much discretion may result in injustice from arbitrariness and inequality. DAVIS has observed in this connection:

"I think the greatest and most frequent injustice occurs at the discretion end of the scale, where rules and principles
provide little or no guidance, where emotions of deciding officers may affect what they do, where political or other
favouritism may influence decisions, and where the imperfections of human nature are often reflected in the choices made."
57
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In such a context, it becomes necessary to devise ways and means to minimise the dangers of absolute discretion
and to ensure administrative Justice to the individual. One cannot depend on the good sense of the Administration
itself to use its powers properly. This brings forth the question of safeguards in order to ensure that discretion is
properly exercised by the concerned authority. The question of safeguards in this area assumes crucial significance
as we want "a government of laws and not of men." The importance of controlling the Administration in the exercise
of its discretionary powers has been underlined by many scholars. It has been observed that it cannot be right or
just that Minister should have unfettered discretion and that, as administrative action now-a-days touches and
directly controls the everyday life of every person, it is very important that there should be adequate safeguards. 58
Another scholar has observed: "Wide discretion there must be in all administrative activity, but it should be
discretion defined in terms which can be measured by legal standards lest cases of manifest injustice go unheeded
and unpunished". 59 Thus, the major question in the area of discretionary powers is: What safeguards exist over
decision-making by an authority in the discharge of its discretionary powers? To achieve this objective, a multi-
pronged strategy has to be adopted.

First, there is the question of limiting the scope and range of the discretion itself. It is necessary to confine the
discretion in some measure, i.e. , fix the boundaries of discretion, or to reduce the open-ended nature of a
discretion, so that it does not turn into an unrestricted absolutism. This means reducing the range of subjective
judgment by laying down standards, criteria and guidelines for its exercise. Discretion cannot be totally avoided in
modern administrative process, but efforts may, and ought, certainly be made to reduce its range. This can be
achieved by laying -down meaningful standards subject to which discretion will have to be exercised by the donee
of the power. As has already been stated, most of the statutes confer discretion in too general terms without
specifying any policy to be followed by the concerned authority in deciding individual cases. This can lead to
arbitrary action. This can also give rise to decisional inconsistency. It is desirable to have uniformity and
consistency in administrative decision-making in similar cases to the extent possible, because, as a matter of
general principle, substantial lack of uniformity in administrative decision-making would lead not only to
administrative chaos, but also to the collapse of public confidence in fairness of the Administration. In any individual
case, it is highly relevant to take into account what has been done in other similar cases, otherwise decisions may
come to be regarded as improper or discriminatory. In view of these manifold disadvantages, it appears preferable
to lay down a general principle for the exercise of discretion rather than leave it completely free to decide from case
to case without any common denominator in the decisional process. 60

There are several possible ways in which this objective may be achieved. First, the law conferring the discretion
may by itself lay down the standards and the circumstances which the concerned authority may have to apply in
exercising its discretion and selecting a course of action. This means that the range of discretion should be cabined
by the law itself as far as possible, or, in other words, discretion should be properly confined and structured. This
means that the principles and criteria relevant to the exercise of such powers be specified so that their exercise is
not open-ended and without guidance. To do so would be preferable from the individual’s point of view for then the,
exercise of discretionary power becomes predictable. In India, to achieve the objective being mentioned here, the
courts have pressed into service the constitutionally guaranteed fundamental rights and have developed the
doctrine that absolute and unrestricted discretion cannot be conferred on the Administration. This matter has been
discussed at some detail in the next Chapter. 61 Two, if the Legislature fails to lay down standards as suggested
above, and in most cases the Legislature does fail to do so, then the Administration ought to seek to do so by taking
recourse to the mechanism of delegated legislation. 62 The Administration can use its power of delegated legislation
to lay down rules of conduct observable not only by the people, but also by the Administration itself, in given
situations. If a statute leaves a large amount of discretion in the hands of the Administration the technique of
delegated legislation can be used by it to lay down criteria subject to which the discretion is to be exercised. Thus
rules can be formulated by the Administration to channelise the broad stream of statutory discretion into a narrow
stream, by limiting the freedom of action of the authority having discretion by laying down standards and norms
according to which, the grounds on which, and the procedures according to which, the administrative discretion
conferred by the statute is to be exercised in individual cases. If that is done, proper application of power from case
to case can be ensured to a large extent. It would also help in predicting administrative decision in individual cases,
thus making individual’s rights somewhat certain and reducing chances of abuse of administrative discretion. Rules
will also help in an uniform application of the law in a large number of cases which may have to be handled by the
concerned authority, and especially when a number of parallel and co-equal authorities have to deal with similar
cases arising under a specific law. Three, in some statutes, discretion is given to authorities, but the power to issue
general directions setting out the principles and standards to guide the exercise of this discretion is vested in some
higher authority. A typical case in this genre is that of the Board of Film Censors, referred to earlier. 63 Fourthly, on a
lower plane, the authority having discretion may itself resort to the technique of issuing some guidelines or norms of
practice informing the concerned persons as to how it proposes to exercise its discretion. This technique may also
achieve some uniformity in discretionary decisions in similar cases, but such a technique has its own limitations, a
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CHAPTER XVII DISCRETIONARY POWERS (I)

matter discussed later under the heading of ‘Fettering Discretion.’ 64 It needs to be pointed out that laying down of
norms, standards, criteria for the exercise of discretion is a process which needs constant adjustments from time to
time for what may be valid at the initial experimental stage of a scheme may not remain valid later when some more
experience is gathered by the working of the scheme. It may also be pointed out that laying down of these
standards or norms to guide discretion is best done through statutory provisions and thereafter through rules: both
of these are judicially enforceable; in case of directions, the question may arise whether the same are judicially
enforceable or not. 65

It may also be pointed out that laying down of standards or norms regulating discretion may make discretion
somewhat less than absolute, but it cannot be completely eliminated, nor will it be desirable to do so. Administration
functions on a broad canvas, and individual cases are bound to arise which may fall outside the guiding norms.
Then there may be questions of interpretation of these guidelines and the Administration will have to take some
decision on these matters in the first instance. Not all actions of the Administration can be bound by fixed rules.
Many a time, it may not be possible to prescribe intelligible standards for the Administration to follow in the exercise
of its discretion in varied fact-situations which may arise.

But, in reality, the present-day situation is that the legislature rarely enacts a comprehensive legislation complete in
all details. More often, the legislation is sketchy or skeletal, leaving many gaps and conferring powers on the
Administration to act in a way it deems ‘necessary’, or ‘reasonable’, or ‘if it is satisfied’, or ‘is of the opinion’ and so
on. Often the statute is very broadly worded and lays down no standards subject to which the discretionary power
may have to be exercised. If standards are laid down, they are often vague or too general in nature. The justification
often offered for such a situation is that the Administration has to meet varied, unforeseen and complex situations
and to meet which it may be difficult to formulate definitive standards in advance in articulate terms and, therefore,
the concerned authority has to be left free to act, and make choices between alternative courses of action which
may be open to it to cope with a situation, according to its own judgment. Even where it may be possible to lay
down standards of administrative behaviour, the legislature does not do so and often leaves the matter to an open-
ended discretion of the Administration. The Administration does not also use its power of delegated legislation to fill
in the gaps in the law and lay down norms to regulate discretionary powers. The reason is that there is reluctance
on the part of the Administration to control and define its own powers.

There is a need to lay down fair procedures which a decision-maker must follow in making a discretionary decision.
When substantive safeguards are lacking, procedural safeguards may assume some significance. 66

This then brings us to the question of supervision of administrative decision-making. At the top is the judicial control
of discretionary powers. When the legislature leaves the discretion wide open, the courts move in to lay down some
norms to regulate discretionary powers to protect the individuals from the vagaries of the Administration. 67 The
courts have thus responded in a creative manner to the trend of growing discretionary powers of the Administration.
The courts have done so because of the feeling that uncontrolled discretionary power may lead to infringement of
an individual’s rights. Even when some norms or standards are laid down the question may arise whether a
particular discretionary decision conforms with these norms or standards. The general legal principle is that
administrators ought not to function in excess of their power given to them by law. This is known as the doctrine of
ultra vires . 68 A very notable feature of the Indian Legal System is that it provides for several channels by following
which an aggrieved person can always bring a discretionary decision before the Courts for scrutiny. 69 Thus, the
question of grounds of judicial control of discretionary powers assumes crucial significance and is the theme of the
next two Chapters. Judicial control of discretionary powers functions at two levels. One, at the level of conferment of
discretion through legislation by the legislature. The idea is to compel the legislature to desist from conferring too
broad or uncabined discretionary power. 70 In India, the courts have sought to spell out some limits on the
conferment of broad discretionary powers by invoking some Fundamental Rights, guaranteed by the Constitution,
as for example, Arts. 14 and 19. This necessitates that the law lays down some substantive and/or procedural
safeguards on the exercise of discretionary power, otherwise the law may be held unconstitutional. Even the courts
may imply some safeguards into the law to save it from being invalidated. If the court finds that too broad discretion
has been conferred on an authority under a law, it may read it down and hold it valid; 71 but if that is not possible, it
may declare the same to the unconstitutional by invoking some applicable Fundamental Right. Two, if the
delegation of power is valid then the courts impose some control over the actual exercise of its discretionary powers
by the official concerned. The idea is to ensure that the officials discharge their discretionary functions according to
law and within the legal limits-express or implied. With the passage of time, the courts have evolved several norms
and idioms to regulate the exercise of discretionary powers, to ensure that such powers are exercised according to
law, and to contain, to some extent, seemingly broad discretionary powers. These norms are derived in India from
two sources: (i) English common law; (ii) Fundamental Rights provisions in the Indian Constitution. The judicial
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CHAPTER XVII DISCRETIONARY POWERS (I)

review of discretionary powers thus constitute a very significant, though complex, segment of Indian Administrative
Law. 72

While the courts have been somewhat active and creative lately in the matter of controlling discretionary powers,
the situation cannot be said to be entirely satisfactory. 73 The reality of the present-day situation is that the judicial
control of discretionary powers is, on the whole, weak, deficient and marginal. Therefore, in the common-law
countries, a quest is going on for finding out some more effective supervisory mechanism for the purpose. 74 Resort
is being had increasingly to the institution of tribunals. The relevant law may provide for an appeal from the
decision-making authority to a tribunal. 75 As will be seen later, 76 unlike the court, the tribunal may go into the
merits of a discretionary decision and thus may be more effective as a control mechanism over discretionary
decisions than a court. In Australia, a very innovative step has been taken, viz. , to establish the Administrative
Appeals Tribunal (AAT)-an independent tribunal having general jurisdiction to review administrative decisions, i.e. ,
decision of officials rather than decisions of other tribunals. AAT can review a decision on merits including policies.
77 Having one tribunal, instead of a miscellany of specialist tribunals, has the advantage of standardising principles

and procedures in administrative process. 78 In Britain, as early as 1961, in a report by Justice, 79 a suggestion was
made to establish a General Tribunal to deal with miscellaneous appeals from discretionary decisions. 80 Two main
reasons were mentioned to support this suggestion:

1. To set up a separate tribunal to deal with each area of discretion might mean a great proliferation of
tribunals; in some areas, the number of cases may be so small as not to justify the setting up of a separate
tribunal in that area.
2. At the same time, it would be unfair to deny a citizen the right to challenge a discretionary decision.

Said the Report:

"In our view, a solution to this practical difficulty should be sought which will avoid a proliferation of tribunals but will
nevertheless provide the means for a citizen to obtain an impartial adjudication..."

Another significant step taken in some countries to strengthen supervision over discretionary decisions rendered by
the officials is to establish the institution of Ombudsman, a topic discussed later in the book. 81 Besides, it is also
necessary for the departments to improve their internal supervision by superior officers over junior officers making
discretionary decisions. There should be proper intra-departmental procedures to ensure that persons aggrieved by
decisions of lower officers may have their grievances redressed at a higher level. Provisions ought to be made for
formal hierarchical administrative appeals within the Department. It may be possible to provide by law a review by a
higher authority of a decision of a lower authority within the department itself. These steps, if adopted, will greatly
reduce the number of cases going to either the tribunal or the courts for review. It is also suggested that to improve
the system of discretionary powers, the administrative departments should make available more information to the
public as to their rights and entitlements and the procedures to secure them.

The Legislature also has some mechanism to supervise the Administration. On the whole, however, this
mechanism is very weak and ineffective as has been discussed later. 82

(a) A network of restrictive principles

When a statute vests discretion in an authority to exercise a statutory power, such authority cannot exercise the
same in an unfettered manner otherwise the courts are constrained to intervene. That is why from time to time,
courts have "woven a network of restrictive principles" which the statutory authorities have to follow while exercising
the discretion vested in them. This principle has been extended even when the authorities have to exercise
administrative discretions under certain situations. Another well-known principle which has emerged during the
years that where a statute vests discretion in the authority to exercise a particular power, there is an implicit
requirement that it shall be exercised in a reasonable and rational manner free from whims, vagaries and
arbitrariness. 83 In Vijayabai v. Shreram Tukaram , 84 the Apex Court held that the Tahsildar while exercising his suo
motu power under Section 49-B of the Bombay Tenancy and Agricultural Lands (Vidarbh Region) Act 99 of 1958
has to initiate on the basis of the materials before him and not arbitrarily. It is not an omnipower to be exercised on
the likes and dislikes of the authority. Though such a power is a wide power but it has to be exercised with
circumspection within the limitations of the statute. Wider the power, the greater circumspection has to be
exercised.
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CHAPTER XVII DISCRETIONARY POWERS (I)

"A statutory discretion is not, however, necessarily or, indeed, usually absolute: It may be qualified by express and
implied legal duties to comply with substantive and procedural requirements before a decision is taken whether to
act and how to act. Moreover, there may be a discretion whether to exercise a power, but no discretion as to the
mode of its exercise; or a duty to act when certain conditions are present, but a discretion how to act. Discretion
may thus be coupled with duties." 85

1 (1598) 5 Co 99b, as cited by WADE & FORSYTH in Administrative Law , 9th Edn., 2005, p. 351.
2 VI (2004) SLT 428, 430, para 6.
3 Roberts v. Hopwood, 1925 AC 578.
4 (1770) 98 ER 327.
5 AIR 1981 SC 2085 [LNIND 1980 SC 422], 2095,.
6 AIR 1995 Cal 327 [LNIND 1995 CAL 53], 333,.
7 (1970) 4 Hurr 2528.
8 (1971) 1 All ER 1148.
9 (1982) 3 All ER 141.
10 AIR 1998 Ori 213 [LNIND 1998 ORI 67], 216,.
11 AIR 1998 Ker 124 [LNIND 1997 KER 334], 127,.
12 Extracted from P. RAMANATHAIYAR’S Advanced Law Lexicon , 2005, Vol. II, pp. 1410, 1411 and 1412.
13 (1680) 8 How St. Tr. 57, as cited in Reliance Airport Developers (P) Ltd. v. Airport Authority of India, (2006) 10 SCC 1
[LNIND 2006 SC 927], 32 (para 32).
14 UOI v. Kuldeep Singh, (2004) 2 SCC 590 [LNIND 2003 SC 1056], para 19: AIR 2004 SC 827 [LNIND 2003 SC 1056].
15 Reliance Airport Developers (P) Ltd. v. Airports Authority of India, (2006) 10 SCC 1 [LNIND 2006 SC 927], 31 (para 28),
per PASAYAT.J .
16 UOI v. Kuldeep Singh, (2004) 2 SCC 590 [LNIND 2003 SC 1056], para 22: AIR 2004 SC 827 [LNIND 2003 SC 1056].
17 Reliance Airport Developers (P) Ltd. v. Airports Authority of India, (2006) 10 SCC 1 [LNIND 2006 SC 927], 32 (para 29).
18 7 1891 AC 173: (1886-90) All ER Rep 651 (HL).
19 (2004) 2 SCC 370 [LNIND 2004 SC 81], para 9: AIR 2004 SC 1581 [LNIND 2004 SC 81].
20 (2004) 2 SCC 590 [LNIND 2003 SC 1056], para 21: AIR 2004 SC 827 [LNIND 2003 SC 1056].
21 Administrative Law by SIR WILLIAM WADE , 9th Edn., 2005, p. 233.
22 State of U.P. v. Jagendra Singh, AIR 1963 SC 1618 [LNIND 1963 SC 52]: (1963) 2 SCR 197.
23 State of M.P. v. G.C. Mandawar, AIR 1954 SC 493 [LNIND 1954 SC 90]: (1955) 1 SCR 599 [LNIND 1954 SC 90].
24 Supra , Chapter I; infra , Chapters XVIII and XIX.
25 Infra , Vol. 11, under Sub-Delegation.
26 Interim Report , para 19, p. 5.
27 DAVIS , Discretionary Justice: A Preliminary Inquiry , 4 (1969).
28 DAVIS , Discretionary Justice: A Preliminary Inquiry , 4 (1969); Lord DIPLOCK in Secretary of State for Education and
Science v. Tameside Metropolitan Borough Council, (1976) 3 All ER 665.
29 TOMLIN’S Law Dictionary , as cited in UOI v. Kuldeep Singh, (2004) 2 SCC 590 [LNIND 2003 SC 1056], para 20: AIR
2004 SC 827 [LNIND 2003 SC 1056].
30 Sharp v. Wakefield, 1891 AC 173 : (1886-90) All ER Rep 651 (HL), per Lord HALSBURY, L.C. , as referred in UOI v.
Kuldeep Singh, (2004) 2 SCC 590 [LNIND 2003 SC 1056], para 21: AIR 2004 SC 827 [LNIND 2003 SC 1056].
31 Siddheshwar Sahakari Sakhar Karkhana Ltd. v. CIT, (2004) 12 SCC 1 [LNIND 2004 SC 902], 19-20 (paras 31).
32 Bhikhubai Vithalbhai Patel v. State of Gujarat, (2008) 4 SCC 144 [LNIND 2008 SC 713], 159 (para 32).
 Page 11 of 12
CHAPTER XVII DISCRETIONARY POWERS (I)

33 Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498 [LNIND 2009 SC 1278], 543-44
(para 110).
34 Tika Ram v. State of U.P., (2009) 10 SCC 689 [LNIND 2009 SC 1794], 743-44 (para 112).
35 FREUND , Administrative Powers over Person and Property , 71 (1928).
36 Supra , Chapter V.
37 Supra , Chapter VI.
38 Supra , Chapters XIII and XIV.
39 Infra , Chapter XIX.
40 Supra , Chapter IX.
41 Infra , Chapter XIX.
42 Infra , Chapter XIX.
43 Govt. of Orissa v. Hanichal Roy, (1998) 6 SCC 626, para 3.
44 GRIFFITH & STREET , Principles of Administrative Law , 145 (1973); KEIR & LAWSON , Cases in Constitutional Law ,
402 (1967); K. DAVIS , Discretionary Justice , 4, (1969); NEDJATIGIL , Judicial Control of Administrative Discretion: A
Comparative Study , (1985) 14 Anglo American LR 97.
45 KEIR & LAWSON , Cases in Constitutional Law , 402 (1967).
46 AIR 1981 SC 1641 [LNIND 1981 SC 313]: (1981) 3 SCC 558 [LNIND 1981 SC 313] : 1981 Crlj 1262. For further
discussion on preventive detention, see, infra , Chapters XVIII and XIX: JAIN , Cases , Chapters XV and XVI.
47 AIR 1978 SC 209 [LNIND 1977 SC 301]: (1978) 1 SCC 1 [LNIND 1977 SC 301].
48 Lal Deen v. State of Rajasthan, AIR 1983 Raj 225 .
49 Supra , Chapter I.
50 DAVIS , Discretionary Justice, A Preliminary, Inquiry , 4 (1969), at 22.
51 Supra , Chapters XIII and XIV.
52 Supra , Chapter XVI, Also see, supra , Chapter XV.
53 United States v. Wunderlick, 342 US 98, 101 (1951).
54 New York v. United States, 342 US 882, 884 (1951).
55 See, for example, under ‘Failure to exercise Discretion’, infra , Chapter XIX.
56 Supra , Chapter IX, under ‘Natural Justice’.
57 DAVIS , Discretionary Justice: A Preliminary Inquiry , 4 (1969).
58 RICHARD C. FITZGERALD , Safeguards in the Exercise of Functions by Administrative Bodies , 28 Can BR 538
(1950).
59 WADE , Courts and Administrative Process , 63 LQR 173 (1949).
60 See, BAKER , Policy by Rules or Ad Hoc Approach-Which should It be? 22 Law and Contempt Problems , 657 (1957);
Friendly, Federal Administrative Agencies: The Need for Better Definition of Standards , Chapter I and VII (1962);
DAVIS , Discretionary Justice (1969).
61 Infra , Chapter XVIII: JAIN , Cases , Chapter XV.
62 Supra , Chapter IV.
63 Supra , XIII.
64 Infra , Chapter XIX. For relevant cases on this point, see, JAIN , Cases , Chapter XVI.
65 Supra , Chapter VIII.
66 On this point, see, infra , Chapter XIX.
67 For this purpose, see, Chapter XIX, infra .
68 See, infra , Chapter XIX, for explanation of this doctrine.
69 For a discussion of this aspect, see, infra , Vol. II.
70 Infra , Chapter XVIII. For relevant cases in this area, see, JAIN , Cases , Chapter XV.
 Page 12 of 12
CHAPTER XVII DISCRETIONARY POWERS (I)

71 Jagdish Pandey v. Chancellor, Univ. of Bihar, AIR 1968 SC 353 [LNIND 1967 SC 233]: 1968 (1) SCR 231 [LNIND
1967 SC 233].
72 Infra , Chapters XVIII and XIX.
73 Infra Chapters XVIII and XIX.
74 Infra , Chapter XIX.
75 Supra , Chapter XIII; JAIN , Cases , Chapter XII.
76 Infra , also, supra , XIII.
77 In Australia, sometime back a full-fledged inquiry was conducted on the review of discretionary powers of the
Administration: see Final Report of the Bland Committee on Administrative Discretions (1973). See also, M.P. JAIN ,
Changing Face of Administrative Law, India & Abroad . The Bland Committee Report led to the creation of the
Ombudsman system and an Administrative Appeals Tribunal to review discretionary decisions on merits in many cases.
See, supra , Chapter II and Chapter XIV.
78 Sir ANTHONY MASON , Administrative Review : The Experience of the First Twelve Years, (1989) 18 Federal LR
122.
79 Justice, The Citizen and the Administration: The Redress of Grievances , (1961).
80 Report , 31.
81 Infra , Vol. II.
82 Infra , Vol. II.
83 Union of India v. Jesus Sales Corporation, (1996) 4 SCC 69 [LNIND 1996 SC 2608], para 4: AIR 1996 SC 1509
[LNIND 1996 SC 2608].
84 (1999) 1 SCC 693 [LNIND 1998 SC 1180], 698 (para 9): AIR 1999 SC 431 [LNIND 1998 SC 1180].
85 HALSBURY’S Laws of England , 4th Edn. vol 1.

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