Discretionary

Power
Necessity for the Administration
Administrative Actions- ministerial or
discretionary
Administrative actions are either ministerial or
discretionary.
A ministerial action is one where the authority has a duty
to do a thing in a particular way. Such actions however, are
exceptional.
In most administrative actions, the administrative authority
has the power either to act or not to act or to act in one
way or the other- is called discretionary power. Discretion
is the power to decide or act according to one’s judgment.
Various ways of Exercising
Discretion-Illustrative Examples
1. They have to decide whether the activities of a
person are likely to be prejudicial to the security of
the State or public order so as to justify her
preventive detention, or whether a dispute should be
referred for adjudication to the Industrial Tribunal
under Section 10 (1) of Industrial Disputes Act,
1947 or whether sanction for the prosecution of
government official for an offence be given.
contd……
Contd….
2. Whether a permission should be given to do an act
or a license be given to conduct an activity or an
exemption be granted from some liability or how
largesse, such as privileges or immunities granted in
terms of permits, licenses, monopolies or contracts,
be allotted.
3. Where a statute uses the word ‘may’ before
describing the power indicates the freedom of the
authority either to act or not to act contd…..
Contd……
Or to act in one way or the other.
For Example- ‘the collector may confiscate goods’ or
the Commissioner of Police ‘may detain a person’ the
word ‘may’ indicates freedom of authority to act in
one way or the other.
Inevitability of Discretion
No modern government 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
arising of certain situations that can not be
anticipated. The administrator has to respond by
using the power given to him/her .
Contd……
Contd…..
What is to be done if a riot breaks? 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 an administrative
authority. 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 forming an
opinion or being satisfied that the action is necessary.
All such actions are discretionary.