Table of Contents

ADMINISTRATIVE DISCRETION- ITS NEED AND REALTION WITH RULE OF LAW

Table of Contents

Theoretical overview

Administrative discretion simply means the freedom to decide what should be done in a particular situation. According to De Smith, administrative discretion is a power to make a choice between alternative course of action.

In the words of K.C Davis, administrative discretion is a power which gives a public authority a free hand to make choice among possible courses of action or inaction.

The need for the administrative discretion has developed due to following reasons: – 

  1. Change in expectation as there is change from a police state to the welfare state
  2. Complexity and varying nature of problem
  3. New problems and lack of any previous experience to deal with them
  4. Sufficient to foresee all the future issues and have rules accordingly
  5. Changed circumstances from case-to-case forces to apply the same rule in different perception

Its relationship with law

Administrative decision making or administrative discretion should be done in such a way that it ensures non-arbitrariness and reasonableness as stated by the article 14 of the constitution. Such decision making should be done without any biasness and should be fair to maintain the rule of law and principles of natural justice.

Important case laws

  1. Susannah Sharp vs Wakefield – lord Hulsbury opined that when something is left to administrative discretion, it means that it has to be done in accordance with the principles of justice and reason and not on the basis of the private opinion of the authority concerned.

Most important articles

  • Article 14: Article 14 of the Indian Constitution applies not just to discriminatory class legislation on but also to arbitrary or discriminatory State action. Because a breach of natural justice leads to arbitrariness, a violation of natural justice is a violation of Article 14’s Equality Clause. As a result, the notion of natural justice cannot now be ignored entirely by legislation since doing so would violate the basic rights protected by Articles 14 of the Constitution. 
  • Article 21: Natural justice concepts are strongly rooted in several Articles of the Constitution. With the establishment of the idea of substantive and procedural due process in Article 21 of the Indian Constitution which talks about when a person is deprived of his life and personal liberty. All of the fairness included in natural justice principles may be read into Article 21 of the Indian Constitution. 

Points to remember

  • Administrative discretion simply means the freedom to decide what should be done in a particular situation
  • In the words of K.C Davis, administrative discretion is a power which gives a public authority a free hand to make choice among possible courses of action or inaction.
  • The need for the administrative discretion has developed due change in expectation as there is change from a police state to the welfare state
  • Administrative decision making or administrative discretion should be done in such a way that it ensures non-arbitrariness and reasonableness as stated by the article 14 of the constitution

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