Administrative Discretion And The Rule Of Law

Author: LawSphereX

Category: Administrative & Regulatory Law

Published: 2026-08-23T17:37:47.045705+00:00

Updated: 2026-08-26T17:12:27.303+00:00

ADMINISTRATIVE DISCRETION AND THE RULE OF LAW

Rakshita Choudhary, Post-graduate from Institute of Law, Nirma University

ABSTRACT

India is one of the world’s largest democratic countries. It functions on the principles laid in the grundnorm of the country i. e. the Constitution of India and believes in the supremacy of law. During the transition phase of the country from being a Police State under colonial era to being a Welfare State, the domain of responsibilities of the government expanded and did not remain confined to just the security of the nation. It was then that the responsibilities were delegated to the executive also to fill up the loopholes left by the legislature by exercising administrative functions. These were the arenas with no fixed laws and thus kept the scope open for the exercise of discretion by the administrative authorities in the exercise of their administrative functions and since then, the authorities have been exercising this discretion as a part of routine.

However, the question which pops up here is what about the supremacy of law? Isn’t the exercise of discretion contrary to the principle ‘law is above all’? Isn’t the act of administrative discretion a violation of rule of law or is there a balance between the two? All these questions grasped the interest of the researcher and thus have been studied via this article. The article commences at the common understanding of the principle of rule of law. Following that, the next segment of the article explains administrative discretion and arenas where the discretion is likely to be exercised. Towards the latter half of the article researcher discusses the nexus and balance between the rule of law and administrative discretion and if both the principles can stand together in a democratic nation like India.

Keywords: Administrative Discretion, Rule of Law, Administration, Arbitrary Discretion, India

I.

Introduction After the British colonial era, India saw a shift from being a police state1 to being a welfare state2. It was this phase of transition that the state was burdened with numerous activities and responsibilities to be performed by it. It was then that the administrative section of the country was given various discretionary powers to be exercised by them to handle urgent disputes and matters and provide quick redressal. In addition, there were various situations wherein no specific rigid laws could be laid out prior-hand and required on-the-spot solutions based on the analysis of the facts and circumstances of such situations. Thus it was a need felt to provide administrative discretion to the administrative authorities to manage the nation.

The phrase ‘administrative discretion’ refers to “the will of the administrative authorities in decision making and functioning for the public welfare and to maintain law and peace”3. This discretion is necessary for the smooth functioning of the administration and the government. Thus, it is said that there could exist no administrative authority without the exercise of administrative discretion. Nonetheless, it is also to be noted that administrative discretion in an absolute sense could be a ruthle master and hamper the mere foundation of a democratic society i. e. the existence of rule of law. Administrative discretion gives the officials or the administrative authorities the power to make decisions where and when required by the circumstances as per their intellect. However, the authorities need to take into account while making decisions that every coin has two sides but balanced.

Similarly, while exercising their discretion the authorities need to see that the discretion they exercise is in consonance with the laws of the land. Ignorance of one side may lead to arbitrary exercise of power by the authorities thereby violating the principle of rule of law. Thus, what is the extent of exercise of administrative discretion that does not violate the rule of law of the country is the major question for this article. II.

Rule of Law Rule of law is an ancient concept holding relevance and importance till date. Rule of law 1 In general parlance, the police state is the one wherein the security of the state from external aggression and conflict is the sole duty of the government. 2 However, in common parlance, a welfare state is one wherein the government of the country is not just focused on the security of the state from external aggressions and wars but also focuses on the well-being and safety of its people. It also aims at adopting measures for the betterment and development of its people. 3 Shubhankit Singh Sengar, Administrative Discretion: Bureaucracy in Democracy, 9 Supremo Amicus 308 (2019)

showcases the predominance of law over individuals. It lays that in a democratic country, it is the sovereign that is the supreme/ above all and not any ruler or king. The credits for the concept of rule of law goes back to 1857 wherein AV Dicey being the propounder of this principle came up with three sub-principles governing the exercise of the government to uphold the supremacy of the sovereign and prevent the exercise or arbitrariness. Presence of rule of law mandates the state to function in a fair and non-arbitrary manner. According to Dicey’s rule of law, it is the law that is the supreme and is above all individuals; everyone is equal before the law and predominance of legal spirit. In the Indian Constitution, the concept of rule of law is not expressly mentioned but the spirit of rule of law exists which evolved via judicial precedents.

Rule of law entails the authorities to work in a just and fair manner within the four walls of law of the land i. e. the grundnorm or the Constitution of India. The major basis of the rule of law is to prevent arbitrary exercise or abuse of power by the administrative authorities in the exercise of their discretionary powers. 4 Dicey’s principles totally negated the presence of any kind of discretionary power or power not expressly mentioned in the laws. This formed the basis of criticism of his rule by Ivor Jennings. Ivor Jennings believed that for the smooth and efficient functioning of a government, some form of administrative discretion is must and inalienable. Later, with the modernisation and dynamic nature of law, Dicey’s principle became more prone to criticisms. Thereafter, came Bingham.

Bingham in his book ‘the Rule of Law', explained the rule of law principle via eight sub-principles. Those sub-principles include-

1. The law should be precise, predictable, clear and accessible,

2. The questions involving legal rights and liabilities of an individual should be decided

by application of law and not by the exercise of discretion.

3. Except when the objective difference requires differentiation, the law of the land should

apply to all in an equal fashion

4. The exercise of powers by the public authorities should be in good faith and not

4 S. G. Jaisinghani vs Union Of India And Ors., 1967 AIR 1427

excessive or abusive in nature.

5. The law must protect the fundamental rights of the people

6. Adjudication procedures provided by the State/ by the government must be fair.

7. Apart from fulfilling the obligations towards nation and people, the State should also

be equally active and responsive for fulfilling their international obligations

8. For the redressal of civil disputes the mode of settlement should be provided at

reasonable cost so even economically disadvantaged sections of the society can seek redressal at an equal footing to other sects of the society. These principles seem to be more elaborate and find more relevance in the present scenario. Thus, rule of law seems to be all meritorious to the people and acts as an umbrella to protect the fundamental rights of the people from the abusive and arbitrary exercise of discretionary powers of the administrative authorities. However, according to Prof. I.P. Massey, “the only negative side of the concept of rule of law is that respect for which law degenerates into legalism which from its very rigidity acts towards harming the nation.”5 III.

Administrative Discretion According to KC Davis, “Discretion implies power to make a choice between alternative course of action or inaction. A public officer has discretion whenever the effective limits of his power leave him free to make choices among possible courses of action or inaction”6 Administrative discretion is given various meanings by various jurists and judges. According to Lord Diplock, “The very concept of administrative discretion involves a right to choose between more than one possible course of action on which there is a room for reasonable people to hold differing opinion as to which is to be preferred”7 Thus, when a person is conferred with the powers to exercise his discretion and decide what is

5 IP Massey, Administrative Law, 7th edition, Eastern Book Publications

6 KC Davis, Discretionary Justice 4 (1969)

7 Held in the case: Secretary of State for Education and Science v Tameside Metropolitan Borough Council:

1977 AC 1014

right and what is wrong as per his perceptions and opinions, it is presumed that such person will act in a sound manner and as per the laws. Nonetheless, if the discretion exercised is beyond or violative of any of the laws of the country then the decision made in the exercise of discretion can be a subject of scrutiny in the court of law. Discretionary powers conferred upon the administrative authorities could be of different types. Ranging from being mere ministerial functions like maintaining birth and death records to being of an extent that may affect the rights of an individual like registration, confiscation of property, detention of person etc. Moreover, generally these discretionary administrative powers are beyond the subject of judicial interference.

Nonetheless, the judiciary can and does interfere with the actions resulting from these discretionary powers when they seem to curtain fundamental rights of the people. In the case of AK Gopalan v. State of Madras8, the Hon’ble Supreme Court expressly held that courts are restrained from interfering with the orders passed by the administrative authorities in the exercise of their discretionary powers. Where there is power there is a room for abuse. Thus, the exercise of discretionary powers by the administrative authorities may be exercised in an arbitrary manner creating a huge possibility of abuse and infringement of rights of the individuals.

9 It is rightly said- “power corrupts but absolute power corrupts absolutely” and thus to some extent administrative actions needs judicial interference, not to act as shackles to the discretionary actions of the authorities but to be a guiding and rectifying light when those administrative actions adopted in the exercise of administrative discretion starts hampering the protective bubble of law. Just like any other philosophy, the concept of administrative discretion also undergoes two consequences- success or failure. The power of administrative discretion is conferred upon administrative authorities for the betterment and fair redressal to the issues of the individuals. However, the power goes to vain when the authority fails to exercise its discretion due to any of the following reasons-

8 AK Gopalan v. State of Madras, AIR 1950 SC 27

9 ALEXANDER H. PEKELIS, ADMINISTRATIVE DISCRETION AND THE RULE OF LAW, Social Research ,

FEBRUARY

1943, Vol. 10, No.

(FEBRUARY

1943), pp. 22-37

available at: : https://www.jstor.org/stable/40981938

1. The authority actually conferred with the power sub-delegates it and leaves the

delegatee to exercise his discretion and come up with decisions.

2. Where the administrative authority acts under the dictation of his superior authority or

any other person in power thereby affecting his application of mind and analysis to the situation. The decision so made will not be said to be under free discretion.

3. Administrative discretion fails even in the cases where the authority does not scrutinise

the case or situation before him nor does he apply his mind to the scenario before deciding instead he has fixed set of decisions and imposes the same in all the cases i.e. he follows “one shoe fits all” policy instead of exercising his discretion subjective to facts of every case etc. These showcase the scenario wherein the administrative discretion suffers the failure of its basis of conferring it. Administrative discretion when not exercised becomes dangerous but the situation aggravates the danger when the power of administrative discretion exceeds the law of the land i.e. the authority starts using the conferred power in an arbitrary and capricious manner. Abuse of administrative discretionary power can be by way of-

1. Exceeding jurisdiction

2. Acting without jurisdiction

3. Arbitrary action

4. Irrelevant consideration

5. Leaving relevant consideration

6. Mixed consideration

7. Malafide

8. Improper object

9. Constitutional fraud

10. Non-observance of natural justice

11. Doctrine of proportionality

12. Unreasonableness

Courts in India have developed proper effective mechanisms to ensure that the discretion exercised is in conformity with the law and proper. The judicial control mechanism of administrative discretion is exercised at two stages- firstly, control at the stage of delegation of discretionary powers and secondly, the control exercised by judiciary at the stage of exercise of discretion. There have been various instances showcasing the impact of administrative discretion upon fundamental rights of the individuals. It is these instances of abuse of administrative discretionary powers that results in infringement of rights of an individual thereby bringing the court to interfere and uphold the principle of rule of law. IV. Rule of law and Administrative Discretion in India

Every time an administrative authority tries exceeding the discretionary powers conferred upon him, it leads to an infringement of fundamental rights of people enshrined in the Constitution of India and weakens the principle of rule of law in the country. It is undisputed that the discretionary powers are important for the functioning i. e. there can be no functional administrative authority without discretionary powers and hence conferring discretionary powers to administrative authorities is inalienable. Nonetheless, it can also not be denied that if administrative discretion forms a source of smooth functioning of governance, rule of law is the base or foundation of governance. Rule of law is the center pillar of any democratic country. Thus considering the equal footing and roles played by both the principles, we need to draw a balance between the two.

The authorities need to ensure that in the exercise of their discretionary powers, they do not overlook the laws or do not make any decisions that are in conflict with the constitutional principles or any other laws in force. Similar point was explained by Garner when he said that administrative discretion and rule of law should be balanced and administrative discretion is essential and fruitful to the extent it stays within the

purview of the law.10 However, according to Prof. Wade, it is the duty of the court to draw a line between what decision of the administrative authorities is ultra-vires and what is intra-vires.11 It is also, not a fact engraved upon stone that where there is administrative discretion, there will always be arbitrary or abusive exercise of power. Recognising the same, Hon’ble Supreme Court of India in the case of Centre of Public Interest Litigation v. Union of India12 it is always a presumption that the discretion exercised by the administrative authorities will be within the ambit of rule of law and not in contrary or excess to it.

V. Conclusion

In a democratic country, laying everything in the form of black and white is an impossible thought and thus there is and will always be a room for the exercise of discretion. Administrative discretion is an essential element of administrative authorities and of democracy. The term ‘discretion’ is to be given a positive connotation and be considered as a must-have for forming rules and regulations for governance in order to reduce the burden of legislature to inculcate every existing possibility of a situation in the form of well-drafted laws.

However, it is rightly said that ‘with great power comes great responsibility’ and this responsibility in the light of administrative discretion is upon the administrative authorities conferred with such administrative powers to exercise those powers within the ambit of the law and not surpass the laws laid in the Constitution or any other enactment. In cases it tries to overlook the laws, the judiciary acts as a guardian of the principle of rule of law. However, the judiciary here also has a responsibility to maintain the dignity of its power i. e. to interfere in the administrative actions only in the cases where it violates the law i. e. infringes the fundamental rights of individuals or is against the principles of natural justice and not every other time.

Hence, we conclude that, for an effective and smooth government, it's not the administrative discretion that holds importance or the rule of law, rather an effective government is the result of both and thus it is the balance of both of these principles that make a democratic country functional. 10 Rule and Discretion in the Administration of Justice, Harvard Law Review , May, 1920, Vol. 33, No. 7 (May, 1920), pp. 972-976 , available at- : https://www. jstor. org/stable/1327410

11 H.W.R. Wade, Administrative Law (1971)

12 Centre of Public Interest Litigation v. Union of India, 3 SCC 1 (2012)