This essay Judicial Control and Exercise of Discretion : has a total of 3453 words and 16 pages.
Judicial Control and Exercise of Discretion :
The transformation of the philosophy of state in the twentieth century from lassie faire to welfare has augmented the state's responsibility towards its subjects. There is no modern state in this epoch which can execute such innumerable functions devoid of any discretionary power of its own. India being a welfare democratic state is no exception to this procedure and therefore, administrators are bestowed with greater power and authority to meet the goals of a welfare state.
Justice Bhagwati in R. D. Shetty v. Internati onal Airport Authority of India , in the obiter dicta has said that, "exercise of discretion is an inseparable part of sound administration and, therefore, the State which is itself a creation of Constitution, cannot shed its limitation at any sphere of state activity."
Art of governance is complex and with unlimited usage of such power would definitely leave a vacuum where arbitrariness can germinate. Therefore a yardstick of its use is necessary. ‘Discretion suggests choosing one option from several options without any pre-determined criterion. As soon as the word ‘discretion' is added with the word ‘administrative', its use becomes qualified. Its exercise has to be with reference to the rule of reason and justice and not according to one's personal whims.' Any use which has an ambition of personal gain or personal satisfaction is prohibited by the rule of law.
The grant of this discretion by the country's legislature is well intended and bona fide but still knowing the darker side of this power, the Judiciary of this country has been trying to circumvent its misuse and abuse. The judiciary, being the watch dog of our rights, has its control over this administrative power in two different stages. Firstly, when it is granted to the administrative authority by our legislature and secondly, when it is at the stage of being used by the administrative authorities. However, for the purpose of this project only the second point would be discussed in details.
Definition of administrative discretion:
The definition of Administrative discretion is offered by many but there only few which are worth mentioning. Prof. Freund said that:
"When we speak of administrative discretion, we mean that a determination must be reached, in part at least, upon the basis of consideration not entirely susceptible of proof or disproof… It may be practically convenient to say that discretion includes the case in which the ascertainment of fact is legitimately left to administrative determination."
In black law's dictionary, administrative discretion would be a public official's or agency's power to exercise judgment in the discharge of its duties.
According to another thinker, Coke, discretion would be "…a science or understanding to discern between falsity and truth, between right and wrong, between shadows and substance, between equity and colorable glosses and pretences, and not to do according to their will and private affection."
In Oxford Dictionary of law, administrative powers have been defined as "the discretionary powers of an executive nature that are conferred by the legislature on government, ministers, public and local authorities and other bodies and persons for the purpose of giving detailed effect to the policy intended by the legislature itself."
Discretionary powers bestowed on the administrative authorities are of a vast range. Their power serve the purpose of simple ministerial tasks like maintenance of birth and death register as well as those which seriously affect the rights of an individual, e.g. acquisition of property, regulation of trade, industry or business, inquiry, seizer, confiscation and destruction of property, detention of a person on subjective satisfaction of an executive authority and many more. The list of their functions is exhaustive in nature.
Basically, administrative discretion is provided to the executive using which they drive the process of governance smoothly in the country. In short, the purpose of the discretion is to serve the country's citizens' in the best possible way.
Why Is Judicial Control Necessary?
Judicial review is the soul of our constitution. It is the exercise of the court's inherent power to resolve whether an action is lawful or not. ‘It holds the balance of power between individuals and the government. It legitimizes the application of administrative sanctions.'
In India, judicial review has a firm base. The framers of our constitution had not only
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