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IDEAL INSTITUTE OF
MANAGEMENT AND
TECHNOLOGY
SUBMITTED TO: SUBMITTED BY:
Mrs. Sangeetha Abraham hardik saxena
Sr. Assistant professor 01913403818
School of Law 2nd Year sec “A”
ADMINISTRATIV
E DISCRETION
MEANING & DEFINATION
The freedom to decide what should be
done in a particular situation.
Justice Coke:
 Discretion is science or understanding to
discern between falsity & truth, between
right & wrong, between shadows and
substance, between equity & colourable
glasses & pretences, and not to do according
to their will and private affections.
DIFFRENCE BETWEEN
 Ministerial Powers:
 Powers which are strictly required to be exercised according to law.
 no choice.
 -the principles, criteria's and conditions applicable universally to all & equally to
all.
 no power to differ on the basis of facts & circumstances.
 Discretionary Powers:
 the administrative body apply the principles, criterions and conditions on the
basis of facts & circumstances .
 Satisfaction of authority is important.
 the authorities give different treatment to different cases
NEED OF DISCRETION
 Legislature :
 legislate law on presumption.
 -couldn’t foresee circumstances & exigencies
in future.
 Discretion is necessary:
 better & smooth functioning of administrative
body.
 todo justice with all people while law
is administered.
EFFECT OF DISCRETION
 Lord Acton:
 Every power tends to corrupt & absolute power tends to
corrupt
 absolutely.
 United States v
.Wunderlick 342 US 98, 101 (1951)
 Justice Douglas- Where discretion is always absolute, man has always
suffered……….. Administrative discretion is more destructive of freedom than any of
man’s other inventions.
 Dicey:
 Wherever there is discretion, there is room for arbitrariness and that in a
republic no less than u/a monarchy, discretionary authority on the part of the govt. must
mean insecurity for legal freedom on the part of its subject.
CONSTITUTIONAL
&STATUTORY DISCRETION
 Validity of Discretion:
1) Substantive Aspect
2) Procedural Aspect
 Article 14:
 State of West Bengal v.Anwar Ali (AIR 1952 SC 75)
 Chitralekha v. State of Mysore (AIR 1964 SC 1823)
 Article 19:
 State v.Baboo Lal (AIR 1956 ALL 521)
 Dr. Ram Manohar Lohia v. State of Delhi (AIR 1950 SC 211)
RULE OF LAW IN INDIA
 The Constitution of India specifically provides that the
state shall not deny to any person equality before the
law or the equal protection of the laws. The concept of
rule of law would lose all its vitality if the
instrumentalities of the State are not charged with the
duties of discharging their functions in a fair and just
manner.5 It has been held that the rule of law
pervades the constitution as its basic feature and
cannot be taken away even by an amendment of the
constitution.6 In a system governed by rule of law,
discretion, when conferred upon executive authorities,
must be confined within clearly defined limits. This
means that decision should be made by the
application of known principles and rules and, in
general, such decisions should be predictable and
citizens should know where he stands.
Basic principles of rule of
law
 Law is Supreme, above everything and everyone.
Nobody is above the law.
 All things should be done according to law and not
according to whim.
 No person should be made to suffer except for a distinct
breach of law.
 Absence of arbitrary power being the heart and soul of
the rule of law.
 Equality before the law and equal protection of the law.
 Discretionary power should be exercised within
reasonable limits set by law.
 Adequate safeguard against executive abuse of powers.
 Independent and impartial Judiciary.
 Fair and Just Procedure.
 Speedy Trial
CASE LAW
 In an early case, S.G. Jaisinghani V. Union of India
and others9 the Supreme Court portrayed the
essentials of rule of law in a very lucid manner. It
observed: “The absence of arbitrary power is the first
essential of the rule of law upon which our whole
constitutional system is based. In a system governed by
rule of law, discretion, when conferred upon executive
authorities, must be continued within clearly defined
limits. The rule of law from this points of view means that
decisions should be made by the application of known
principles and rules and, in general, such decision
should be predictable and the citizen should know
where he is. If a decision is taken without any principle
or without any rule it is unpredictable and such a

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Constitutional & Statutory Discretion

  • 1. IDEAL INSTITUTE OF MANAGEMENT AND TECHNOLOGY SUBMITTED TO: SUBMITTED BY: Mrs. Sangeetha Abraham hardik saxena Sr. Assistant professor 01913403818 School of Law 2nd Year sec “A”
  • 3. MEANING & DEFINATION The freedom to decide what should be done in a particular situation. Justice Coke:  Discretion is science or understanding to discern between falsity & truth, between right & wrong, between shadows and substance, between equity & colourable glasses & pretences, and not to do according to their will and private affections.
  • 4. DIFFRENCE BETWEEN  Ministerial Powers:  Powers which are strictly required to be exercised according to law.  no choice.  -the principles, criteria's and conditions applicable universally to all & equally to all.  no power to differ on the basis of facts & circumstances.  Discretionary Powers:  the administrative body apply the principles, criterions and conditions on the basis of facts & circumstances .  Satisfaction of authority is important.  the authorities give different treatment to different cases
  • 5. NEED OF DISCRETION  Legislature :  legislate law on presumption.  -couldn’t foresee circumstances & exigencies in future.  Discretion is necessary:  better & smooth functioning of administrative body.  todo justice with all people while law is administered.
  • 6. EFFECT OF DISCRETION  Lord Acton:  Every power tends to corrupt & absolute power tends to corrupt  absolutely.  United States v .Wunderlick 342 US 98, 101 (1951)  Justice Douglas- Where discretion is always absolute, man has always suffered……….. Administrative discretion is more destructive of freedom than any of man’s other inventions.  Dicey:  Wherever there is discretion, there is room for arbitrariness and that in a republic no less than u/a monarchy, discretionary authority on the part of the govt. must mean insecurity for legal freedom on the part of its subject.
  • 7. CONSTITUTIONAL &STATUTORY DISCRETION  Validity of Discretion: 1) Substantive Aspect 2) Procedural Aspect  Article 14:  State of West Bengal v.Anwar Ali (AIR 1952 SC 75)  Chitralekha v. State of Mysore (AIR 1964 SC 1823)  Article 19:  State v.Baboo Lal (AIR 1956 ALL 521)  Dr. Ram Manohar Lohia v. State of Delhi (AIR 1950 SC 211)
  • 8. RULE OF LAW IN INDIA  The Constitution of India specifically provides that the state shall not deny to any person equality before the law or the equal protection of the laws. The concept of rule of law would lose all its vitality if the instrumentalities of the State are not charged with the duties of discharging their functions in a fair and just manner.5 It has been held that the rule of law pervades the constitution as its basic feature and cannot be taken away even by an amendment of the constitution.6 In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits. This means that decision should be made by the application of known principles and rules and, in general, such decisions should be predictable and citizens should know where he stands.
  • 9. Basic principles of rule of law  Law is Supreme, above everything and everyone. Nobody is above the law.  All things should be done according to law and not according to whim.  No person should be made to suffer except for a distinct breach of law.  Absence of arbitrary power being the heart and soul of the rule of law.  Equality before the law and equal protection of the law.  Discretionary power should be exercised within reasonable limits set by law.  Adequate safeguard against executive abuse of powers.  Independent and impartial Judiciary.  Fair and Just Procedure.  Speedy Trial
  • 10. CASE LAW  In an early case, S.G. Jaisinghani V. Union of India and others9 the Supreme Court portrayed the essentials of rule of law in a very lucid manner. It observed: “The absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be continued within clearly defined limits. The rule of law from this points of view means that decisions should be made by the application of known principles and rules and, in general, such decision should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a