DISCRETIONARY POWER

DISCRETIONARY POWER

The power to punish a delinquent conferred on the disciplinary authority and the appellate authority is a discretionary power and the question what is adequate punishment is a question of discretion. According to Black's Law Dictionary (5th Edition) discretionary power means "one which is not imperative or, if imperative, the time, manner or extent of execution of which is left to donee's discretion."

Discretion, when applied to public or statutory functionaries, means a power or right conferred upon them by law of acting officially in certain circumstances, according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others.

Chief Justice Coke said :

"Discretion is a science or understanding to discern between falsity and truth, between right and wrong, between shadows and substance, between equity and colourable glosses and pretences, and not to do according to their wills and private affections and opinions."

Lord Halsbury says :

"Discretion means when it is said that something is to be done Within the discretion of the authorities that something is to be done according to the rules of reason and justice, not according to private opinion according to law and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular and it must be exercised within the limit, to which a honest man competent to the discharge of his office ought to confine himself -"

Discretion implies power to make a choice between alternative courses of action. The need of discretion arises because of the necessity and expediency to individualise the exercise of power by the administration i.e., the administration has to apply a vague or indefinite provision from case to case. The sphere of judicial discretion includes all questions, as to what is right, just, equitable, or reasonable so far as not determined by authoritative rules of law but committed to the liberum arbitrium of the donees of power. A question of discretion is a question as to what ought to be, as opposed to a question of what is.

Salmond says :

"Matters of right and judicial discretion are not the subject of evidence and demonstration, but of argument, and are submitted to the reason and conscience of the Court –

in determining questions of judicial discretion it seeks to discover the right or justice of the matter."

In the matter of judicial or quasi judicial discretion it is the duty of the donee of the discretionary power to exercise his objective moral judgment, in order to ascertain the right and justice of the case. It is a basic and essential rule of the exercise of discretionary power that discretion must be brought to bear on every case; each case must be considered on its own merits and decided as the public and administrative interest requires. In enforcing this rule, the Courts are underlining the difference among judicial, quasi-judicial and administrative processes. Prof H.W.R. Wade in his book "Administrative Law" (6th Edition) after referring to the decisions in Mercandise Transport Limited v. British Transport Commission 1962 2 Q.B. 173 and R v. Greater Birmingham Appeal Tribunal ex.p. Simper 1974 Q.B. 543 writes :

"The legal rights of litigants are decided according to legal rules and precedents which are sometimes held to prevail over the Court's own opinion. But if an administrative authority acts in this way this decision is ultra vires and void. It is not allowed to 'pursue consistency at the expense of the merits of the individual cases, This doctrine is applied even to statutory Tribunals, despite their resemblance to Courts of law."

Discretionary power may be regulated or limited or controlled by the law which grants such power by defining limitations. The essence of a discretionary power is that despite limitations and restrictions imposed on it, the donee of the power should be left free to operate his moral judgment within the restricted sphere so allowed to him. If the whole sphere is pre-determined or standardized by law itself, the power granted to implement the law cannot be a discretionary power. For example, the question what is the proper penalty for an offence is usually a question of discretion. The law may impose a fixed maximum or a fixed minimum or both, but leaves the discretion of the donce of the power to operate within the limits so defined. Limits of discretionary power can be implied even in the absence of explicit limits in the law which grants power. For example, certain limitations flowing from Article 14 of the Constitution of India, such as administrative action should be fair, reasonable and not arbitrary can be read into the discretionary power, even in the absence of explicit limitations in those terms in the parent Act which grants discretionary power. A power without freedom or right to choose will never be a discretionary power.

The classical statement of the grounds of judicial review of abuse of discretion was made in Council of Civil Service Unions v.Minister for Civil Service, [1985] AC 374:

- Illegality: The decision-maker should correctly understand the scope of her power given by law, and must not exceed those limits;

- Irrationality: or ‘Wednesbury unreasonableness’, in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, [1948] 1 KB 223, 229

- Procedural Irregularity: Failure to act with procedural fairness or against natural justice.