Administrative Powers And Descritionary Power:
In modern state the role and functions of administration has increased manifold like regulatory and managerial functions. Increase in functions and increase in powers goes together. Therefore, in order to let administrative authority, do its functions properly many powers are given.
Administrative power is the power to administer or enforce a law. Administrative powers can be executive, legislative, or judicial in nature. Administrative power intends to carry the laws into effect, practical application of laws and execution of the principles prescribed by the lawmaker.
In Robertson v. Schein, 305 Ky. 528 (Ky. 1947), it was observed that“the authority to make rules and regulations to carry out a policy declared by the lawmaker is administrative and not legislative. Therefore, the power of an administrative agency to make rules to carry out a policy is administrative in nature[i]. The issue of an administrative body’s authority presents a question of law and not a question of fact”.
Administrative Powers conferred by Law:
The government has power to dismiss, remove or reduce in rank a government servant but such a power is exercisable after giving a hearing into the concerned person. Rule 16(3) of the All India Services (death-cum-retirement) Rules, 1958 empowers the Central government to compulsorily retire a government servant who has put in certain years of service after giving him three months’ notice. This provision has been held to confer a very wide discretion on the government to retire a government servant without giving him a hearing and so it is an administrative power.
The Requisitioning and Acquisition of Immovable Property Act, 1952 authorises the Central government to requisition private immovable property for purposes of the union and this term is not defined in the act and so the central government has a large discretionary power to requisition private property for any purpose deemed necessary by it.
A ministerial function is one where the authority has a duty to do a particular thing in a particular way. Such actions are however exceptional. In most administrative actions, the administrative authority has the power either to act or not to act in one way or the other. This power to act or not to act in one way or other is called Discretionary power.
Discretionary powers exercised by administrative and legal authorities are permissive, and not binding. These powers are granted to these officials by statute or delegation. Discretionary powers do not impose an obligation on a decision-maker to exercise them or to exercise them in a particular manner.
Administrative agencies must exercise discretionary powers in accordance to legal requirements. Discretionary power must be used reasonably, impartially and avoiding oppression or unnecessary injury.
Generally, administrative agencies are given broad discretion to exercise their administrative authority. Generally, statutes expressly confer right to exercise discretionary power to administrative agencies. However, administrative agencies’ duties necessarily include the right to exercise discretion. Reason for granting discretionary power to administrative agencies is because they possess experience and specialization in a particular area. This experience and specialization help agencies in making decisions in the agencies’ area of expertise.
Administrative agencies are provided with discretionary power to ascertain place and time to hear and decide matters that come before it. Agencies have the power to prosecute or enforce matters through civil or criminal process.
Administrative law judges have discretion to abstain from participating in a legal proceeding due to a conflict of interest of the adjudicator. Abuse of the discretionary power can be alleged only to reverse a decision and not to allow it. In addition to that, an adjudicator has power to decide whether or not to impose a sanction.
There are at least four good reasons for conferring discretion on administrative authorities:
(a) The present-day problems which the administration to called upon to deal with are complex and varying nature and it is difficult to comprehend them all within the scope of general rules.
(b) Most of the problems are new, practically of the first impression. Lack of any previous experience to deal with them does not warrant the adoption of general rules.
(c) It is not always possible to foresee each and every problem but when a problem arises it must in any case be solved by the administration in spite of the absence of specific rules applicable to the situation.
(d) Circumstances differ from case to case so that applying one rule mechanically to all cases may itself result in injustice.
It could be inferred that the use of discretionary power of the administrative authorities is very important for the fulfilment of their functions but the exercise of this discretionary power should not be unguided and uncontrolled. It has to be limited by certain methods so that they do not become unguided and in turn violate the actions of the administrative authority.