Administrative Discretion delegation : ↓Choosing amongst various options, {Amount of power to be used under in any authority provided}.
Meaning of Discretion
The meaning of Discretion means, Choosing from amongst the various available alternatives with reference to non-predetermined.
What are the words in Drafting Techniques:-
- Adequate { of you think fit / of you deems fit}
- Beneficial
- Appropriate
- Competent
- Prejudicial to safety
- Detrimental
- Public purpose
- Expedient.
Two types of Delegation (Control over), Administrative law
- Control at the Stage level of Delegation & Discretion.
- Control at the stage of Exercise of Discretion
- Judicial Behaviour & Administrative Discretion.
- If a person is doing his work at his authority and position it is Exercise of Discretion.
- If a person is transferring this duty ar work with authority to some other person it is a of Discretion. Delegation.
Article 14 of constitution right to Equality
Case: State of west Bengal v/s Anwar Ali sarkar AIR, 1952, SC,
- Judiciary confers to the state government if you have any case which needs speedy trial. It will directly go to the special courts, it was wrongly exercise the delegation because it was clear that there is a hierarchy of the courts and things should be run property.
Case: State of Punjab v/s khem chand
- It was held that a person can not use their authority in a arbitrary manner because one of the DM in a Punjab lend a private truck of the person khemchand and after that did not pay him sufficiently.
Article 19 right to freedom, discretion adminstration law
Case: Himmatlal K. Shah v/s Commissioner of Police, 1973
- In Bombay Polic Act, 1951, a police have a right to give or denial the permission for the gathering of people in streets, or the public meeting. It was held that even if you have a discretion but you are answerable and reasons should be valid.
At the Stage of Exercise of Discretion
- Formulation regarding the Exercise of Discretion are grouped into two broad generalisation:-
- Authority is deemed not to have exercised its discretion at all or failure to exercise discretion.
- Authority has not exercised its discretion properly or excess ar abuse of discretion.
Doctrine:- “delegatus non potest delegare”
Meaning: A delegate non potest delegare, A delegate Cannot delegate this power further.
Case: Purtabpore Co. Ltd. v. Cane Commissioner of Bihar (AIR 1970 SC 1896)
You are not authorised to use your power in a wrong way, 99 villages which were restricted by the plaintiff to manufacture, sugarcane by the demand of CM.
- Improper use of Discretion— India— (Eng.law),
- → Unreasonableness of the Discretion (exercise)- USA (Codified).
Case: Indian Ra Railway Construction Company Limited v/s Ajay Kumar, 2003
- If you are the authority to do work you should have to entertain that authority.
How to follow the Discretion (Rule making)
Delegated Legislation—> Subordinate legislation—-> Because Supreme Central Authority delegated its power to the sub-ordinate Authority-(State—> sovereignty) to (subordinate). 1973 to 1977 the first legislation was delegated, 302 new rules and regulations were made ↳ new laws by Committees, Councils, Panels.
Scope of Delegated Legislation
- Wide General Powers
- For Small, small acts, parliament or Legislation will delegate its power to its subordinate, not to everyone it can delegate its power, but to its to own sub-ordinates.
- Because they don’t have soo much time to make laws on small powers so they widening their general powers.
- For Small, small acts, parliament or Legislation will delegate its power to its subordinate, not to everyone it can delegate its power, but to its to own sub-ordinates.
- Taxation
- All the laws related to taxation are made by the subordinates.
- Power to varry Acts of Parliament :
- Ammendment related rules, it may ammended because if any laws does not have effects.
JUDICIAL BEHAVIOUR/ CONTROL Administrative DISCRETION
- Delegation of Discretion-
- Right to Equality
- Right to freedom
- Exercise of Discretion
- failure to Exercise
- Excess ar Abuse Discretion.
Legislative Control Administrative discretion
- Direct Control: Parliament make the laws directly, through two legal tests:
- ⇒ Special Control- By special authority laying off,
- Negative
- Simple
- Affirmative/Positive
- Mandatary Testing
- Directory Testing.
- ⇒ Special Control- By special authority laying off,
- Indirect Control:- In the societ so it may be amended by Subordinate, but it will only ammended declared by the Parliament, And Henry be clause viii will always to be remembered.
Technicality- Who are law maker are the only person or department who knows how to and where to make rules regarding to what?
Emergency Powers – By some natural emergencies in the society not as a Country, That we have to quick change the rules as per the requirement of the society.
Types of Delegated Legislation
- Title Based: while making any Act; Rules, Regulations, Act enact, written in General clauses Act, 1897.
- Rules: Theory
- Regulations: Implemented
- Orders: Quasi Judicial, legislative decisions
- Bye laws: Rules made by semi governmental legislations.
- Directions: Central Government asked to state Government to make laws regarding some regulations by some legislation.
- Central government if doing anything then till advised State Government will not interfere in it.
Direction
| Constitution gives power to Central government to give directions to the State government. | Direction is a term of Administrative rule making under the authority of law or rules made there under. |
Schemes:- Situation where law authorises administrative agencies to lay down the work. Framework within which the detailed administrative actions is to proceed.
Discretion Based / Condition Based, Administrative law
Under the option (Contingent /Conditional Legislation) the authority do any work.
Case Field V/s Clarke 143 US 649, 1892:- President have the discretion to give free to the citizens, the negligently distributed some of the products which lends the country at downfall, Congress/Court held that you cannot do any arbitrary act.
Purpose Based Legislation, Discretion adminstration law
- Enabling Acts : UGC makes rules or Acts to present and manage, but the management needs to present it in such a manner.
- Extensions and Applicability of Acts,
- Dismissal or suspension of any law,
- Alteration of Acts,
- Taxation: Taxing acts.
Authority Based classification (Sub delegation)
If you delegated your power it should be delegated to the superior authority.
Case: A.K. Roy v/s State of Punjab, 1986:- maxim- “delegatus non potest delegare.
You cannot delegate your power / authority untill it specifically mentioned in Parent Act.
Nature Based Delegation
Normal Delegation
| Positive Delegation | Negative Delegation |
| Where the provisions of the enabling acts are mentioned clearly. | Where the things are not clearly mentioned and have some exception for the acts. |
Exceptional Delegation
- Power to legislate on matter principle,
- The Power confirming such a wide discretion which is almost impossible to know the limits.
- Power to ammend the rule of parliament,
- Power to make rules without being challenged in the court of law.