Pages

Friday, December 21, 2012

What is the classification of pure administrative function?

Pure administrative function can be divided into three categories:
(a) Administrative discretion
(b) Ministerial action
(c) Administrative instruction

Administrative discretion:
In Layman’s language, discretion means choosing from amongst the various available alternatives without reference to nay predetermined criterion, no matter how fanciful that choice may be. A person in his will has discretion to dispose his property in any manner, no matter how arbitrary and fanciful that may be. But when the word discretion is qualified by the word ‘administrative’ has somewhat different overtones. ‘Discretion’ in this sense means choosing from amongst the various available alternatives but with reference to the rules or reason and justice and not according to personal whims. Such exercise is not to be arbitrary, vague and fanciful but legal and regular. (Lord Halsbury).
CJ. Coke says- Discretion is a science or understanding to discern between falsity and truth, between right and wrong and not to do according to will and private affection.
The problem of administrative discretion is complex. It is true that in any intensive form of government cannot function without the exercise of some discretion by the officials. It is necessary not only for individualization of the administrative power but also because it is humanly impossible to lay down a rule for every conceivable eventuality in the complex art of modern government. But it is equally true that absolute discretion is a ruthless master. It is more destructive of freedom than any of man’s other inventions (Justice Doglus). There for, there has been a constant conflict between the claims of administration to an absolute discretion and the claims of subjects to a reasonable exercise of it.

Ministerial action:
Ministerial function is that function of agency which is taken as a matter of duty imposed upon it by the law devoid of any discretion or judgment. Therefore, a ministerial action involves the performance of a definite duty I respect of which there is no choice, no wish and no freedom. Here, the high authority dictates and lower authority carries out. Collection of revenue may be one such ministerial action. Furthermore, if the statute requires that the agency shall open a bank account in a particular bank or shall prepare the annual report to be placed on the table of the minister, such action of opening the bank account and the preparation of the annual report shall be classified as ministerial.
When an administrative agency is acting ministerially it has no power to consult its own wishes but when it is acting administratively its standards are subjective and it follows its own wishes.

Administrative instruction:
Administrative instruction means power to issue instruction flow from the general executive power of the administration. In any intensive form of government the desirability and efficacy of administrative instruction issued by the superior administrative authorities to their subordinates cannot be over emphasized.  Administrative instruction’ is a most efficacious technique for achieving some kind of uniformity in administrative discretion and to manipulate in an area which is new and dynamic. These instructions also give a desired flexibility to the administration devoid of technicalities of the rule-making process.
Administrative instruction may be specific or general and directory or mandatory. Its type depends largely on the provisions of the statute which authorizes the administrative agencies to issue instructions. The instructions which are generally issued not under any statutory authority but under the general power of administration are considered as directory and hence are unenforceable not having the force of law.
If administrative instructions have no force of law but if these are consistently followed for a long time government cannot depart from it at its own sweet will without rational justification.

No comments: