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Discretionary Powers of the Government

Definition

Professor Harold Laski has defined discretionary power as

..that authority of the executive whether in matters of substance or of procedure or both, which it is free to exercise as it thinks fit.

Introduction and Definition

Sources

01

It may be conferred on a person or a body of persons by the action of the legislature by statute, or

Sources

Discretionary authority may proceed from two sources.

but whatever the source, it is exercised in both cases with impunity from outside interference.

02

it may be based upon

convention;

No administrative system, however detailed may be the statutory law or the superior rules and regulations governing its work, can be expected to function without recourse to the experience, the opinions, and the commonsense of those who are operating it.

Need for Discretionary Power in Government

E.g.- Head of the Government

The amount of discretion allowed to the administrative agents must of course vary, - as a matter of fact, it generally diminishes as we proceed from the higher to the lower ranks,

but it has been shown almost indisputably that a certain amount of discretionary authority has necessarily to be conceded to those who are actively engaged in government work.

Need of Discretionary Powers

Honours and Appointments

  • in the grant of honours and titles,

  • and in the appointment, promotion, and removal of public employees.
  • making of treaties and of war and' peace,
  • the command of the army and the navy,
  • the control of foreign relations

Political Powers

  • Another subject in which executive discretion has been traditionally prominent is the function of police or law enforcement.

Law and Order

As the State has emerged from the classical antiquity type to the feudal, and hence to the absolute monarchical, and finally to the democratic type, the needs and the purposes of administration have varied.

The general character of administration has always been governed by the physical basis of State organization, by the prevailing level of 'soclel and cultural organization, by the development of technology, by theories of the functions of the state, and by the more immediate governmental and political traditions and ideals

Varying Quantum of Discretionary Authority

Laissez-faire

In England in the 17th century, in France in the 18th century, and in Germany in the 19th century, there grew up the philosophy of Laissez-faire, attendant upon the first flush of the Industrial Revolution, which believed that the function of the State did not consist in the regulation of social activity but rather in allowing it to prosper as freely as possible.

Mercantilism

Mercantilism believes in the public regulation of agriculture and industry, and the control of the fiscal system so devised as to control a favourable balance of trade. This can only work through an administrative system of considerable magnitude.

Separation of Power

John Locke

Machiavelli

U.S. Constitution Founding Fathers

Present Day growth of Discretionary Authority

  • The growth of discretionary authority of the administration in the modern State is due primarily to the progressive extension of governmental functions.

  • The character of government has changed in recent times mainly due to reasons, which in themselves were the outcome of the Industrial Revolution.

  • Most of the new functions of government are purely technical, and therefore in the formulation of laws concerning them, expert knowledge is necessary, which Parliament, constituted as it is, does not possess.

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