M J Antony: Better part of discretion
Power of choice must be used prudently
Laws confer discretionary powers on all authorities. The challenge is how to keep them within bounds. The Queen of Hearts could shout, “Off with her head!” Jurists have nicknamed certain provisions in modern statutes that grant excessive discretion to the executive as “Henry VIII clauses”. In more recent times, civil society and judicial review have tried to contain such unchartered power.
The Supreme Court has dealt with this prerogative in several cases. One of the earliest cases tackled discretionary allotment of the first small car, Maruti 800, when it was manufactured by a government undertaking. The court laid down certain criteria for such award of state largesse to politicians and judges. This was followed by another decision on allocation of government houses. In the past few months, the court quashed award of prime land from the discretionary quotas of chief ministers.
The latest judgment discussing discretionary powers of the executive dealt with the grant of funds from the Chief Minister’s Relief Fund to rape victims. Some were awarded Rs 10,000, while a few got up to Rs 5 lakh. A petition was filed in the Rajasthan High Court alleging discrimination. The high court found substance in the charge and even changed the rules to be followed while distributing relief so that every victim received equal amount. The state appealed to the Supreme Court and it struck down the high court judgment (State of Rajasthan vs Sanyam Lodha).
The reality is that the arms of the state cannot be deprived of the power of choice. The context is everything, according to the court. “All functionaries of the state are expected to act in accordance with law, eschewing unreasonableness, arbitrariness or discrimination,” explained the judgment. “They cannot act on whims and fancies. In a democracy governed by rule of law, no government or authority has the right to do what it pleases. Where the rule of law prevails there is nothing like unfettered discretion or unaccountable action.”
But discretion cannot be ruled out. An authority or functionary of high standing can be vested with this power. Even when huge funds are placed at their disposal for disbursal in unforeseen circumstances they can use discretion. For instance, intelligence agencies and security organisations are provided with funds to mount clandestine operations. Relief funds are created to help people in distress. The prime minister or a chief minister can choose the recipient, the amount of relief and the timing of the grant. “When discretion is vested in a high public functionary, it is assumed that the power will be exercised by applying reasonable standards to achieve the purpose for which the discretion is vested,” according to the court. A person challenging misuse of discretion must prove that its exercise was arbitrary, mala fide or by way of nepotism.
If things were so simple, there would not have been such sizeable case law and discussion on the extent of discretion. The snag in the laws is the inclusion of phrases like “as the minister/board thinks it fit/necessary/expedient, and according to its satisfaction.” Such expressions open gateways for misuse of discretion, as in the case of land allotments in recent times. This happens in all democratic countries and the courts have had to control misuse by invoking the power of judicial review.
In an English case, the local authorities refused to provide certain newspapers in their public libraries. The reason was that those newspapers were politically hostile to the regime. The court ruled that the authorities had a duty to provide a “comprehensive and efficient library service” and ulterior political objective was irrelevant.
Negligent or careless exercise of discretion also has been frowned upon by courts. Moreover, failure to exercise discretionary power when it is called for is also breach of duty by the executive. In one case, the local authorities, said the rules, “may provide lighting” on roads “as they think necessary.” The court ruled that “may” must be read as “shall” in certain circumstances when a thing is to be done for public benefit or in advancement of public justice. In many cases, the word “may” has been read as “shall” by the courts.
It is not just executive discretion that should be watched carefully. The judiciary, which is the last resort of the citizens, also has vast discretion. The Supreme Court, for instance, has the power under Article 142 of the Constitution to pass any order to do “complete justice”. It can also reject appeals at the threshold without giving reasons under Article 136. The civil and criminal procedure codes are replete with clauses that grant a great deal of discretion to the subordinate judges. These are scary imponderables. It reminds us that a democracy does not live by written laws alone; what matters is how they are interpreted and enforced.