M J Antony: Care with discretion

State officials must be judicious in exercising discretionary powers

A welfare state dispenses enormous benefits in many forms — contracts, licences, services, jobs, cash grants and security benefits, among other things. Apart from these traditional forms of wealth in the hands of the state, new ones are being added like air waves, spectrum, time and space. These are purportedly distributed in public interest by political leaders in power and officials. But the recent scams highlight the misuse of their discretionary powers.

Even as the nation is all keyed up about new and effective institutions to tackle this problem, it is the traditional courts that still trigger action against venality in public life. The contours of the power of a judicial review are being slowly and steadily expanded and the exercise of executive discretion is being closely examined by the courts.

 

The Supreme Court had the occasion to reinforce this effort in the recent case, Akhil Bhartiya Upbhokta Congress vs State of Madhya Pradesh. The state government allotted 20 acres of land in Bhopal district to a newly formed trust without any advertisement, excluding other eligible organisations. When the allotment was challenged in the high court, it upheld the government’s action. On appeal, the Supreme Court quashed the government notification as illegal and discriminatory. The government, it said, had no “well-defined and rational policy” for allotting the land and abused its discretionary power.

“The allotment of land by the state or its agencies,” said the judgment, “which carry the tag of caste, community or religion is not only contrary to the idea of secular democratic public but is also fraught with grave danger of dividing society on caste and communal lines. The allotment of land to such organisations on political considerations or by way of favouritism or nepotism or with a view to nurture the vote bank for future is constitutionally impermissible.”

The court conceded the power of political entities and officials to exercise discretion, but stressed that it should be used in a “rational and judicious manner without any discrimination against anyone.” In the constitutional scheme, no functionary of the state has “absolute or unfettered discretion”. Such a claim is against the doctrine of equality enshrined in the Constitution and is the antithesis to the concept of rule of law.

In an earlier judgment, Kasturi Lal vs State of J & K (1980), the Supreme Court asserted that it had a duty to keep governmental action within constitutional limits and condemn any transgression of law. It said: “It is a matter of historical experience that there is a tendency in every government to assume more and more powers, and since it is a common phenomenon that the legislative check is getting diluted, it is left to the court as the only other reviewing authority to be increasingly vigilant to ensure observance with the rule of law and in this task, the court must not flinch of falter.”

Another trend is the prevalence of standard form contracts with unreasonable terms. The government or the dominant party asks the weaker one to sign on the dotted line. In the case, Shrilekha vs State of UP (1991), the Supreme Court stated that judicial review must be exercised in such cases as “they are not negotiated contracts but standard form contracts between unequals.”

In dealing with the allotment of petrol pumps under discretionary quota, the Supreme Court stated in the judgment Common Cause vs Union of India (1996) that, “it is absolutely essential that the entire system should be transparent right from the stage of calling for applications up to the stage of passing orders of allotment.”

When distributing state largesse, the government must declare the predetermined criteria and publish specific rules or guidelines. Following the principles laid down in earlier judgments, the court stated in the Bhopal case that treating land allotment as a “private venture” is liable to be treated as arbitrary, discriminatory and an act of favouritism and nepotism, “violating the source of the equality clause embodied in Article 14 of the Constitution.”

However, the penchant of those in power to ignore these norms – as succinctly stated in several judicial pronouncements – seems irresistible. Flouting these rules leads to lawsuits at different levels of the court hierarchy, with the government getting the dubious credit for being the largest litigant in the country. Most individuals and organisations give up and only the persistent ones with stamina and finance can endure the agony of fighting up to the Supreme Court level. On the other hand, the government and its officers are not handicapped by such considerations. Those who abuse power find greener pastures after an election; officers retire, and the cost of litigation is passed on to the people. It is this vicious circle that generates public anger and creates agitations, like the one India saw in the past few weeks.