Discretion means the power to decide or act according to one’s judgment. Indian law grants some discretionary powers to administrative authorities. Indian law, as it exists now, lays down broad limits within which an administrative authority is expected to function.
For example, a statute confers discretion when it contains conditions, such as:
- If the authority is satisfied.
- If it appears expedient.
- If it is in public interest.
- If it is reasonable and just.
Indian Law: What is Administrative Discretion?
When Indian law vests discretion with an administrative authority, it is termed as administrative discretion. However, the exercise of discretionary power should not be arbitrary or vague, but it shall be in accordance to law. In case the authority misuses his discretionary power, it becomes a ground for judicial scrutiny.
Indian Law: Does Administrative Discretion Infringe Fundamental Rights?
The fundamental rights granted to us, under the Indian law, tend to limit the legislative and executive powers of the government. In case an authority is bestowed with discretionary powers that may affect a citizen’s fundamental rights, the courts are authorized to strike down such power.
The grounds on, which the exercise of discretionary power, can be strike down are, such as:
- Abuse of discretionary power.
- Non-exercise of discretionary power.
A famous case, Air India v. Nergesh Meerza, A.I.R. (1981) S.C. 1829, the normal age of retirement of an air hostess at the time was 35 years. Based on a regulation of the corporation, the managing director was authorized to increase the retirement age, up to 45 years. The managing director was empowered to use discretion based on his personal opinion. Further, he was not required to record any reasons pertaining to the decision. The absence of specific guidelines in the regulation resulted in discrimination and biased approach in the exercise of such discretion. The court held that it was a clear case of official arbitrariness and struck down the scope of regulation where the managing director could extend the services of an airhostess.
When an authority is conferred with discretionary power, it enjoys freedom to take action and the courts have only limited power of review in this regard. The court can only decide whether the discretionary power was legal or not. This can pose a serious threat to individual liberty.
What do you say? Do you believe that discretionary power should be critically reviewed by courts in India?
