The Changing Administrative Discretion In India
By Ayushi Gupta
The historical paradigm of patrimonial Administrative Constitutionalism discourse is significant in the history of the development of Indian rulemaking. The changing societal context has paved the way to interpret the law from the lens of Administrative constitutionalism. In a democratic country, the foundational principles guiding the government is transparency and accountability. Public administration is seen through the prism of rules of law and the fundamental rights guaranteed to us under Part III of the Constitution of India. Due to increasing state functions, the abandonment of the concept of Laissez Faire and the transformation of the police state to welfare state paved the way on emphasizing the needs to substantiate the administrative discretionary power.
The powers of administrative agencies are multifaceted, quasi-judicial functions, quasi-legislative functions, managerial function, etc. Earlier, it was believed that discretion bring with itself arbitrariness but this approach has changed over the passage of years. It has become pertinent to have administrative agencies exercising the powers conferred upon them by the constitution or statutes. In the changing societal context, there has been an exponential growth in the functions which has to be administered and for which, a delegation of powers is an essential element. Executive agencies are regulatory bodies, in order to reinvigorate the operation of law they require certain discretionary powers to straitjacket the individuals contravening with the provisions of law. It is known that with power comes the abuse and therefore, the law made limits to exercise these discretionary power.
These limitations confined the executive authorities to perform their function in those walls and anything beyond which will result in ultra vires decision. The executive while performing the functions using discretionary powers have to establish the basis of use of such powers and has to justify the reasons as to why they have decided to undertake such action. This can be termed has ‘ Rule of Reason.’ Any abuse of power without a reason and by their own whims and fancies will be held to be invalid. The private opinion is not an ingredient in regulating the laws, it is the statute, the constitution, Principles of Natural Justice, which are required to be kept in the loop while adjudicating the functions. Though the decision made is according to the shreds of evidence put forth but it must be in consonance with the policy framework.
Administrative discretion is not specific in nature, it is generic. The discourse of discretion can be applied in cases where there is ‘public interest’,’ necessary for good governance’, ‘public purpose’ or for ‘public safety.’ The connotation cannot be restricted to a particular area, it is discrete and depends from case to case. And this is one of the reasons why the misuse of power cannot be undermined. Therefore, the matter of the moment is the controversy as to how wide discretionary power can be authorized to the executives in changing time? Due to the complexity of state affairs, it has become a hassle in the conferment of discretionary power. It has become a tough task for the courts to allow the executives to administer freedom to accomplish the purpose of the act without letting them act against principles of natural justice. Judicial scrutiny has also been mushrooming due to increasing functionaries of the state.
It is believed that the arrival of the theory of Administrative Constitutionalism is quite nascent but the legal scholars have researched that the history has shed the light onto this conception earlier as well. Constitutionalism means limited government or can be referred to as a limitation on the powers of the government. It is the antithesis of the arbitrariness. Rule of Law was established and is the essence of the Constitution which highlights that no one is above law. Law is supreme. The constitution is mentioned to be the law of land and all the powers like judicial review, separation of powers, habeas corpus are a subset of it. The discourse of constitutionalism is that it recognizes the essence of powers distributed to the government but at the same time insists on limiting those powers as well. Government derives its powers for the fundamental law which is the constitution and it performs certain behavior within the framework of that fundamental law with certain limitations on its behavior. Though some scholars believed limited sovereignty is incoherent. I believe that the prevalence of constitutionalism is India has helped thrive the country from the worst situations. Therefore, Administrative constitutionalism refers to have limited power of the executive in performing functions though it confers the powers to interpret the law. The courts have resisted the idea of administrative constitutionalism as the only interpreter of law in India is the courts. Administrative agencies also interpret the statutes and confer power in implementing the same. I believe we should embrace the idea of administrative constitutionalism as this would lessen the burden of the courts in performing the function which can be performed by the alternative authority. To remain viable to the changing societal scenarios we should not be struck to the constitutional texts. Judiciary keeps on advancing the horizons of the meaning of the constitutional with the needs of the public at large. Though the judiciary has limited knowledge about the technicality still has power conferred to them by the constitution similarly, with rich technological knowledge it is competent for the administrative agencies to confer upon the same powers as well. Constitutional experimentation is worth exploring with the changing scenarios in India.
I believe the premise of administrative discretion lies on the rule of reason for the exercise of powers. If the power conferred to the administrative authority can be justified and the standards are prescribed under the statute which has to be followed and in case of emergency, the concept of ‘subjective satisfaction’ is involved the power cannot be said to be invalid per se until and unless proved contrary. The abuse of power by the executive must be scrutinized efficiently. There must be no arbitrary diffusion of power it must be checked and balance. Moreover, just because there is a possibility of abuse, does not constitute that the power must not be delegated. It must be in the Loop of the constitutional or statutory framework.