Use discretion with reason

Use discretion with reason
Highlights

Whenever a rule or a provision of a statute confers discretion, the same is expected to be exercised carefully and after due deliberation. Exercise of discretion is not to be carried out whimsically or upon fanciful notions entertained by the authority. It is to be guided by reason

“Whenever a rule or a provision of a statute confers discretion, the same is expected to be exercised carefully and after due deliberation. Exercise of discretion is not to be carried out whimsically or upon fanciful notions entertained by the authority. It is to be guided by reason”, Justice Nooty Ram Mohan Rao ruled in a recent pronouncement of his. In a judgment that reiterates certain basic tenets of administrative law that the judge argued with great felicity when at the Bar, he returns to state them in the backdrop of repeated need to remind the administrative wing of the Executive that all power under a constitutional form of the government is about it being limited and hemmed with conditions. It is indeed unfortunate that discretionary power is often misunderstood at space for discrimination. The reminder could not have come a day late.

Justice Ram Mohan Rao was dealing with a case where the licence of a retail liquor shop was changed from one place to another. On challenge by a competing retail licence holder, the judge made clear that he had no fundamental right to carry on business in the trade and therefore the writ petition was dismissed. However, the judge did not get literal and went on to deal with the jurisprudence of the exercise of such power. Stating the known phenomenon that the line between administrative and judicial orders is dwindling he pointed out that even administrative decisions must be informed by reason.

“It is not possible to lay down accurately or with any precession what would constitute a reasonable ground or justification for a shift in the licensed premises. No such exhaustive list of circumstances can legitimately be conceived or provided for. It all depends upon the prevailing facts and circumstances. Therefore, discretion has been vested by the rule making authority in the hands of the Commissioner to consider and accord the necessary permission in respect thereof.” Not just with the instance of the power vested in the Commissioner of Excise but in the general tenor of such power the judge pointed out to the responsibility of the administrative authority to exercise to support such exercise with reasons. “Reasons behind every exercise offer the soul and substratum of that very exercise. The fairness of action gets reflected in the reasons. They not merely bring out clarity and transparency but also offer the necessary shield of vigilance against arbitrary exercise of the powers. Exercise of discretion is not made to depend upon the subjective satisfaction of the authority. It is the objectivity behind the exercise which brings out the rationality through the reasons assigned as to why such a decision was taken. Reasons are the sign posts of good governance.

Reasons leave behind footprints as to the lines on which the mind of the competent authority came to be applied”.

This repeated stance of the courts, notwithstanding administrative authorities while dealing with quasi-judicial powers or for that matter even administrative powers indulge in one line orders and reflecting the exercise of the power rather than the reason for doing so. Hopefully, the judgment would come as a warning to erring officials who misunderstand exercise of power to the manner of its exercise. Justice Nooty Ram Mohan Rao, on hindsight was not required in the context of the matter to deal at such length with the matter. The effort obviously was to ensure that the administrative authorities exercising discretion do so with a sense of responsibility and are not products of command performances.

“Time and time again the Constitutional Courts have been reminding the authority entrusted with the task to speak his mind out by assigning reasons for the decision arrived at.” Surely the reminder is seeped in hope if not a stern warning.

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