There are limits to discretion
This article originally appeared in CRI content has now been subsumed in The views expressed here are personal and do not necessarily reflect those of the editors of

‘Discretion’, declared the British Jurist Lord Halsbury ‘implies that something is to be done according to the rules of reason and justice, not according to private opinion; according to law, and not humor. It is not to be arbitrary, vague and fanciful, but legal and regular’.

This certainly is not the description of discretion that some journalists would have us believe. For much of the past one week, many commentators have sought to compartmentalize the 2G scam, back in vogue after the release of a note prepared by the Ministry of Finance. Their interpretation is convenient and simple, perhaps too convenient for some, many would say. According to this argument, the 2G scam can be neatly divided into two phases, I) the policy making (discretion of the Govt. of course) phase   and II) the implementation phase.

Fair enough, many will say. Policy making is a matter of discretion & opinion of the person making it and any opinion on the policy maker’s opinion is a mere value judgment, a subjective debate depending on one’s worldview. Surely a policy maker cannot be held legally, least of all criminally culpable for policy making which faulty or bad, as it may be, does not invoke legal liability.

Except that administrative law does provide for judicial review of administrative/executive action.

What is Judicial Review?

It is a procedure by which a court can pronounce upon the validity of an action taken by an executive authority. Needless to say, the Govt. & its member and ministers are members of the executive. Therefore another argument being used about the ‘interference’ of the judiciary in the ‘policy-making’ domain of the executive is compete hogwash.  There is nothing like unfettered discretion, so absolute that it cannot be reviewed by a court of law.

Anyways, the 2G matter is in the Courts besides the intention of this post is not to make a case for or against anyone as this author is simply not competent to do so but to merely state some of the principles of administrative law & judicial review, both of which are relevant to the events of the 2G scam.  Hopefully after reading these general principles, the readers might me able to make clearer sense of the lines between ‘policy-making discretion’ and legal liability, when the lines get blurred, the grounds for judicial review and so and so forth. Therefore this post is about the public matter of policy making discretionary powers and the position of law on them and not on specific event of the 2G scam.

Grounds for judicial review of administrative action:

  1. Unauthorized delegation:  If authority is vested in a particular post to take discretionary action, then it is the holder of that particular post only who can exercise the discretion. The power cannot be sub-delegated to another authority.
  2. Checks & balances on discretion: Whenever discretionary power is vested in a post, the holder of that post must exercise its discretion in each and every case on the merits of that individual case. The authority cannot make a ‘one size fits all’ policy by making general rules applicable to all case. Each case must be judged on its merits.
  3. Exceeding jurisdiction: Discretionary power must be exercised within its legal boundaries and must not become ultra vires of the statute.
  4. Non-application of mind: When discretionary power is vested, the person exercising it must do so after applying his mind to the facts and circumstances of every individual case.
  5. Arbitrary action: If the action taken is arbitrary, irrational, perverse, it can be struck down by the relevant court.
  6. Colourable action:  Any fraudulent or colourable exercise of discretionary power is liable to be set aside by the court.
  7. Natural Justice: Rules of natural justice must be observed.

All the principles mentioned above serve as important checks & balances on discretionary power vested in several executive posts. Discretionary power regarding policy making, is not a license to be used in an arbitrary and biased manner according to one’s whims and fancies and personal interests. The readers are intelligent enough to ascertain as to whether the principles mentioned above were observed in recent public events.

Discretionary power is not absolute power, it merely implies the power to make a choice between two or more sets of ‘policies’ or ‘actions’ and to quote another jurist Coke, ‘discretion is a science of understanding to discern between falsity and truth, between right and wrong, between shadow and substance- and not to do things according to an individual’s personal whims or opinions’