Abstract

The principle of administrative discretion is a fundamental aspect of modern governance, enabling authorities to respond with increased flexibility and in a manner that is tailored to specific contexts. But without serious scrutiny of that discretion, arbitrariness, corruption and maladministration spread. This paper studies the dynamics of the abuse of discretion in India in terms of its relationship particularly with the institutional protections of the Ombudsman system i.e. Lokpal and Lokayuktas.

This paper charts the conceptual history of administrative discretion & investigates its abuses with regard to the lawfulness and constitutional rights – especially that of Articles 14 and 21. It also examines the establishment of the Indian body of Ombudsman at the national level, through a historical perspective focusing in particular on the Lokpal and Lokayuktas Act of 2013 and operationalisation, post 2015.

The study also highlights the influence of the judiciary in curbing discretionary abuse via cases of precedent such as E.P. Royappa v. State of Tamil Nadu and Maneka Gandhi v. Union of India, which expand the sphere of judicial review. Moreover, it takes a new look at post 2015 developments, such as institutional difficulties, appointment delays and threats over independence and efficiency.

In terms of doctrinal and critical, the current legal and institutional frameworks examined in this paper can be seen as having taken into consideration to some extent the sufficiency with which protection against discretion abuse is guaranteed under law. It concludes by acknowledging the gaps of ability to enforce, and making suggestions for reform to improve accountability, transparency and governance in the Indian system of administration.

INTRODUCTION

Administrative law regulates the exercise of power through administration in administrative institutions by public authorities and provides that an exercise of power must occur in conformity with legal and constitutional provisions. A central aspect is administrative discretion, in which powers may be exercised as opposed to a legal duty. While discretion is key to good governance, however, abuse of discretion can lead to arbitrary behaviour and overreliance.

“In a democracy like India that we enjoy vast political freedom of law and the rule of law, the absence of that power of discretion will always undermine the position of those that underwrite, and guard against threats to, democracy, and it would be virtually impossible for every one of that. No effective checks were in place and therefore the vulnerabilities of corruption, bias and in violation of basic rights have been exacerbated. In response to these concerns the Indian law has evolved judicial review and institutionally entrenched safeguards (Ombudsman).

The establishment of Lokpal and Lokayuktas marks two major steps towards ensuring administrative accountability. These two bodies constitute an independent branch of the public authority that investigates complaints made against public officials with their problems of maladministration and corruption as well as those complaints made by other public officials.

The nature and seriousness of misuse of administrative discretion in India’s system, the checks and balances that can be set up to prevent its abuse, and what role the Ombudsman mechanism owes–the emphasis of this article has been on this point since 2015. It is also an effort to examine whether or not the existing system effectively manages administrative efficiency and is itself transparent and responsible.

CHAPTER 1: ADMINISTRATIVE DISCRETION: DEFINITION AND ORIGIN

Administrative discretion Administrative discretion refers to the ability to judge or make decisions based on a set of laws. Nowadays, governance in a modern welfare state like India becomes multifaceted socio-economic decisions and multiple problems to be solved — political as well as regulatory issues — which means the legislature cannot predict an everchanging environment and makes rules and policies that might be inappropriate. Discretion is a tool that administrative officials use to adapt their activity to various situations and in doing so, be effective.

The root risk: more discretion = more abuse. Do not confuse discretion with arbitrariness.

It contains legal principles of reasonableness, proportionality and fairness to which it is constrained. Abuses of discretion include the failure of a government to discharge its obligation to act within the law rather than use its power for unlawful ends. Likewise, misunderstandings and misbehaviours are committed and misbehaviour- acts or omission of the law in bad faith (mala fide), which is unrelated and indifferent. Such things undermine the rule of law and public confidence in governance.

– Indicators of abuse: Bad faith, unreasonable justifications, failure to use reasoning, and randomness.

But the Indian legal system has always been a central player by defining the border of power and administrative authority. While in this matter of E.P. Royappa v. State of Tamil Nadu,^[1] the Supreme Court pointed out that arbitrariness is contradictory to equality by stating that excess exercise of discretion is a breach under Article 14 of the Constitution. In that case , it showed how the non-arbitrariness doctrine had changed to administrative action and how this contrasted sharply with a strict characterization of equality.

In further application of that principle, the Court expanded the content of Article 21 in Maneka Gandhi v. Union of India^[2], stating that “Any administrative action affecting personal liberty must be just, fair and reasonable.” The ruling enshrined substantive due process as an object of Indian constitutions, which places the need for procedural and substantive equity to be fulfilled in the exercise of discretion.

• Judicial development: formal legality → fairness, reasonableness, due process.

That has in turn fortified the rule of reasonableness, via judicial review designed to curtail the use of arbitrary powers. Courts will look to determine whether the decision-making authority has acted well within their authority, has exercised due process and has considered relevant factors. If any element is absent it will be dismissed as an abuse of discretion.

• Control mechanism: What happens at trial: Judicial review confirms legality, rationality and procedural propriety.

Although safeguards for the judiciary, the large number of administrative actions of the courts so far exceeds their capacity that it is difficult to find every case of abuse that leads them into resolution. It also demands additional mechanisms such as the institutions of the Ombudsman, vigilance bodies, internal administrative controls.

Its proper use must comply with constitutional order, juridical doctrines and institutional monitoring. For administrators is a delicate balance: You’d like some leeway, but then you don’t want to allow this leeway to be used arbitrarily or unfairly

1.2: ABUSE OF ADMINISTRATIVE DISCRETION – JUDICIAL AND DOCTRINAL ANALYSIS

The improper use of administrative discretion has long been a top concern in administrative law; the potential for unaccountable, arbitrary and discriminatory action is a serious concern as unchecked discretion undermines fundamental rights. For that reason the judiciary is the single most important actor for delineating the boundaries of decision-making by constitutional regulation. The mechanism through which administrative authorities have exceeded or abused their powers is the judicial review.

• Judicial role: Courts are protectors against arbitrary and abuse of discretion.

Non-arbitrariness is the foundation of judicial control over discretion. In E.P. Royappa v. State of Tamil Nadu^[3], the Supreme Court held that arbitrariness is the very antithesis of equality, thereby making any arbitrary administrative action violative of Article 14. [1] This judgment signifies a seismic change in Indian administrative law, which has enlarged judicial review from a simple question of legality to one also of fairness and reasonableness.

In expanding this doctrine further, the Supreme Court in Maneka Gandhi v. Union of India^[4] stated administrative actions must be “right, just and fair” and not arbitrary, fanciful or oppressive. The case had ushered substantive due process in Indian jurisprudence: the discretion of officials shall conform not only to procedural fairness, but to substantive fairness as well.

[1] E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3.

[2] Maneka Gandhi v. Union of India, (1978) 1 SCC 248.

[3] E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3.

[4] Maneka Gandhi v. Union of India, (1978) 1 SCC 248.