Absolute and Wide Discretion, Discrimination and Article 14
Chapter Sixty-Eight
Syllabus topic 4, "Grounds of Review"
Pages 205 to 207 of 430
In one line
MU's quotation is right, and the reason it is right is that a power with no standard will be used differently on different people, which is what discrimination means.
In the wording a student can write in an exam: a statute or rule which confers an absolute or unguided discretion on an authority, without laying down any policy or standard for its exercise, is liable to be struck down under Article 14, because a power that can be exercised differently on identical facts is a power to discriminate; and an exercise of discretion which is arbitrary is for that reason unequal and unconstitutional.
MU's question
The University printed the sentence "Absolute and wide discretion may resulted into discrimination" and asked candidates to discuss the various grounds of judicial review in the light of recent judicial decisions in India. The quotation is the hinge of the answer: it is a proposition about Article 14, and the grounds are the answer to it.
Why the proposition is true
Take a section which says the Collector may grant a licence to such persons as he thinks fit, and says nothing more. Two applicants with identical qualifications apply. The Collector grants one and refuses the other. Nothing in the section has been broken, because the section imposes no standard. Yet two identical persons have been treated differently, which is precisely what Article 14 forbids.
So a power without a standard is a power to discriminate, and the vice is in the conferment and not only in the exercise. That is the sense in which absolute discretion may result in discrimination.
The two-stage answer
Stage one: the conferment. A provision conferring an unguided and uncanalised power is liable to be struck down. Air India v. Nergesh Meerza, AIR 1981 SC 1829, is the standard illustration: a regulation which allowed an air hostess's retirement age to be extended entirely at the option of the Managing Director, with no guidelines, conferred an unguided and uncanalised power and offended Article 14, and termination on first pregnancy was manifestly unreasonable and arbitrary.
The same reasoning strikes down a service regulation permitting termination without reasons and without enquiry: Delhi Transport Corporation v. D.T.C. Mazdoor Congress, AIR 1991 SC 101, where a Constitution Bench held that a naked and unguided power to terminate the service of a permanent employee without notice, reasons or enquiry is arbitrary, violates Article 14 and is opposed to public policy under section 23 of the Contract Act, and that such a provision must be read down where it can be and struck down where it cannot.
Stage two: the exercise. E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555, makes an arbitrary exercise unconstitutional in itself, because equality and arbitrariness are sworn enemies and an arbitrary act is implicitly unequal.
Absolute and Wide Discretion, Discrimination and Article 14
How a wide power is saved
By guidelines in the Act. A preamble, an object clause, or a section stating the factors to be considered can supply the policy that the operative section omits.
By guidelines made by the authority. A published policy cures much of the vice, because it makes the exercise predictable and reviewable, and departing from it then needs reasons: State of Jharkhand v. Brahmputra Metallics Ltd., decided on 1 December 2020.
By reading down. A court may construe a wide power narrowly so as to save it, which is what Delhi Transport Corporation says should be attempted first.
By procedural safeguards. A requirement of notice, hearing and reasons reduces the risk of arbitrary use, which is why Module III and Module II are connected.
A worked example
A State rule provides that the Director of Education may, in his discretion, permit a private school to charge such fees as he may approve. He approves a higher fee for one school and refuses an identical request from another in the same locality with the same facilities, giving no reasons in either case.
The rule is vulnerable at the conferment stage: it lays down no standard at all, which is Nergesh Meerza. The exercise is vulnerable independently: identical cases decided differently without reasons is arbitrary under Royappa and unequal under Article 14. And the absence of reasons is itself a ground on S.N. Mukherjee v. Union of India, AIR 1990 SC 1984. That is MU's quotation demonstrated in a paragraph.
Distinctions that carry marks
| Attack on the conferment | Attack on the exercise | |
|---|---|---|
| Target | The statute or rule | The order |
| Ground | Unguided and uncanalised power, Article 14 | Arbitrariness, Article 14; and the Module II grounds |
| Remedy | The provision is read down or struck down | The order is quashed |
| Authority | Nergesh Meerza; Delhi Transport Corporation | Royappa |
What this does NOT mean
It does not mean every wide discretion is unconstitutional. Width is not the vice; absence of any standard is, and the standard may come from the scheme of the Act.
It does not mean guidelines must be in the statute. They may be made by the authority, and a published policy is often enough.
It does not mean a court prefers rules to discretion. It requires that discretion be structured, not that it be abolished.
Quick revision
A power with no standard is a power to discriminate, so the vice is in the conferment as well as in the exercise. Conferment: an unguided and uncanalised power offends Article 14, as in Nergesh Meerza and Delhi Transport Corporation, and a court reads down before it strikes down. Exercise: arbitrariness is unequal and unconstitutional, which is Royappa. A wide power is saved by guidelines in the Act, guidelines made by the authority, reading down, and procedural safeguards.
Absolute and Wide Discretion, Discrimination and Article 14
Test yourself
1. Why is an unguided power a discrimination? Because identical cases can lawfully be decided differently under it, which is exactly the inequality Article 14 forbids.
2. What did Delhi Transport Corporation decide about a power to terminate without reasons? That a naked and unguided power to terminate a permanent employee without notice, reasons or enquiry is arbitrary, violates Article 14 and is opposed to public policy, and should be read down where possible and struck down where not.
3. Give two ways in which a wide discretion can be saved. By a policy or standard found in the Act itself, and by published guidelines made by the authority, departure from which then requires reasons.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.