Fettering a Discretion by a Self-Imposed Rule
Chapter Sixty-Two
Syllabus topic 4, "Grounds of Review"
Pages 187 to 189 of 430
In one line
An authority may have a policy, but it may not have a policy so rigid that it never looks at the case in front of it.
In the wording a student can write in an exam: an authority which has been given a discretion must keep it, and may not disable itself from exercising it in an individual case; it may adopt a general policy to guide the exercise of the discretion, provided the policy is consistent with the statute, is not applied mechanically, and the authority remains willing to consider an exceptional case on its merits.
Why a policy is lawful
Because the alternative is worse. An authority deciding a thousand applications a year without any policy would be arbitrary, inconsistent and slow, and the applicants would have no idea what to expect. Consistency is a virtue in administration, and a published policy also creates a legitimate expectation, which protects the citizen.
Why a rigid policy is unlawful
Because the statute gave the authority a discretion in each case, and a policy applied without exception converts the discretion into a rule the authority was never empowered to make. In substance the authority has legislated, without the power to legislate.
The forms of fettering
A rigid policy. No exceptions, ever.
A contract. An authority which binds itself by contract not to exercise a statutory power in a particular way has fettered itself, and the contract does not prevent the exercise.
A representation or an undertaking, which raises the difficult overlap with legitimate expectation and promissory estoppel dealt with in [Legitimate Expectation in India: Procedural and Substantive].
Delegation of the discretion, which is [Unlawful Sub-Delegation of a Discretion].
The rule in three propositions
- The authority may adopt a policy to guide the exercise of a discretion.
- The policy must be consistent with the statute, so a policy which pursues an object the Act does not contemplate is bad as an improper purpose.
- The authority must keep its ears open. It must be willing to listen to anybody with something new to say, and to depart from the policy in a proper case.
The Indian setting
Two Indian doctrines carry most of the weight here.
Article 14. Applying a policy mechanically to cases which are materially different is unequal treatment, and E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555, makes arbitrariness a violation.
Legitimate expectation. A published policy binds the authority to consider it, and departing from it without reason is arbitrary: State of Jharkhand v. Brahmputra Metallics Ltd., decided on 1 December 2020, holds that a State which makes a representation in a published policy is bound by the doctrine of legitimate expectation, that the doctrine rests on fairness in government dealing, and that a failure to act on its own policy without reasonable justification is arbitrary and violates Article 14.
Fettering a Discretion by a Self-Imposed Rule
So in India the two errors are symmetrical: applying a policy rigidly is a fetter, and abandoning a published policy without reason is a breach of legitimate expectation. The authority has to steer between them, and the steering is done by giving reasons.
A worked example
A State scheme provides for the grant of compassionate appointment to a dependant of a government servant who dies in harness, and a circular says that no application made more than one year after the death shall be entertained. A widow applies fourteen months after the death, explaining that she spent the first year in hospital after an accident, and her application is rejected in one line citing the circular.
The circular is a lawful policy: compassionate appointment is meant to meet immediate distress, so a time limit is consistent with the object. The rejection is unlawful, because the authority applied the policy mechanically to a case which on its face was exceptional and did not consider whether to relax it. The order will be set aside with a direction to consider the explanation, which is the classic remedy: not a direction to appoint, but a direction to decide with an open mind.
Distinctions that carry marks
| A lawful policy | An unlawful fetter | |
|---|---|---|
| Object | Consistent with the Act | Pursues something the Act does not contemplate |
| Application | Guides, and yields to an exceptional case | Applied mechanically, no exceptions |
| Reasons | Given where the policy is departed from, and where it is applied to a case said to be exceptional | None |
| Effect | Consistency, and a legitimate expectation | The discretion is destroyed |
What this does NOT mean
It does not mean every applicant is entitled to an exception. He is entitled to have the request for one considered.
It does not mean the policy must be published. But an unpublished policy applied to the public is itself objectionable, because the citizen cannot address it.
It does not mean the authority may change its policy freely. It may, in the public interest and prospectively, but it must give reasons, which is Brahmputra Metallics.
Quick revision
A discretion must be kept. A policy is lawful if it is consistent with the statute, is not applied mechanically, and yields to an exceptional case considered on its merits. Fettering also occurs by contract, by an undertaking, and by delegation. In India rigid application is arbitrary under Article 14, and departing from a published policy without reason breaches a legitimate expectation, which is Brahmputra Metallics; the way between the two is to give reasons.
Fettering a Discretion by a Self-Imposed Rule
Test yourself
1. State the three conditions of a lawful policy. That it is consistent with the statute, that it is not applied mechanically, and that the authority remains willing to consider an exceptional case on its merits.
2. Can an authority bind itself by contract not to exercise a statutory power? No. Such a contract does not prevent the exercise of the power, because an authority cannot fetter a discretion the statute gave it.
3. What is the symmetrical error to fettering, in Indian law? Abandoning a published policy without reasonable justification, which breaches a legitimate expectation and is arbitrary under Article 14: Brahmputra Metallics.
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.