Administrative Discretion and Article 14: Constitutional Control of Executive Decision-Making

Author

P Logarani


Abstract

 The modern administration is based upon discretionary powers. Administrative agencies carry out licensing, regulation, contracting, and punishing according to laws which give much of the actual discretionary power to the executive branch. This is inevitable due to the highly specialized and dynamic nature of the administration. However, the problem is that discretionary power without any structure may easily turn into an arbitrary one. In this respect, Article 14 of the Constitution of India has turned into the most effective instrument in preventing arbitrary actions by the government and this article is explored in the paper.The paper examines the judicial tests currently applied to assess administrative discretion from traditional "Wednesbury unreasonableness" to the higher burden of proving proportionality, and raises the question of when this exercise crosses the line into adjudication of the substance of the decision, rather than simply legality. A quick reference to British and American law regarding administrative process is provided to demonstrate how a more methodical standard for India could be framed, and finally an argument is made in favor of codifying rather than litigating administrative procedure.



Keywords

Administrative discretion; Article 14; arbitrariness doctrine; judicial review; proportionality; Wednesbury unreasonableness; rule of law; separation of powers.



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References


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