Indian Law: Failure to Exercise Discretion

In life, we exercise discretion about making decisions on things that are within our span of control. We take it for granted that we have the discretion to do something that can change or affect the quality of a product or service. It is not too different under Indian law either. Under the provisions of Indian law on administration, some administrative authorities are conferred with discretionary powers. The purpose of bestowing such powers is that an authority must exercise the powers on its own. Inability to exercise such powers, in a proper manner, amounts to failure to exercise discretion at the right time. Failure to exercise such powers may result against the public interests.

Indian Law: Instances of Failure to Exercise Discretion

Under Indian law, the following circumstances may amount to failure of an administrative authority to exercise discretionary powers:

Subdelegation

The discretionary power conferred to an authority shall be practiced only by him. Suppose you exercise the power of sub-delegating a task that requires you to execute it, based on the trust placed in your, your act of sub delegation amounts to a violation of law.  The sub delegation of such power to any other authority is prohibited under the Indian laws.

Non-Application of Mind

The empowered authority shall logical apply his mind, while exercising such power. Suppose you are in charge and you do not properly review the facts and circumstances pertaining to a matter given to you to decide, it will be necessary to prove that your decision was neither arbitrary nor vague.

Acting under Dictation

Sometimes an empowered authority does not exercise its power, but it acts under the dictation of a superior authority. In such case, the concerned authority pretends to act on its own. Suppose this power is actually exercised by another authority. If that happens, such an act of omission by the authority shall amount to non-exercise of power, under the Indian law.

In a landmark case, Commissioner of Police v. Gordhan Das Bhanji, A.I.R. (1952) S.C. 16, a question arose pertaining to the power of the commissioner to grant or cancel licenses. The license was granted by the commissioner, for construction of a cinema hall. However, later on the direction of the State Government, he cancelled the license. The court struck down the order of cancellation and held that the commissioner has not applied his own mind, but had acted under dictation.

Imposing Fetters

An empowered authority shall exercise his power after considering each case separately. Take this simple principle to heart at work – do not apply fixed rules to all the cases or matters on which you have to take a decision. Adopting and applying any general rule, to all the cases, shall amount to failure in exercising the power under Indian law.

Non-Compliance with Procedure

Another case of failure may arise, when the authority had complied with the mandatory procedural requirement. Suppose there is a mandatory provision that requires the administrative authority to consult another authority, before taking the final decision. However, failure to do so will be considered as failure in exercising the discretionary power.