This article has been authored by Vaidehi Gupta, a third-year student at Tamil Nadu National Law University, Tiruchirappalli.
The Indian Constitution provides for the office of both the President & the Governor who are the constitutional or figurehead of the Centre & the State respectively. Albeit at different planes, they are roughly conferred with the same Executive, Legislative & Judicial powers. Amongst the varieties of powers deliberated to both the President & the Governor, one of the natures of the powers is the Discretionary Powers which can be wielded by both the heads suitable to the circumstances as it deems fit to them on their own foresight & prudence.
In common parallel, administrative or executive discretion is the power to choose from the alternatives in the absence of predetermined parameters. There are no criteria pre-decided now to select any alternatives. Discretion refers to the power to choose or select from amongst the various available alternatives subject to rules of reason & justice, it has the predetermined criterion. At the leading edge, one of the questions that arises is what is the extent or ambit of Judicial Review of the discretionary power exercised by the executive. In India, the Government’s Executive wing (President & Governor) exercises plentiful discretionary powers delegated by & in accordance with the Indian Constitution. Fascinatingly, the discretionary powers of a governor are mentioned overtly in the constitution whilst the same is not for the President, it is only understood or derived from the provisions. For the purpose of maintaining the checks & balances & to ensure that they do not outdo or exercise the powers conferred arbitrarily, judicial review is the crucial gizmo required. The basis on which the executive’s power exercising is judicially reviewed must be in the interest of checks & balances, constitutionalism, Rule of Law, Separation of Power etc.
Discretionary Powers of the Executive
1. Aid & Advice of the Council of Ministers
According to Article 74 & 163 of the Indian Constitution, the President & the Governor in the exercise of their functions, act in accordance with the aid & advice rendered by the Council of Ministers (hereinafter CoM). The same was reaffirmed in Shamsher Singh (1974) vis-à-vis Ishwar Chand Agarwal (1969) , though he may require CoM to reconsider such advice either generally or otherwise at his discretion. In contrast, the Governor is required to wield his functions or any of them at his discretion. The Governor has more discretion as compared to the President. Under Article 163(1), the Governor can exercise his discretionary power only if there is a compelling necessity to do so which might arise either from the expressed provision or from the rules & order made under the Constitution.
As per Article 74(2), the advice tendered by the ministers to the President cannot be inquired into in any court. In Rameshwar Prasad (2006) ,it was put forth that the court can judicially review into the aid & advice of CoM to the President & the Governor under Article 74(2) & 163(3) essentially on two grounds (i) On what basis aid & advice is tendered (ii)Action carried out subsequent to the advice. The basis of the advice can be looked into the material on which the advice was proffered, though the line between the material & advice is very blur Addedly, it is to be borne in mind that there ought to have some power for transaction to happen between CoM & the President vis-a-vis the Governor which is open to the Judicial Review.
2. Appointment at Pleasure of the President
The President has the discretion to make the appointments as pleasure, for reference it has been mentioned in Articles. 75, 76, 156, 164 & 165. Reading all these articles in resonance, the catchy phrases that are seen are: ‘Pleasure of the President’, ‘Officers subordinate to him’, ‘shall be appointed by the President’. The Attorney General, Civil Services Personnel, Prime Minister & CoM serve at the ‘Pleasure of the President’. Quite a while, ‘Pleasure of the President’ was considered as the ‘Satisfaction of the President’ thereby the President had absolute power to remove these officials at his own whim & fancy as interpreted & held in Sardari Lal (1971) .But afterward, the interpretation of the ‘Pleasure of the president’ was limited in Shamsher Singh (1974) & now the ‘Pleasure of the President’ now means ‘Satisfaction of the CoM’.
Hence, any officials who work according to the ‘Pleasure of the President’ of India which discursively means ‘Pleasure of the CoM’. In B.P. Singhal (2010) it was stated that that the withdrawal of presidential pleasure resulting in removal of a Governor is justiciable, by way of judicial review. The order of removal is compliant to judicial review. In a democracy based on Rule of Law, no authority has any unfettered & unreviewable discretion. Discretion is controlled by the Rule of Law & Constitutionalism. All powers vested in all public authorities, are intended to be used only for public good. Therefore, any order of untimely removal of a Governor will be subject to judicial review. Judicial review has developed to the point where it is conceivable to state that powers, both statutory or under the prerogative are no longer intrinsically unreviewable. Courts are charged with the responsibility of adjudicating upon the manner of exercise of public power, its scope & its substance. As will be seen, despite the fact discretionary powers are employed, they are susceptible to judicial review.
3. Article 356- Provisions in case of failure of constitutional machinery in States
It confers a power upon the President to be exercised only where on receipt of the report from the governor or otherwise he is satisfied that a situation has arisen where the government of a State cannot be carried consistent with the Constitutional provisions as reiterated in, Rameshwar Prasad (2006). Being the power in the hands of the President & the Governor, Article 356 shouldn’t be invoked neither illegally nor improperly
The court can judicially review only if there is any relevant material on the ground to indicate the breakdown of constitutional machinery & can look at the precursors why such advice is given & then say if there is enough relevant material for the decision to make otherwise court can’t look into the advice rendered & subsequently action taken, as then it might lead to the political disability & collapsing of CoM. Courts can look into the Governor’s report when
(i) No materials is/are involved,
(ii) When the material involved or provided is immaterial (looking at the relevancy & not the adequacy)
(iii) Malafide exercise of his powers.
In S.R. Bommai (1994), it was said that the President cannot exercise his powers under the constitution on wish or whim. He has to have the facts, circumstances which can lead a person of his status to form an intelligent opinion & his actions must appear to be called for & justifiable under the constitution if challenged in a court of law for the purpose of judicial review. The court will not interfere in his discretion to form an opinion on the situation but if there is no basis or justification for the order under the constitution, the courts will have to perform their duty cast upon them which is, maintaining the secrecy & separation of powers envisaged under the constitution.
4. Ordinance promulgation power
Under the Article 123 & 213 of Indian Constitution, the President vis- a- vis the Governor respectively has the power to promulgate the ordinance. In R.K. Garg (1981) it was said that, the ordinance making power of the executive does not make the executive as the parallel legislature & is subject to be judicially reviewed. It is a power exercisable only when both the Houses of Parliament are not in session & it has been conferred ex-necessitate in order to enable the executive to meet an emergent situation & the executive is clearly answerable to the Legislature.
Furthermore, the law legislated by the President by promulgating an Ordinance is of strictly definite period. Though, in this case the courts have consistently refrained from interfering with the policy matters on the account that they are not amenable to judicial review unless it can be established that the policy is conflicting to any statutory provision or the Constitution or formulated with malafide intention or acted arbitrarily & hence it is left on the discretion of the judgment of the executive. The court cannot usurp or abdicate the non-exceedable parameters of the judicial review. In A.K. Roy (1981) the Supreme Court while examining the constitutionality of the National Security Ordinance, 1980, the court said that the ordinance promulgation discretionary power of the President isn’t completely non-justiciable while examining the constitutionality & is not beyond the judicial review of the court & it can be exercised only at substantial grounds & not otherwise at every casual challenge. In Krishna Kumar Singh (2017) & D.C. Wadhwa (1986) the court inquiry or the extent of judicial review is limited to ascertaining whether there is some relevant material on the basis of which the decision to promulgate an ordinance was taken. In T. Venkata Reddy (1985) & State of Orissa (1961) the Supreme Court overruled its own decision & held that the satisfaction of the President cannot be called in question in the Court of law & is out of Judicial Review.
5. Pardoning Power of the Executive
Articles 72 & 161 of the Indian Constitution grants pardoning power to the President & the Governor respectively along with the powers to suspend, remit or commute the sentences in certain cases. However, the pardoning power of both the heads is not absolute. It is administered by the aid & advice of the CoM. The constitution doesn’t provide any mechanism to question the legality of the mercy jurisdiction conferred to the constitutional heads, In Maru Ram (1980) it was held that pardoning power of the President & the Governor should be exercised on the advice of the central & state government respectively & not at their own discretion & thusly the guidelines should be given to exercise the pardoning power. In Kehar Singh (1988) the Supreme Court recapped its former position that the pardoning power of the President is an act of grace & therefore can’t be claimed as a matter of right, it is an entirely administrative power & not justiciable. Guidelines regarding the pardoning power shouldn’t be given as the factual situation as it may differ on case basis.
In, Swaran Singh (1998) the court forbade the order of the Governor & said that if the power is exercised arbitrarily, malafide or in absolute disregard & is defeating the finer canons of constitutionalism it is subject to judicial review. In Epuru Sudhakar (2006) , Soli Sorabjee said, the number of remissions exercised was so high seen as the free parliamentary power used by the President & the Governor & therefore need the guidelines to exercise the pardoning power. The court has given a small window for judicial review of the pardoning powers of the President & the Governor for the purpose of ruling out the arbitrariness. If the order has been passed (i) without the application of mind, (ii) is malafide (iii) passed on extraneous or wholly irrelevant consideration, (iv) relevant material is not considered, (v) victimized of arbitrariness it is open & subject to judicial review.
The executive is conferred with the discretionary powers to drive the process of governance smoothly in the country & to serve the citizens in best possible way. But these discretionary powers are subject to the judicial review to certain extent. Judicial review is the soul of our Constitution, it is an intrinsic power of the court & modus operandi for the public accountability of the executive process & maneuvers the check upon them. To prevent the repudiation of the Rule of Law & constitutionalism which might happen on exercise of the discretionary powers by the executive, judicial review is the vital gadget required.